Opinion
No. 06-16-00199-CR
06-07-2017
On Appeal from the 124th District Court Gregg County, Texas
Trial Court No. 45,425-B Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
The jury charge in the Gregg County trial of Kindred O'Brian Fortson for tampering with evidence is challenged on appeal for various irregularities, which went unchallenged at trial but which Fortson, on appeal, claims caused him egregious harm. Finding no egregious harm, we affirm the trial court's judgment.
Fortson's Gregg County jury convicted him of tampering with evidence by concealing marihuana, and the trial court assessed his punishment at five years' confinement. On appeal, Fortson points out a number of issues he takes with the jury charge.
Fortson complains, first, that the charge switches between two different statutory subsections in setting out the manner and means in which the tampering was alleged to have occurred. Both alternatives involved Fortson's concealment of the marihuana, but, while one alleged Fortson's knowledge that an investigation was pending, the other alleged his knowledge that an offense had been committed. Compare TEX. PENAL CODE ANN. § 37.09(a)(1) (West 2017) (knowing that investigation or proceeding pending) with TEX. PENAL CODE ANN. § 37.09(d)(1) (West 2017) (knowing that offense committed).
Second, Fortson complains that the charge twice uses "intentionally or knowingly conceal" a substance, thus, he posits, allowing conviction on only a knowing state of mind, not on the statutorily required intentional mens rea. Third, Fortson argues that the charge's unnecessary definition of a knowing state of mind misleads the jury. Fourth, he notes that the charge eliminates the statutorily required phrase relating the investigation of the offense involved with the thing/evidence in question. Fifth and finally, he complains that the charge alleges Fortson's concealment of a "substance," whereas the statute speaks in terms of the concealment of a "record, document, or thing."
Because he raised none of the above objections with the trial court, Fortson is entitled to a reversal only if these were error and caused him egregious harm. See Jenkins v. State, 493 S.W.3d 583, 614 (Tex. Crim. App. 2016); Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). We assume without finding that these were error. Our task here is to determine whether Fortson was egregiously harmed by the irregularities in the jury charge. We conclude that he was not.
Egregious harm cannot be merely theoretical, but must be actual, harm. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015); Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Egregious harm has been caused if error in the jury charge affected "the very basis of the case," "deprive[d] the defendant of a valuable right," or "vitally affect[ed] a defensive theory." Arrington, 451 S.W.3d at 840; Cosio, 353 S.W.3d at 777; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). The Almanza analysis is fact specific, done on a "case-by-case basis." Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013). In reviewing for egregious harm, we should examine (A) the complete jury charge; (B) the evidence, considering what issues were contested and where the weight of the probative evidence lay; (C) what the parties argued; and (D) anything else in the record that is relevant to the question. Arrington, 451 S.W.3d at 840.
(A) The Jury Charge
To assess the effect of the jury charge, we quote much of the relevant portions of the printed charge. Where the trial court's reading of the charge differed in any relevant respect, we footnote those variances. The relevant portions of the charge are as follows:
Accusation
The state accuses the defendant of having committed the offense of Tampering with Physical Evidence. Specifically, the accusations are that the defendant, on or about the 24th day of November, 2015, in Gregg County, Texas, the defendant did then and there, knowing that an offense had been committed, to-wit: Possession of Marihuana, intentionally or knowingly conceal a substance, to-wit: marihuana, with intent to impair its availability as evidence in any subsequent investigation or official proceeding related to the offense.
Relevant Statutes
A person commits the offense of "Tampering with Physical Evidence" if, knowing that an investigation or official proceeding is pending or in progress, he conceals a substance or thing with the intent to impair its availability as evidence in the investigation or official proceeding.
To prove that the defendant is guilty of Tampering with Physical Evidence, the state must prove, beyond a reasonable doubt, the following 3 elements.
The elements are that the defendant:
1. Knows an offense has been committed;
2. Intentionally or knowingly conceal a substance, and
3. With intent to impair its availability as evidence in any subsequent investigation or official proceeding.
. . . .
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, that on or about the 24th day of November, 2015, in Gregg County, Texas:
A. The defendant:
1. Knew an offense had been committed;
2. Intentionally or knowingly concealed a substance; and
3. With intent to impair its availability as evidence in any subsequent investigation or official proceeding.
To find the Defendant "guilty" you must all agree that the State has proven elements 1, 2, and 3 beyond a reasonable doubt.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3, listed above, you must find the defendant "not guilty."
If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must find the defendant "guilty."
When the trial court read the charge to the jury, at this point in the text, it actually said, "to wit, possession of marijuana, intentionally - should be intentionally or knowingly conceal a substance, to wit, marijuana . . . ." (Emphasis added).
This language invokes Section 37.09(a)(1) of the statute. See TEX. PENAL CODE ANN. § 37.09(a)(1). When the trial court read the charge to the jury, it actually said, at this point, "knowing that an offense has been committed -- excuse me -- if, knowing that an investigation or an official proceeding is pending or in progress . . . ."
This language invokes Section 37.09(d)(1) of the statute. See TEX. PENAL CODE ANN. § 37.09(d)(1).
This language invokes Section 37.09(d)(1) of the statute. See TEX. PENAL CODE ANN. § 37.09(d)(1).
1. Knowledge of Investigation or Offense? At the heart of Fortson's complaints is the charge's use of two different subsections, apparently interchangeably. While the whole charge should have followed the subsection charged in the indictment—knowing that an offense had been committed—the language in the abstract portion of the charge—that one commits the offense of tampering if he or she conceals evidence knowing an investigation is pending—tracks the wrong subsection of the statute. While that error exists, all other parts of the charge that define the offense reference or track the correct subsection—alleging that Fortson knew that an offense had been committed. The application portion of the charge, in particular, directs the jury to the proper statutory language. See, e.g., Anaya v. State, 381 S.W.3d 660, 665 (Tex. App.—Amarillo 2012, pet. ref'd) (where abstract portion of charge erroneously defines culpable mental states, but application paragraph correctly instructs jury, error in abstract portion usually does not result in egregious harm). It also seems from the entire record that the parties and the trial court simply equated the two alternative manners and means of committing the offense of tampering, set out in the two different subsections of the statute. The attorneys and the trial court simply overlooked the distinctions in the statutory subsections, apparently assuming that the two were necessarily connected in this case, in that an offense had been committed, that it was being investigated, and that Fortson acted with knowledge that both were true.
2. Mens Rea? We disagree with Fortson's contention that the charge's use of "intentionally or knowingly" thereby allowed conviction on just a knowing mens rea, not the statutorily required intentional mens rea. While that particular phrase does not track the statutory language, the very next element in each case requires a finding of a specific intent to impair the evidence's availability in an investigation. This charge does not allow conviction on a simple knowing mens rea.
[T]he inclusion of the adverbial phrase "with the intent to impair its . . . availability as evidence in any subsequent investigation" necessarily has the effect of requiring that the actor have a concomitant intent to alter, destroy, or conceal the evidence. An actor could not harbor intent to impair the availability of the evidence, carry out that intent by means of concealment, and yet not have had a "conscious objective" to conceal the evidence.Thornton v. State, 425 S.W.3d 289, 300 n.59 (Tex. Crim. App. 2014).
3. Misleading Definition? While a knowing mens rea is unnecessarily defined, it is surplusage. And, because of the concomitant required finding of an intent to impair an investigation, we fail to see how it caused any harm, much less egregious harm.
4. No "Related to" Language? The charge omits the required phrase relating the investigation of the offense involved with the evidence in question. While it is theoretically possible that the jury could connect the concealment of the marihuana to an unrelated investigation, there is no indication in this record that there was any other investigation being conducted or considered. Without any unrelated investigation, there can be no egregious harm from this irregularity.
5. Substance Versus Thing? The charge uses "substance," while the statute uses "record, document, or thing." We do not see a significant difference between "substance" and "thing" in this connection. The thrust of Section 37.09 is in its title, "Tampering With or Fabricating Physical Evidence."
(B) The Evidence
The evidence largely is focused on the question of whether Fortson possessed the marihuana in the first place, not which subdivision of the statute he violated or any of the other irregularities.
Stephen Goodson, a detective with the Kilgore Police Department, testified concerning his interview with Fortson. That interview was recorded and was admitted into evidence as State's Exhibit 1. The relevant portion of his questioning related to the dispute at trial concerning whether Fortson could have had the marihuana on his person and stashed it on the floor. Some of the questions and answers went to Fortson's admission of a prior theft and an initial denial of possessing the marihuana, but then a subsequent, half-hearted, admission that he had possessed the marihuana. It was suggested by defense counsel that Fortson may have agreed to admit to the marihuana possession so he could move forward in his interactions with police and possibly get accepted as a confidential informant. The officer testified that he had seen other, motivated suspects hide contraband from an initial pat-down search.
Sergeant Terry Linder, a patrol sergeant for the Kilgore Police Department, testified that he sought Fortson and arrested him under a warrant issued in connection with an investigation of a theft that had occurred recently at a local convenience store. Linder was taken through a series of questions to establish that people handcuffed in the rear seat of a police vehicle of this type have limited options available as to where to stash contraband and that the car in question had been previously inspected to determine that there was no contraband in it before Fortson was placed in the back of the vehicle. In other words, the thrust of his questioning and his answers was to establish that Fortson did have the marihuana and stashed it in the floor of the police car. Linder was the sponsor of the in-car video capturing some of what happened in the back of the car involving Fortson. Much of Linder's testimony set out and explained Fortson's physical situation while in custody in the back of the police car. Linder was questioned regarding a portion of the video at which Fortson appeared to be manipulating something in the floor of the car. (Shortly thereafter, Linder recovered two small bags containing marihuana from the floor of the car, essentially the only option available to Fortson if he wanted to stash the marihuana off of his person. The marihuana was admitted as State's Exhibit 3. Linder also sponsored State's Exhibits 4-9, photographs depicting the backseat area of the patrol car.
On cross-examination, Fortson scrutinized the reasons for and the events surrounding the stop, none of which bore on any of the irregularities in the jury charge. Then counsel examined Linder seeking to raise doubts that Fortson ever possessed the marihuana. Next, counsel moved his focus to questioning and raising doubt regarding the police report's claim that Linder had seen Fortson move something from the "left or rear of his pants" and onto the floor, shoving the bags with his feet. Following that, counsel examined Linder's claim that the backseat area of the car was clear or free of contraband before Fortson was placed in that area. Using the word "substance," counsel questioned Linder on whether and how he formed the conclusion that the substance was marihuana. Only when Linder arrived at the jail with Fortson did Linder conclude that Fortson had possessed marihuana and should be charged with tampering. In summary, it was Linder's testimony that Fortson possessed the marihuana, that Fortson knew there was an investigation or official proceeding, and that he concealed the marihuana.
The redirect examination sought to clear up the questions raised by Fortson's counsel, with no focus on the irregularities in the charge.
Fortson took the stand and denied that he possessed the marihuana on the occasion in question. Fortson went into detail concerning the way Linder searched his person for weapons or contraband. Fortson was placed in tight handcuffs and put in the backseat of the police car. The space and the handcuffs were both tight; conditions were such that Fortson had very little range of movement. Fortson's narrative was consistent that he did not possess any marihuana and that it was unbelievable that he could have moved it from his person to the floor of the car, given his situation. He claims to have never admitted that the marihuana was his, but uttered what he did to get one officer off his back to allow him to talk to another officer.
On cross-examination, the State worked to undermine Fortson's credibility in various ways. None of the cross-examination touched on the differences in the charge that are challenged on appeal.
(C) The Arguments
The arguments were largely focused on Fortson's possession of the marihuana, not particularly on the manner and means by which the offense was committed or on any charge irregularities.
The State's opening statement focused on how the marihuana was secreted and found, not on the variations complained of in the charge. It also claimed that Fortson grudgingly admitted to possessing the marihuana and putting it on the floor.
Fortson's opening statement took the tack that it was difficult or impossible for Fortson to have moved the marihuana off or out of his person and attempted to hide it in the floor area in the back of the police car. The focus was to raise doubts that Fortson hid the marihuana while in the back of the car.
When the State rested, Fortson's motion for instructed verdict asserted that there was no evidence that Fortson "knew that there was an offense that had been committed and that it was his intent to prevent any evidence—specifically, marijuana—from being available for any time of investigation." The State argued that circumstantial evidence supported the finding that Fortson knew an offense had been committed. The court overruled the motion.
(D Other Relevant Matters
The indictment charged the "offense" alternative. Fortson was charged with tampering with evidence, with an indictment alleging that, Fortson, "knowing that an offense had been committed, to-wit: Possession of Marihuana, intentionally and knowingly conceal[ed] a substance, to-wit: marihuana, with intent to impair its availability as evidence in any subsequent investigation or official proceeding related to the offense . . . ." See TEX. PENAL CODE ANN. § 37.09(d)(1).
After our review of the required matters, as set out above, we are left with the firm conclusion that the irregularities in the charge did not affect "the very basis of the case," did not "deprive[] the defendant of a valuable right," and did not "vitally affect a defensive theory." See Arrington, 451 S.W.3d at 840. It is clear to us that the main battle lines in this case were drawn at the possession and manipulation of the marihuana, not at the charge irregularities challenged by Fortson.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice Date Submitted: May 3, 2017
Date Decided: June 7, 2017 Do Not Publish