Zuniga, Mary , 512 S.W.3d 902 ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1317-15
THE STATE OF TEXAS
v.
MARY ZUNIGA, Appellee
ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE 13TH COURT OF APPEALS
NUECES COUNTY
N EWELL, J., delivered the opinion of the Court, in which
A LCALA, R ICHARDSON, Y EARY, K EEL AND W ALKER, J.J., joined. Y EARY,
J. filed a concurring opinion, in which W ALKER, J., joined.
K ELLER, P.J., filed a dissenting opinion, in which K EASLER AND
H ERVEY, J.J., joined.
When 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
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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.
Facts
A 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.”1 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.
The State indicted Zuniga on tampering with physical evidence.2
1
The State stipulated at a hearing on Appellee’s m otion to quash the indictm ent that
the officer would testify at trial that he saw Appellee swallow a white substance in a baggy.
The State also claim ed that it suspected Appellee had swallowed either cocaine or a pill.
2
Based upon Zuniga’s conduct after the alleged tam pering, the State also charged
Zuniga with assault on a public servant in a separate count. The only count at issue in this
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This count in the indictment appeared as follows:
Originally, 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.
Zuniga 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
appeal, however, is the count alleging that Zuniga tam pered with physical evidence.
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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.
The 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.
The 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
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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.
The Appeal
The 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.
Zuniga 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
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she had committed the crime because the State had not alleged the
evidence she had purportedly destroyed.
The 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 requirements. Id.
The 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 court of appeals held
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that the specific identity of the tampered-with evidence did not need to
be pleaded in the indictment. Id.
We granted discretionary review to determine whether the addition
of the term “unknown substance” is sufficient to apprise a defendant of
what “thing” the State intended to prove was altered, concealed, or
destroyed. We agree with the court of appeals’ determination that the
specific identity of the tampered-with evidence is not an element of the
offense. But we remand the case to allow the court of appeals to address
whether the statutory language is completely descriptive of the proscribed
conduct such that it provided adequate notice.
Standard of Review
The sufficiency of the indictment presents a question of law. Smith
v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). Appellate courts
review a trial judge’s rulings on a motion to quash a charging instrument
de novo. State v. Barbernell, 257 S.W.3d 248, 251-52 (Tex. Crim. App.
2008). The trial court’s ruling should be upheld if it is correct under any
theory of law applicable to the case. State v. Rhinehart, 333 S.W.3d 154,
161 (Tex. Crim. App. 2011) (applying ordinary rules of procedural default
to a State’s appeal of a trial court’s order quashing the indictment).
The Texas and United States Constitutions grant a criminal
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defendant the right to fair notice of the specific charged offense. U.S.
C ONST. amend. VI; T EX. C ONST. art. 1, § 10; T EX . C ONST. art. V, § 12b;
Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007); see
also State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008).
“The charging instrument must convey sufficient notice to allow the
accuse to prepare a defense.” Curry v. State, 30 S.W.3d 394, 398 (Tex.
Crim. App. 2000) (citing State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim.
App. 1998)). Toward that end, Chapter 21 of the Texas Code of Criminal
Procedure governs charging instruments and provides legislative guidance
concerning the requirements and adequacy of notice. State v. Moff, 154
S.W.3d 599, 601 (Tex. Crim. App. 2004); Ferguson v. State, 622 S.W.2d
846, 849-50 (Tex. Crim. App. 1981)(opinion on reh’g).
With respect to indictments, Article 21.02 sets out what facts must
be included in an information and states, in part, that “[t]he offense must
be set forth in plain and intelligible words.” T EX . C ODE C RIM. P ROC. A NN.
art. 21.02(7) (West 2010). Article 21.03, provides that “[e]verything
should be stated in an indictment which is necessary to be proved.” T EX.
C ODE C RIM. P ROC. A NN. art. 21.03 (West 2010). Finally, Article 21.04
provides that “[t]he certainty required in an indictment is such that will
enable the accused to plead the judgment that may be given upon it in
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bar of any prosecution for the same offense.” T EX. C ODE C RIM. P ROC. A NN.
art. 21.04 (West 2010). An indictment is sufficient if it
charges the commission of the offense in ordinary and concise
language in such a manner as to enable a person of common
understanding to know what is meant, and with that degree
of certainty that will give the defendant notice of the particular
offense with which he is charged, and enable the court, on
conviction, to pronounce the proper judgment[.]
T EX. C ODE C RIM. P ROC. A NN. art. 21.11 (West 2010).
We have recognized that in most cases a charging instrument that
tracks the statutory text of an offense is sufficient to provide a defendant
with adequate notice. Barbernell, 257 S.W.3d at 251; Lawrence, 240
S.W.3d at 916; Curry, 30 S.W.3d at 398. When a statutory term or
element is defined by a statute, the charging instrument does not need
to allege the definition of the term or element. Barbernell, 257 S.W.3d
at 251; Geter v. State, 779 S.W.2d 403, 405 (Tex. Crim. App. 1989).
Typically the definition of terms and elements are regarded as evidentiary
matters. Marrs v. State, 647 S.W.2d 286, 289 (Tex. Crim. App. 1983);
see also Curry, 30 S.W.3d at 398.
But in some cases, a charging instrument that tracks the statutory
language may be insufficient to provide a defendant with adequate notice.
Barbernell, 257 S.W.3d at 251; Curry, 30 S.W.3d at 398. This is so when
Zuniga - 10
the statutory language fails to be completely descriptive. Barbernell, 257
S.W.3d at 251; Curry, 30 S.W.3d at 398. For example, a statute which
uses an undefined term of indeterminate or variable meaning requires
more specific pleading in order to notify the defendant of the nature of
the charges against him. Mays, 967 S.W.2d at 407. Likewise, when a
statute defines the manner or means of commission in several alternative
ways, an indictment will fail for lack of specificity if it neglects to identify
which of the statutory means it addresses. Id.; see also Barbernell, 257
S.W.3d at 251 (“The statutory language is not completely descriptive
‘when the statutes define a term in such a way as to create several
means of committing an offense, and the definition specifically concerns
an act or omission on the part of the defendant.’”) (quoting Solis v. State,
787 S.W.2d 388, 390 (Tex. Crim. App. 1990)). In such cases, more
particularity is required to provide adequate notice. Barbernell, 257
S.W.3d at 251.
As we recently explained in our unanimous opinion in State v.
Jarreau, our notice jurisprudence requires appellate courts to engage in
a two-step analysis when analyzing whether a charging instrument
provides adequate notice. State v. Jarreau, No. PD-0840-16, slip op. at
4 (Tex. Crim. App. Mar. 1, 2017); see also Barbernell, 257 S.W.3d at
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255. First, the reviewing court must identify the elements of the offense.
Jarreau, slip op. at 4. Next, it must consider whether the statutory
language is sufficiently descriptive of the charged offense. Id.; Mays, 967
S.W.2d at 407.
Here, Zuniga appeared to make both types of challenges to the
sufficiency of the indictment in this case. We will address each challenge
turn.
Is the Specific Identity of the Tampered-With Evidence
an Element of the Offense?
Section 37.09(a)(1) of the Penal Code defines the offense of
tampering with physical evidence with the following elements: (1) a
person alters, destroys, or conceals; (2) any record, document, or thing;
(3) with intent to impair its verity, legibility, or availability as evidence in
the investigation or official proceeding; (4) knowing that an investigation
or official proceeding is pending or in progress. T EX. P EN. C ODE A NN. §
37.09 (a)(1) (West 2010); see also Williams v. State, 270 S.W.3d 140,
142 (Tex. Crim. App. 2008). We have recognized that the statute
contains at least two different culpable mental states: an actor must
know his action would impair the item as evidence and he must act with
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the intent to impair its availability as evidence. Stewart v. State, 240
S.W.3d 872, 873-74 (Tex. Crim. App. 2007). The statute specifies that
the putative evidence must be a record, document or thing, though it
does not require that “thing” be, in and of itself, of a criminal nature.
T EX. P ENAL C ODE A NN. § 37.09(a)(1) (West 2010); Williams, 270 S.W.3d at
144.
The court of appeals appears to acknowledge that the indictment
must at least allege whether the “evidence” altered, concealed, or
destroyed was “a record, document, or a thing.” Zuniga, 2015 WL
4381064 at *2. However, the court of appeals determined that the
specific identity of the evidence at issue was not an element of the
offense. Id. The court reasoned that the identity of the tampered-with
evidence will be relevant at trial to show Zuniga’s intent, but it is not a
separate element of the offense. Id. at *3.
The court of appeals correctly held that the specific identity of the
evidence is, as one might expect, an evidentiary issue. The plain text of
the statute uses the word “thing” to differentiate the tampered-with
evidence from either a “record” or a “document.” T EX. P ENAL C ODE A NN. §
37.09 (a)(1) (West 2010). The only time the statute specifies a particular
type of “thing” is in subsection (c) where the offense becomes a second
Zuniga - 13
degree felony if “the thing altered, destroyed, or concealed is a human
corpse.” T EX. P ENAL C ODE A NN. § 37.09 (c) (West 2010). The term “thing”
remains otherwise undefined.
This stands in contrast to an offense in which the specific identity of
a putative object is a necessary element such as possession of a
controlled substance. In the Controlled Substances Act, the relevant
statutory provisions explicitly identify which substances are illegal to
possess. Paragraph (a) of §§ 481.112 through 481.118 make it clear
that it is an offense to possess, manufacture or deliver a controlled
substance listed in the particular penalty group. T EX. H EALTH & S AFETY
C ODE A NN. §§ 481.112–.118. Except in the context of tampering with a
human corpse, the tampering statute does not otherwise define what
constitutes a “thing” that can be altered, concealed, or destroyed
suggesting that the specific identity of the tampered-with evidence is not
an essential element.
Additionally, as the court of appeals properly noted, intermediate
courts have upheld convictions for tampering with evidence without
requiring the State to definitively prove exactly what evidence was
altered, concealed, or destroyed. See e.g. Barrow v. State, 241 S.W.3d
919, 923-24 (Tex. App.–Eastland 2007, pet. ref’d.) (affirming conviction
Zuniga - 14
for tampering with evidence where the defendant swallowed a “rock-like”
substance believed to be crack cocaine), Vaughn v. State, 33 S.W.3d 901,
903 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (upholding conviction
for tampering with evidence where State did not prove specific identity
of evidence destroyed). The only “element” the State must allege in the
indictment is whether the evidence at issue was “a record, a document,
or a thing.” By alleging that Zuniga tampered with “an unknown
substance,” the State seeks to prosecute Zuniga for tampering with a
“thing,” rather than a “record” or a “document.” Thus, we agree with the
State and the court of appeals that 1) the State alleged every element of
the offense of tampering with evidence when it amended its indictment
and 2) the specific identity of the tampered-with evidence was not an
element of the offense.
Did the Indictment Provide Adequate Notice?
Zuniga primarily argued to the trial court that more particular
pleading is necessary to allow her to properly prepare a defense. The
trial court agreed, quashing the indictment and stating that the
indictment failed to provide sufficient notice. As mentioned above, a
charging instrument drafted in the language of the penal statute is
generally sufficient to provide an accused with adequate notice because
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the terms of the statute inform him or her of the nature of the charge.
Mays, 967 S.W.2d at 406; Moff, 154 S.W.3d at 602 (citing Haecker v.
State, 571 S.W.2d 920, 921 (Tex. Crim. App. 1978)). But the court of
appeals was also required to take the second step and analyze whether
the terms of the statute are sufficiently descriptive of the charged
offense. Barbernell, 257 S.W.3d at 255; see also Mays, 967 S.W.2d at
407 (noting that when a statute uses an undefined term of indeterminate
or variable meaning, the State must include more specific pleadings in the
indictment in order to notify the defendant of the nature of the charges
against him). The State acknowledges that the indictment must provide
the defendant with sufficient notice to prepare a defense “even if identity
of the thing tampered with is not an element of the offense.” State’s Br.
9.
Though purporting to address the notice issue, the court of appeals
simply held that the specific identity of the tampered-with evidence did
not need to be pleaded because it was not an element of the offense.
Zuniga, 2015 WL 4381064 at *3. The court of appeals did not conduct
an analysis of whether the terms of the statute were sufficiently
descriptive of the charged offense. Or, if it did, it did not explain how it
came to that conclusion beyond simply stating that the specific identity
Zuniga - 16
of the tampered with evidence was not an element of the offense.
Because Zuniga prevailed in the trial court, the court of appeals was
required to uphold the trial court’s ruling if it was correct under any
theory of law applicable to the case. Rhinehart, 333 S.W.3d at 161. Yet,
the court of appeals did not address whether the language contained in
the indictment was of such indeterminate and variable meaning that it
failed to provide Appellee with adequate notice of what criminal acts she
was accused of committing. Consequently, we remand the case to afford
the court of appeals the opportunity to consider Zuniga’s challenge that
the indictment failed to provide her with adequate notice to prepare her
defense. McClintock v. State, 444 S.W.3d 15, 16 (Tex. Crim. App. 2014).
Conclusion
The specific identity of the tampered-with evidence is not an
element of the offense. However, the court of appeals did not address
whether the trial court could have properly determined that more
specificity was required in the indictment in order to provide the
defendant with adequate notice of the charged conduct. We remand this
case for the court of appeals to fully address that issue.
Filed: March 8, 2017
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