Opinion
No. 05-04-00737-CR
Opinion issued May 6, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th, Judicial District Court Dallas County, Texas, Trial Court Cause No. F03-41305-RN. Reversed and Rendered.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Russell Coy Wood of tampering with physical evidence. Appellant now complains the evidence against him is legally and factually insufficient to support his conviction and the trial court erred by amending his indictment the day trial began. Concluding the evidence against appellant is legally insufficient, we reverse appellant's conviction and render a judgment of acquittal. A police officer noticed appellant in the driver's seat of a truck parked in a fire lane near a bank. A woman was in the truck's passenger seat. When the officer asked appellant for identification, he gave the officer an ID for someone else. While the officer checked out the identification of appellant and his passenger, he noticed appellant grab a white bag from the truck's back seat. Both appellant and the woman in the truck started "rooting" through the bag. The officer called for a cover officer because he had determined appellant was lying about his identity. When the cover officer arrived, the two officers questioned appellant and the passenger. Appellant consented to a search of the truck. Inside, the officer found the white bag, which contained appellant's resume and identification materials, checks, checkbooks, wallets, and bank cards for nineteen different people, male and female. The officer arrested appellant. Following his arrest, appellant was briefly confined in the "holdover" cell of the Mesquite, Texas jail. When a detention officer came to move appellant from the holdover cell, he found torn-up pawn tickets on the bench of the cell as well as on the floor. The tickets were torn into small pieces. The officer was certain it was appellant who had torn up the pawn tickets because the detention officers always check the holdover cell after they take an arrested person out of it to be certain the arrested person did not leave or hide anything in the cell. No one ever reassembled the torn pieces to determine whose name was on the pawn tickets. The detention officer acknowledged that the tickets could have been "just some sort of trash." The officer further acknowledged the tickets could have belonged to appellant. In his first issue, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. He specifically complains that no evidence was presented at trial to show the pawn tickets were relevant to an investigation of identity theft, as alleged in the indictment as the basis for the tampering with physical evidence charge. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Here, despite the fact that no direct evidence at trial showed appellant himself destroyed the pawn tickets while he was in custody for identity theft, a rational trier of fact could have found he destroyed the pawn tickets while he was in the holdover cell. But this determination does not establish appellant's guilt for the offense of tampering with physical evidence. See Tex. Pen. Code Ann. § 37.09(d)(1) (Vernon 2003) (providing that a person commits the offense of tampering with physical evidence if, knowing that an offense has been committed, he alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation or official proceeding relating to the offense). The torn tickets, which were introduced into evidence by the State, were never reassembled or linked to any pawn shop or person. The jury in appellant's case at the guilt-innocence phase of trial had no idea whose name, if any, was written on the pawn tickets, and it had no reason to presume appellant's name was on them. In response to appellant's sufficiency complaints, the State contends that this Court should presume appellant was in lawful possession of pawn tickets showing his name. The State goes on to argue that appellant "could be assumed to have known that his pawn tickets contained information verifying his true identity and that this information would be helpful as evidence in the investigation of his offenses." In other words, the State contends that appellant's destruction of the pawn tickets amounted to destroying evidence of his true identity that could have been used in the investigation of the identity thefts he had committed. We disagree with the State's assertion that the jury in appellant's case could have rationally found that appellant's name was on the torn-up pawn tickets. Appellant could have lawfully possessed pawn tickets reflecting someone else's name, and there was no evidence before the jury to support an inference that the tickets showed his name instead. It was the State's burden to show not only that appellant destroyed pawn tickets but that he did so with the intent of impairing the tickets' use as evidence against him in an investigation for identity theft. See id. Without proof that appellant's name was on the tickets, the State failed to prove the tickets were evidence — destroyed by appellant — that would have been helpful in establishing his true identity during the investigation of his identity theft offenses. Nor did the State prove, in the alternative, that the tickets reflected someone else's name and could be linked to an actual identity theft offense. The photocopy of the torn pieces contained in the appellate record shows the name "Bobby Joe" on one of the pieces, but we cannot determine what party this name references. Appellant's destruction of a pawn ticket showing a name other than his own, without more, would not prove he destroyed the ticket in an effort to impair its "verity, legibility, or availability" as evidence in an identity theft investigation. Id; see also Tex. Pen. Code Ann. § 32.51(b) (Vernon 2003) (providing that a person commits the offense of fraudulent use or possession of identifying information if he obtains, transfers, or uses identifying information of another person without the other person's consent and with intent to harm or defraud another). Appellant could have lawfully possessed a pawn ticket reflecting another person's name and even lawfully destroyed it. Without additional evidence, the State failed to show appellant's act of destroying a pawn ticket, which may have contained someone else's name, amounted to appellant's committing the offense of tampering with physical evidence. Notably, the name "Bobby Joe" is not on any of the documents introduced into evidence to show appellant's commission of identity theft. Assuming a rational finder of fact could believe every pawn ticket has a name on it, the evidence in this case showed, at most, that appellant tore up pawn tickets containing either his name or the name or names of people other than him. Because the State failed to show appellant's name was on the torn-up tickets, it failed to prove appellant destroyed the pawn tickets in an effort to hamper the investigation of his identity theft cases by hiding his true identity. Moreover, if someone else's name or names were on the tickets, the fact of appellant's destroying them would not have proved he was guilty of the charged offense. The State failed to elicit any evidence showing appellant's destruction of the tickets amounted to an effort to hamper the investigation of an identity theft offense. See Tex. Pen. Code Ann. § 37.09(d)(1). Viewing the evidence in the light most favorable to the prosecution, we conclude no rational trier of fact could have found all the elements of the offense of tampering with physical evidence beyond a reasonable doubt. We resolve appellant's first issue in his favor. Due to our disposition of appellant's legal sufficiency complaint, we need not address the factual sufficiency complaint also raised in his first issue or the indictment complaint raised in his second issue. We reverse the trial court's judgment and enter a judgment of acquittal.
At trial, appellant was also convicted of four separate offenses of fraudulent possession of identifying information. He does not appeal those convictions.
At the punishment hearing before the court, appellant testified, "I tore up three of my own pawn tickets."