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Stahmann v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 4, 2018

KARL DEAN STAHMANN, Appellant,
v.
THE STATE OF TEXAS, Appellee.

         On appeal from the 207th District Court of Comal County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          OPINION

          DORI CONTRERAS, JUSTICE.

         Appellant Karl Dean Stahmann was convicted of tampering with physical evidence, a third-degree felony. See Tex. Penal Code Ann. § 37.09 (West, Westlaw through 2017 1st C.S.). He was sentenced to ten years' imprisonment, with the sentence suspended and community supervision imposed for ten years. Stahmann raises seventeen issues on appeal, arguing that: (1) the evidence was insufficient to support the conviction; (2) the trial court erred in denying his motion to quash part of the indictment; (3) the trial court erred in denying certain jury charge instructions; (4) his conviction was barred by the doctrine of collateral estoppel; and (5) the prosecutor made improper arguments.

         We find insufficient evidence to support the tampering conviction, but sufficient evidence to support a conviction for attempted tampering with physical evidence. Accordingly, we reverse and remand.[1]

         I. Background

         This case arises from a two-vehicle collision on State Highway 46 outside of New Braunfels. Norberto Gonzalez testified that he was driving his SUV with his wife and son as passengers, on July 1, 2012 at around 4:30 p.m., when he saw a van approaching from the opposite direction. Gonzalez testified that he saw the van "starting to turn toward us, and I'm thinking maybe he sees me; he'll stop. But he kept going, and we hit each other." Gonzalez stated the van did not have its turn signal activated. He testified he was driving around fifty miles per hour at the time, that it had been raining earlier in the day, and that the van was slowing down as it started to turn. After the collision, Gonzalez remembered the SUV spinning around and the air bag deploying. He saw blood on the windshield of the van and on the face of its driver. On cross-examination, Gonzalez stated that there was a housing subdivision off to the side of the road, into which it appeared the van was turning. He conceded that he had not told police that the van did not have its turn signal activated.

         Two bystanders, Ronnie Ballard and Michael Freeman, arrived at the scene and called 911. Ballard testified that he saw two people inside the van. When Ballard approached the van, the driver-whom Ballard identified as Stahmann-exited. Stahmann was bleeding from his forehead, was "very upset" and "agitated, " and "was complaining he couldn't see out of one eye." Ballard testified that he was about ten or fifteen feet away from Stahmann when he observed the following:

The driver walked towards the fence that was-there was a gated fence right near the accident scene. At that time, I saw him throw something over the-over the fence into-near a tree into some small, you know, kind of shrubbery at the bottom of that tree. It looked like-looked to be, like, a prescription medicine bottle. . . . [A]s I walked over towards to see-you know, kind of get a better look to see, you know, where the bottle had went, he started asking me what I was doing over there, what was I looking for, why am I over there. You know, he was angry. . . . [H]e wanted us to call his dad. He kept asking to leave and go-he said, I just live right up-my dad lives right up the street. I need to go see him. I need to leave here. And we just kept asking [sic] him, No. You need to stay until somebody arrives on the scene.

         Ballard also stated that, when he and Freeman came upon the scene, he saw opened beer cans inside the van, and he noticed that a couple of the cans had fallen out of the van. He stated that Stahmann seemed "disheveled from the accident" but otherwise did not appear confused or disoriented.

         Freeman testified that Stahmann did appear confused and disoriented and was "bleeding real bad" from his head. Freeman tried calling Stahmann's father, at Stahmann's request, but there was no answer. Freeman corroborated Ballard's account that Stahmann threw what appeared to be a prescription medication bottle over the wire fence next to the accident scene. Freeman stated that, as he and Ballard were walking away from where the pill bottle was, Stahmann "got real nervous and started questioning us, why we were over there and what were we looking for."

         Terry Aikman, a retired paramedic, was passing by the accident scene and stopped to give assistance. He testified that Stahmann had a large gash over his left eye and was bleeding profusely. According to Aikman, Stahmann did not appear intoxicated but seemed to be "unaware of his situation" due to shock. He stated that, pursuant to his training, he asked Stahmann four questions to test whether he was "alert and oriented"- "the president, the day, the month, what year"-and that Stahmann answered all of the questions correctly, indicating that "he's aware of his surroundings" even though he was in pain.

         According to Ballard and Freeman, when police arrived, they advised officers that they saw Stahmann throw something over the fence, and they pointed out where it was. Police were able to retrieve the item that was thrown over the fence-an ordinary orange prescription medication bottle with a label and a white cap. The officer who retrieved the bottle stated that it was sitting on top of the grass on the other side of the fence. The bottle contained four intact white tablets along with several broken ones and some powder. The label on the bottle stated the name "James Castaneda" and listed its contents as "promethazine tab 25 mg." A Department of Public Safety chemist tested the pills and determined that they contained promethazine, a prescription cough suppressant. The chemist testified that promethazine is classified as a "dangerous drug" and that it is illegal to possess it without a prescription.

         The jury charge included instructions on the offenses of tampering with physical evidence and attempted tampering with physical evidence. The jury found Stahmann guilty of the former offense and, pursuant to the charge instructions, did not answer the question regarding the latter offense. This appeal followed.

         II. Discussion

         A. Evidentiary Sufficiency

         By his first issue on appeal, Stahmann argues that there was insufficient evidence to support his conviction for tampering with physical evidence. By his second issue, he contends that the trial court erred by denying the motion for instructed verdict he filed at the close of evidence. We address the issues together. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (noting that "a complaint about overruling a motion for directed/instructed verdict is in actuality an attack upon the sufficiency of evidence to sustain the conviction").

         1. Standard of Review and Applicable Law

         In reviewing sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Griffin v. State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We resolve any evidentiary inconsistencies in favor of the judgment, keeping in mind that the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give their testimony. Brooks, 323 S.W.3d at 899; see Tex. Code Crim. Proc. Ann. art. 38.04 (West, Westlaw through 2017 1st C.S.) ("The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony."). We determine, based upon the cumulative force of all of the evidence, whether the necessary inferences made by the jury are reasonable. Griffin, 491 S.W.3d at 774.

         Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240.

         Here, a hypothetically correct charge authorized by the indictment would instruct the jury to find Stahmann guilty of tampering with physical evidence if: (1) knowing that an investigation or official proceeding was pending or in progress, (2) he altered, destroyed, or concealed a bottle of pills (3) with intent to impair its verity or availability as evidence in the investigation or official proceeding; or (1) knowing that an offense was committed, (2) he altered, destroyed, or concealed a bottle of pills (3) with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense. See Tex. Penal Code Ann. § 37.09(a)(1), (d)(1); see also Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) ("It is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted."); Anderson v. State, 717 S.W.2d 622, 631 (Tex. Crim. App. 1986) (noting that it is proper for an indictment to allege various manners and means of committing an offense in the conjunctive, and for those different methods of committing the offense to be charged to the jury in the disjunctive).

         A person acts with knowledge with respect to circumstances surrounding his conduct when he is aware that the circumstances exist. Tex. Penal Code Ann. § 6.03(b) (West, Westlaw through 2017 1st C.S.). A person acts with intent with respect to the result of his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a).

         2. Destroyed, Altered, or Concealed

         Stahmann first argues that the evidence was insufficient to show that he destroyed, altered, or concealed the bottle of pills, as alleged in the indictment. The State concedes that there was no evidence that Stahmann destroyed the bottle. See Williams v. State, 270 S.W.3d 140, 146 (Tex. Crim. App. 2008) (interpreting "destroyed" as "ruined and rendered useless"). It argues instead that the evidence was sufficient to allow jurors to conclude that he altered or concealed the bottle.

         "Alter" is not defined by statute but may be commonly understood to mean "to change; make different; modify." Id. (citing Webster's Unabridged Dictionary at 52 (2nd ed. 1983)); see Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (noting that "undefined statutory terms are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance"). The State notes that, according to photographs admitted as evidence at trial, the label on the pill bottle was partially torn and its text partially smeared when it was recovered by police. The State cites Blanton v. State, No. 05-05-01060-CR, 2006 WL 2036615 (Tex. App.-Dallas July 21, 2006, pet. ref'd) (not designated for publication), in arguing that it was reasonable for the jury to infer that this "alteration" was caused by Stahmann throwing the bottle over the fence and onto the ground. In Blanton, the appellant threw two plastic baggies out of his window as he was being pursued for a traffic violation. Id. at *1. Police later recovered the baggies, which were ripped but still contained a measurable amount of cocaine and marijuana. Id. The Dallas Court of Appeals held that there was sufficient evidence to show that appellant "altered" the baggies because, even though there was no evidence as to the appearance of the baggies prior to the time they were thrown out of the car window, the jury could rationally infer that the rips in the bags were caused by appellant. Id. at *2.

         The State contends that, as in Blanton, the jury in this case could have reasonably inferred that Stahmann altered the pill bottle from evidence that (1) he threw the bottle over the fence, (2) it had been raining earlier in the day, and (3) some of the text printed on the label had been smudged.[2] We disagree. There was no evidence indicating what the bottle looked like prior to the time Stahmann threw it over the fence, and although the evidence established that it had been raining earlier in the day, there was nothing showing that the area where the pill bottle was recovered was wet or that Stahmann's throw could have otherwise caused the smudges. For the jury to conclude from the evidence that Stahmann altered the bottle would therefore be an unreasonable inference, amounting to no more than mere speculation. See Gross v. State, 380 S.W.3d 181, 188 (Tex. Crim. App. 2012) ("Juries are permitted to draw reasonable inferences from the evidence, but they are not permitted to draw conclusions based on speculation."). Blanton is distinguishable because the allegedly altered pieces of evidence in that case-ripped bags of drugs-were in a functionally useless state when they were recovered. See 2006 WL 2036615, at *2. It was reasonable for the jury in Blanton to have inferred that the rips in the bags were caused when the appellant threw them out of his car window, because it is reasonable to assume that the appellant would not have been carrying his drugs around in already-ripped bags. Here, there is no similar reason for the jury to have assumed that the pill bottle's label was intact-that is, that it had no tears or smudging- prior to the time it was thrown.

         Next, we consider whether there was sufficient evidence that Stahmann concealed the pill bottle. Like "alter, " "conceal" is not defined by statute, but the term may be generally understood as "to hide, to remove from sight or notice, or to keep from discovery or observation." Thornton v. State, 401 S.W.3d 395, 398 (Tex. App.-Amarillo 2013), rev'd on other grounds, 425 S.W.3d 289 (Tex. Crim. App. 2014); Rotenberry v. State, 245 S.W.3d 583, 588-89 (Tex. App.-Fort Worth 2007, pet. ref'd); see also Villarreal v. State, No. 13-15-00014-CR, 2016 WL 8919852, at *5 (Tex. App.-Corpus Christi Dec. 8, 2016, no pet.) (mem. op., not designated for publication). In Thornton, the Amarillo Court of Appeals found insufficient evidence of concealment where the appellant pulled a crack pipe from his pocket and dropped it to the ground in the presence of two police officers, because the pipe never left the officers' sight. 401 S.W.3d at 397, 399-400. In Villarreal, this Court found insufficient evidence of concealment where the appellant took a pill bottle out of his pocket and tossed it underneath a car while being pursued by a Wal-Mart loss prevention officer. 2016 WL 8919852, at *1-2 (noting that the loss prevention officer testified that the pill bottle "was not hidden in any way").

         We find the instant case to be analogous to Thornton and Villarreal. Ballard testified that he observed Stahmann throw the pill bottle over the fence and into some "shrubbery at the bottom" of a tree, but he stated that the fence was a "chain fence, " not a "full fence, " and that he "could see all the way to the ground on the other side." Freeman testified that he saw the pill bottle in Stahmann's hand, in the air, and on the ground on the other side of the fence. He agreed that he "never lost sight of it" and that he pointed it out to police as soon as they arrived. Freeman stated that he could see it "[as] plain as day right there in the-he tried to throw it in the brush, but it didn't make it."

         Comal County Sheriff's Deputy Chris Koepp, the first officer to arrive on scene, testified that when he arrived he "[o]bserved an object over the fence." He agreed that he was "able to very clearly see it" and he was able to identify it as an orange prescription medication bottle with a label and a white cap. Koepp agreed with the prosecutor that the bottle had been "concealed, " but on cross-examination, he explained that the pill bottle was "sitting above the grass." He stated that he could see the bottle through the fence. According to Koepp, a fellow officer tried unsuccessfully to retrieve the bottle through the fence using an extendable baton, but the officers were eventually able to retrieve the bottle by gaining access through a nearby gate.

         There was no evidence from which a juror could have reasonably inferred that the pill bottle was ever hidden, removed from sight or notice, or kept from discovery or observation. See Thornton, 401 S.W.3d at 398; see also Thornton, 425 S.W.3d at 307 (Keller, P.J., concurring) ("Whatever else 'conceal' might mean in the context of the tampering with evidence statute, it at least means to remove from sight.").[3] Instead, the evidence established that the pill bottle remained in full sight of bystanders from the time it was thrown by Stahmann, and of police from the time they arrived, until the time it was retrieved as evidence.

         The State cites Munsch v. State, No. 02-12-00028-CR, 2014 WL 4105281, at *8 (Tex. App.-Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for publication) and Lujan v. State, No. 07-09-0036-CR, 2009 WL 2878092, at *2 (Tex. App.-Amarillo Sept. 9, 2009, no pet.) (mem. op., not designated for publication). These unpublished cases are distinguishable or inapposite. In Munsch, the appellant was a passenger in a car stopped by police. 2014 WL 4105281, at *1. The driver of the car told police at the scene that, as police were in pursuit, the appellant had thrown a bag of methamphetamine out of the passenger-side window; police then went back and retrieved the bag, which contained eighteen grams of methamphetamine. Id. at *2. The court found sufficient evidence that appellant concealed the bag from the officers, noting that the officers "may never have returned to locate it" had the driver not informed them of its existence, and that the officer who retrieved the bag "had difficulty locating it with his flashlight given the darkness of night." Id. at *8. The State argues that the instant case is similar because, as in Munsch, the officers were only made aware of the existence of the allegedly concealed evidence when a "third-party witness volunteered the information." But there is nothing in this case indicating that the officers would not have found the pill bottle had Ballard and Freeman not alerted them to it. Instead, the testimony unanimously established that the pill bottle was plainly visible from the accident site, and that it was not difficult to locate in the afternoon daylight.

         In Lujan, the appellant, while being stopped by an officer who suspected a drug transaction, made a throwing motion, and the officer then found a crack pipe on the ground. 2009 WL 2878092, at *1. The court noted that, even though the crack pipe was "both intact and visible, " the jury could have lawfully inferred that "appellant attempted to prevent the pipe's discovery by throwing it away"; therefore, the evidence was sufficient to support concealment. Id. at *2. In that case, the Amarillo court conflated the actus reus and the mens rea of the offense, apparently taking evidence of the latter as sufficient to support an affirmative finding on the former. See id. (citing Lewis v. State, 56 S.W.3d 617, 625 (Tex. App.-Texarkana 2001, no pet.)).[4] We disagree with Lujan to the extent it implies that concealment may be established by mere evidence of the defendant's intent. Concealment and intent are separate elements of the offense and must each be supported by sufficient evidence. We further disagree with the Lujan court to the extent it implies that evidence of an attempt to conceal is sufficient to show actual concealment. See id. (noting that the jury could have inferred that "appellant attempted to prevent the pipe's discovery by throwing it away" and stating it was immaterial "that the motion in which [appellant] engaged was insufficient to actually prevent the officer from finding or retrieving the pipe"). Actual concealment requires a showing that the allegedly concealed item was hidden, removed from sight or notice, or kept from discovery or observation. See Thornton, 401 S.W.3d at 398. Such evidence was lacking here.

         Finally, the State directs us to a case arising out of the same accident, in which Stahmann was found to have violated the terms of his unrelated community supervision by, among other things, tampering with physical evidence on July 1, 2012. See Stahmann v. State, No. 03-15-00068-CR, 2016 WL 3974567, at *1 (Tex. App.-Austin July 19, 2016, pet. ref'd) (mem. op., not designated for publication). There, the Austin Court of Appeals stated that "the trial court heard conflicting testimony about whether the pill bottle was visible where it landed on the other side of the fence" and "could have credited the testimony that the bottle 'got submerged down in some brush area' and was concealed by the bushes." Id. at *3. But no such testimony appears in the record before this Court. In our evaluation of the sufficiency of the evidence, we may not credit testimony that was not before the trier of fact at the guilt-innocence stage. See Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001).

         For the foregoing reasons, we conclude that the evidence adduced at trial was insufficient to support a finding that Stahmann destroyed, altered, or concealed the pill bottle. We sustain this part of his first two issues.

         3. Knowledge and Intent

         Stahmann additionally challenges the sufficiency of the evidence to support other elements of the charged offense.[5] First, he argues the evidence was insufficient to support the jury's finding that he acted with knowledge that an investigation or official proceeding was pending or in progress. See Tex. Penal Code Ann. § 37.09(a)(1). Next, he argues the evidence was insufficient to support a finding that he either: (1) intended to impair the verity or availability of the pill bottle as evidence in the investigation or official proceeding; or (2) intended to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense. See id. § 37.09(a)(1), (d)(1).

         The jury was charged in this case under both subsections (a)(1) and (d)(1) of penal code section 37.09. Knowledge "that an investigation or official proceeding was pending or in progress" is an essential element under subsection (a)(1), but not under subsection (d)(1). See id. Knowledge "that an offense has been committed" is an essential element under subsection (d)(1), see id. § 37.09(d)(1), but Stahmann does not challenge the sufficiency of the evidence as to this element.[6]

         We find the evidence sufficient to establish knowledge under section 37.09(a)(1). In the context of this statute, "pending" means "impending, or about to take place." Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (noting that it is presumed that every word in a statute has been used for a purpose, and interpreting "pending" in such a way as to "avoid redundancy from use of the terms 'pending' and 'in progress'" in the statute); see Barrow v. State, 241 S.W.3d 919, 923 (Tex. App.-Eastland 2007, pet. ref'd) (citing Lumpkin, 129 S.W.3d at 663); see also Carr v. State, No. 03-14-00234-CR, 2016 WL 465192, at *6 n.3 (Tex. App.-Austin Feb. 5, 2016, pet. ref'd) (mem. op., not designated for publication) ("The Lumpkin court's choice makes sense as the statute might otherwise implement a policy that allows criminals to freely destroy evidence of their wrongdoing before they actually know law enforcement officials are looking for such evidence even if they strongly suspect an investigation will occur."). The jury could have reasonably inferred that, having just been involved in a high-speed collision causing injury, Stahmann knew that a police investigation into the accident was about to take place when he threw the pill bottle.

         Under subsection (a)(1), the State was additionally required to prove that Stahmann acted with intent to "impair [the] verity or availability [of the pill bottle] as evidence in the investigation or official proceeding." Tex. Penal Code Ann. § 37.09(a)(1). Under subsection (d)(1), the State was additionally required to prove that Stahmann acted with intent "to impair [the] verity, legibility, or availability [of the pill bottle] as evidence in any subsequent investigation of or official proceeding related to the offense." Id. § 37.09(d)(1).

         Intent may generally be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Here, the bystanders who first came upon the accident scene testified that, after they saw Stahmann throw the pill bottle over the fence, Stahmann became "angry" and "nervous." According to Ballard, Stahmann expressed his desire to leave the scene of the accident. Ballard also stated that he saw open beer cans in Stahmann's vehicle, as well as some which had fallen out of the vehicle as a result of the accident. From this circumstantial evidence, a rational juror could have concluded beyond a reasonable doubt that, when he threw the pill bottle, Stahmann's conscious objective or desire was to impair the pill bottle's availability as evidence in the investigation or official proceeding which he knew was pending or in progress. See Tex. Penal Code Ann. §§ 6.03(a), 37.09(a)(1). Alternatively, a rational juror could have concluded beyond a reasonable doubt that, when he threw the pill bottle, Stahmann's conscious objective or desire was to impair the pill bottle's availability as evidence in any subsequent investigation of, or official proceeding related to, the offense which he knew had just been committed. See id. §§ 6.03(a), 37.09(d)(1).

         4. Reformation

         The State argues that, in the event we find insufficient evidence of the completed offense of tampering but sufficient evidence of the lesser-included offense of attempted tampering, we should reform the judgment to reflect conviction on the latter offense. See Tex. Penal Code Ann. § 15.01(a) (West, Westlaw through 2017 1st C.S.) ("A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended."); see also id. § 15.01(c) ("It is no defense to prosecution for criminal attempt that the offense attempted was actually committed."). Stahmann contends by his third issue that we may not do so under these circumstances.

         If an appellate court concludes that the evidence was legally insufficient to support a conviction, it must determine whether the judgment should be reformed to reflect a conviction for a lesser-included offense. See Canida v. State, 434 S.W.3d 163, 166 (Tex. Crim. App. 2014). As the court of criminal appeals explained in Thornton, reformation of the judgment is required if two prongs are satisfied: (1) in the course of convicting the appellant of the greater offense, the jury must have necessarily found every element necessary to convict the appellant for the lesser-included offense; and (2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, there is sufficient evidence to support a conviction for the lesser-included offense at trial. Thornton, 425 S.W.3d at 289, 300. An outright acquittal under these circumstances would be unjust because the result would involve usurping the fact finder's determination of guilt. Id. at 298. A court of appeals should limit the use of judgment reformation to those circumstances when the commission of a lesser offense can be established from the facts that the jury actually found. Id.

         Stahmann argues that the first prong of Thornton cannot be satisfied because subsections (a)(1) and (d)(1) of penal code section 37.09 each have distinct essential elements that the other subsection does not. He notes that other cases in which a tampering conviction was reformed to attempted tampering involved allegations made under only one subsection. See Rabb v. State, 483 S.W.3d 16, 18 (Tex. Crim. App. 2016) (appellant was charged only under subsection (a)(1)); Thornton, 401 S.W.3d at 398 (appellant was charged only under subsection (d)(1)). This case differs in that the jury was charged on two different manners of committing the tampering offense, but we find that this difference does not preclude reformation under Thornton. The jury was instructed to convict if it found all of the essential elements under either subsection, and it did convict; therefore, we presume that it found all of the essential elements under at least one subsection. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (observing that reviewing courts "generally presume the jury follows the trial court's instructions in the manner presented"). With that presumption in mind, we proceed to consider whether the jury, by its verdict, necessarily found all the elements of the attempted tampering offense. See Thornton, 425 S.W.3d at 289.

         If the jury found Stahmann guilty under subsection (a)(1), the first prong of the Thornton reformation analysis is satisfied only if the jury, by its verdict, must necessarily have found that Stahmann: (1) knowing that an investigation or official proceeding was pending or in progress, (2) with specific intent to alter, destroy, or conceal the pill bottle and (3) with specific intent to impair its availability as evidence in the investigation or official proceeding, (4) did an act amounting to more than mere preparation that (5) tended to result in alteration, destruction, or concealment of the pill bottle. See Tex. Penal Code Ann. §§ 15.01(a), 37.09(a)(1); Rabb, 483 S.W.3d at 22; Thornton, 425 S.W.3d at 300- 301. We conclude that this prong is satisfied with respect to subsection (a)(1). The first and third elements were explicitly found by the jury as essential elements of the completed tampering ...


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