APPELLEE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
13TH COURT OF APPEALS NUECES COUNTY
Newell, J., delivered the opinion of the Court, in which
Alcala, Richardson, Yeary, Keel and Walker, J.J., joined.
Yeary, J. filed a concurring opinion, in which Walker, J.,
joined. Keller, P.J., filed a dissenting opinion, in which
Keasler and Hervey, J.J., joined.
the State charges someone with tampering with physical
evidence, is the specific identity of the tampered-with
evidence an essential element of the offense? We agree with
the State and the court of appeals that it is not. State
v. Zuniga, 13-14-00316-CR, 2015 WL 4381064, at *3 (Tex.
App.-Corpus Christi July 16, 2015) (mem. op.) (not designated
for publication). However, the court of appeals does not
appear to have addressed whether the language in the
indictment provided adequate notice of the charged conduct,
so we remand the case to give them an opportunity to do so.
police officer pulled Zuniga over after she ran a stop sign
in front of her home. During the stop, the officer observed a
bottle of medicine in Zuniga's vehicle. When Zuniga was
unable to produce a valid prescription for the syrup, the
officer arrested her and placed her in the back of his police
car. Soon after, the officer observed Zuniga reach into her
groin area and pull something out with her hands cupped. The
officer then observed Zuniga move her hands towards her mouth
and lean her head down as if to swallow
"something." The officer took Zuniga to the hospital
where medical professionals pumped Appellee's stomach and
performed an x-ray. They did not find any illegal substance
or a baggie. The State neither tested the results of
Appellee's stomach purge for an illegal substance nor
requested any testing of her blood.
State indicted Zuniga on tampering with physical
evidence. This count in the indictment appeared as
the State did not allege what Zuniga had attempted to
"alter, destroy, or conceal." It merely left a
blank space in the indictment. Zuniga filed a "Motion to
Quash and Exception to Form of the Indictment." During
the hearing on that motion, the State made the handwritten
notation-"unknown substance"-on the indictment
itself. Zuniga amended her motion to quash in light of the
State's amended pleading.
argued that the indictment failed as a matter of both form
and substance. Specifically, she complained that the
indictment failed to set forth the offense in plain or
intelligible language and that the indictment failed to
allege two necessary elements of the offense. Finally, she
argued that the indictment did not adequately inform her of
the act(s) the State intended to rely upon to constitute the
crime of tampering with evidence.
State responded at the hearing that the State was not
required to allege the specific identity of the tampered-with
evidence because Zuniga's commission of the offense
rendered that evidence unidentitifiable. Then, the State
argued that the elements of the offense only required it to
prove that Zuniga altered, concealed, or destroyed some
"thing." According to the State, whether that
"thing" amounted to evidence could be proven
through the circumstances of its destruction. In other words,
the State appeared to argue that the identity of the
tampered-with evidence was an evidentiary matter that did not
have to be pleaded in the indictment.
trial court saw two problems with the State's case.
First, the trial court explained that the State was required
to give more notice than simply alleging a "thing."
Second, the trial court expressed concern that the State had
to prove that Zuniga knew an investigation was pending. After
a break in the hearing, the trial court granted Zuniga's
motion to quash, stating that "the requirements of 21.02
of the Texas Code of Criminal Procedure had not been
met." The trial court further held that the indictment
failed to inform the defendant of the acts that the State
would rely upon to constitute the crime of tampering.
State appealed the trial court's ruling. The State argued
that it was not required to allege the specific identity of
the tampered-with evidence in the indictment because it would
not be required to prove that fact in order to secure a
conviction. According to the State, the "thing"
tampered with was not an element of the offense that needed
to be pleaded; it was merely an evidentiary matter that the
State was not required to allege in the indictment. In other
words, the State argued that the specific identity of the
tampered-with evidence was not an element of the offense.
replied that simply adding "an unknown substance"
as the object of a tampering charge did not provide her with
sufficient notice of what she was alleged to have tampered
with in violation of the law. She argued that the indictment
was insufficient because it failed to provide any description
of the "thing" she was alleged to have tampered
with. Consequently, Zuniga argued the notice in the
indictment did not adequately inform her of the acts the
State would rely upon to prove that she had committed the
crime because the State had not alleged the evidence she had
court of appeals framed the issue in the case as a matter of
determining whether an "unknown substance" can be a
"thing" under the tampering statute.
Zuniga, 2015 WL 4381064 at *2. As the court of
appeals phrased it:
We are asked to determine whether an "unknown
substance" can be a "thing" under section
37.09 of the penal code such that an indictment alleging the
same complies with the constitutional notice requirements and
the Texas Code of Criminal Procedure.
Id. The court of appeals properly set out the law
regarding Zuniga's right to notice of pending criminal
charges. Id. It also correctly observed that
generally, when an indictment tracks the language of a penal
statute, it will satisfy constitutional and statutory
court of appeals analyzed the elements of the offense set out
in the tampering statute and determined that the identity of
the physical evidence at issue was not an element of the
offense. Zuniga, 2015 WL 4381064 at *2. According to
the court of appeals, the "identity of the putative
evidence destroyed will be relevant at trial . . . not
because it is an element of the offense, but because it is
evidence of intent." Id. at *3. Because it was
not an element of the offense, the ...