Opinion
No. PD-0758-08.
May 6, 2009.
Appeal from the 42nd District Court, Taylor County, Thomas M. Wheeler, Judge.
Britt Lindsey, Abilene, for Appellant.
Patrick K. Dyer, Asst. District Atty., Abilene, Jeffrey L. Van Horn, State's Atty., Austin, for The State.
OPINION
The appellant was prosecuted for the offense of tampering with physical evidence, under Section 37.09(a)(1) of the Penal Code. The indictment alleged that the appellant altered, destroyed, or concealed cocaine with intent to impair its availability as evidence, by chewing it. In a published opinion, the Eastland Court of Appeals held that the evidence was sufficient to show that the appellant concealed the cocaine in his mouth and that he chewed it. Although we granted the appellant's petition for discretionary review to examine this holding, on closer inspection we have determined that our decision to grant was improvident. We therefore dismiss the appellant's petition.
See TEX. PENAL CODE § 37.09(a)(1) ("A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he . . . alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding[.]")
Collier v. State, ISA S.W.3d 576 (Tex.App.-Eastland 2008).
HERVEY, and COCHRAN, J.J., dissent.