Hines, 535 S.W.3d at 110-11. The court believed that that sequence of events was similar to what occurred in Stuart v. State, No. 03-15-00536-CR, 2017 WL 2536863 (Tex. App.-Austin June 7, 2017, no pet.) (mem. op., not designated for publication).
The State cites Hines v. State , 535 S.W.3d 102, 110 (Tex. App.—Eastland 2017, pet. ref'd) ; Stuart v. State , No. 03-15-00536-CR, 2017 WL 2536863, at *4 (Tex. App.—Austin June 7, 2017, no pet.) (mem. op., not designated for publication); Munsch v. State , No. 02-12-00028-CR, 2014 WL 4105281, at *6 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for publication); and Gaitan v. State , 393 S.W.3d 400, 401–02 (Tex. App.—Amarillo 2012, pet ref'd), in support of its argument that appellant concealed the syringe.
The State cites Hines v. State, 535 S.W.3d 102, 110 (Tex. App.—Eastland 2017, pet. ref'd); Stuart v. State, No. 03-15-00536-CR, 2017 WL 2536863, at *4 (Tex. App.—Austin June 7, 2017, no pet.) (mem. op., not designated for publication); Munsch v. State, No. 02-12-00028-CR, 2014 WL 4105281, at *6 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for publication); and Gaitan v. State, 393 S.W.3d 400, 401-02 (Tex. App.—Amarillo 2012, pet ref'd), in support of its argument that appellant concealed the syringe. These cases are inapposite as they involve review of the sufficiency of the evidence on a tampering conviction, not the trial court's denial of an appellant's request for a lesser-included instruction.
"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." Id. at 56 (citing 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); 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) (holding that evidence of concealment was insufficient where defendant tossed a pill bottle out of his pocket and underneath a car while being pursued by a loss prevention officer); but see Hines v. State, 535 S.W.3d 102 (Tex. App.—Eastland 2017, pet. ref'd); Stuart v. State, No. 03-15-00536-CR, 2017 WL 2536863, at *4 (Tex. App.—Austin June 7, 2017, no pet.) (mem. op., not designated for publication); Evanoff v. State, No. 11-09-0037-CR, 2011 WL 1431520, at *5 (Tex. App.—Eastland 2011, pet. ref'd) (mem. op., not designated for publication) (holding that defendant who swept baggies of cocaine off the trunk of his car and dropped them under the car constituted intentional concealment). The Evanoff Court further held that Evanoff's unsuccessful attempt to conceal the cocaine did not negate his intent to impair its use as evidence.