Opinion Released January 4, 2018

Karl Dean Stahmann v. State, No. 13-16-00400-CR (Opinion by Justice Contreras; Panel Members: Justices Rodriguez and Benavides)

In this appeal from a conviction for tampering with evidence, the court of appeals examined the elements of the crime and discussed the evidence necessary to prove tampering.

This case stems from a conviction for tampering with physical evidence at the scene of a car accident.

Norberto Gonzalez and Karl Dean Stahmann collided while driving in opposite directions on a highway outside New Braunfels. Stahmann was turning left into a nearby subdivision, and Gonzalez claimed Stahmann did not have his turn signal activated.

Ronnie Ballard was a bystander when the crash occurred, and he called 911. Ballard testified that he saw Stahmann exit the van, complaining that he could not see out of one eye. Ballard saw Stahmann walk toward a gated fence near the accident and throw something that looked like a prescription medicine bottle into the shrubbery. Ballard approached the area to get a better look, and Stahmann became angry and asked what Ballard was doing. Stahmann then told Ballard that he wanted someone to call his father, and that his father lived in the subdivision into which he had been turning. Ballard saw beer cans inside the van but noted that Stahmann did not appear disoriented apart from the effects of the accident.

However, bystander Michael Freeman testified that Stahmann was confused and disoriented and bleeding from the head. Freeman, too, saw Stahmann throw what looked like a medicine bottle over the fence near the accident, and corroborated Ballard’s testimony that Stahmann became nervous when he and Ballard approached the area. Freeman attempted to contact Stahmann’s father, but there was no response.

Retired paramedic Terry Aikman saw the accident scene and stopped to help. He testified Stahmann had a wound over his left eye and was bleeding, but did not appear intoxicated and was able to answer basic questions demonstrating that he was alert and aware of his surroundings.

Ballard and Freeman told the police about the pill bottle they saw Stahmann throw over the fence, and an officer retrieved the bottle. The bottle reflected a prescription for James Castaneda for “promethazine tab 25 mg.” Promethazine is a cough suppressant that is classified as a dangerous drug and requires a prescription.

The case was tried to a jury, and the jury was charged on both tampering with the evidence and attempted tampering. The jury convicted Stahmann of tampering with physical evidence. Stahmann appealed, raising seventeen issues including the sufficiency of the evidence, the denial of his motion to quash, the failure to give certain requested jury instructions, collateral estoppel, and improper jury arguments.

Held: There was insufficient evidence that Stahmann altered or concealed the pill bottle. The judgment was reversed and modified to reflect a conviction for the lesser-included offense of attempted tampering with the evidence.

Sufficiency of the Evidence

Stahmann first challenged the sufficiency of the evidence to support his conviction. The court of appeals analyzed the issue based on a hypothetically correct jury charge. The crime’s elements are: (1) knowing that an offense was committed or that an investigation or official proceeding was pending or in progress; (2) the defendant altered, destroyed, or concealed a bottle of pills; (3) with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense.

Alteration, Destruction, or Concealment

First, the court held that there was insufficient evidence to support the jury’s finding that Stahmann had destroyed or altered the pills. The State did not contend that Stahmann destroyed the pills but argued that he altered the bottle by throwing it over the fence when it had been raining, smudging the label. The State relied on Blanton v. State, No. 05-05-01060-CR, 2006 WL 2036615 (Tex. App.—Dallas July 21, 2006, pet. ref’d) (not designated for publication), where the Dallas Court of Appeals held that the defendant altered two plastic bags of drugs by throwing them out the window, resulting in rips in the Ziploc bags.  The Thirteenth Court distinguished Blanton because the rips in the Ziploc bags affected the functionality of the bags, allowing the jury to assume that the bag was not ripped before it was thrown out the window. Stahmann’s pill bottle however, was functional regardless of the smudged label, and there was no evidence of what the bottle looked like before Stahmann threw it over the fence. Thus, the evidence was legally insufficient to support the State’s “alteration” theory.

Next, the court examined the evidence supporting a finding that Stahmann concealed the bottle of pills. The Thirteenth Court referenced 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) ,and 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). In both cases, the defendant dropped or tossed drug-related items, but the courts held that there was insufficient evidence of concealment because the items were not hidden from view. The Thirteenth Court of Appeals applied the same rule to Stahmann’s case, holding that there was insufficient evidence of concealment because the pill bottle was not hidden from view but could be seen by both bystanders and law enforcement officers.

The court further rejected the State’s attempts to rely on Munsch v. State, No. 02-12-00028-CR, 2014 WL 4105281, at *8 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for publication), and Lujan v. State, No. 07-09-0036-CR, 2009 WL 2878092, at *2 (Tex. App.—Amarillo Sept. 9, 2009, no pet.) (mem. op., not designated for publication). In Munsch, the Fort Worth Court held that the defendant concealed a bag of meth when he threw it out of the passenger-side window of a car, which the police would not have recovered if the driver of the vehicle had not told the police what happened. In Stahmann’s case, however, there was evidence that the police would have noticed and found the pill bottle even without the witness’s tip. In Lujan, the Amarillo Court of Appeals held that the defendant concealed a crack pipe when he made a throwing motion, and police then found the pipe on the ground. The Thirteenth Court flatly disagreed with the Amarillo Court’s conclusion, stating that the court in Lujan conflated the actus reus and the mens rea of the offense. The court clarified that concealment and intent are distinct elements, and concealment must be actual rather than simply attempted. Finally, the Court acknowledged that Stahmann’s alleged  tampering with evidence had been held to be a violation of his unrelated community supervision, and the finding had been affirmed by the Austin Court of Appeals.  Nonetheless, the court stated that, on the record before it, there was insufficient evidence of concealment.

Knowledge and Intent

Stahmann next challenged the sufficiency of the evidence to support his knowledge and intent. The Thirteenth Court noted that the State was required to show that Stahmann knew “that an investigation or official proceeding was pending or in progress” or “that an offense has been committed.” Stahmann challenged the evidence showing that he knew “an investigation or official proceeding was pending or in progress,” but not the evidence he knew “an offense has been committed.”

The Thirteenth Court noted that “pending” in the statute means “impending or about to take place.” There was thus sufficient evidence that, after a car accident causing injury, Stahmann knew that a police investigation was about to take place when he threw the pill bottle.

The State was also required to prove that Stahmann acted with the intent to “impair [the] verity or availability [of the pill bottle] as evidence in the investigation or official proceeding,” and, if applicable, that the investigation or proceeding was related to the offense. The Thirteenth Court held that there was sufficient evidence to infer intent from the circumstantial evidence because Stahmann had open beer cans in his car, wanted to leave the scene, and became angry and nervous after throwing the pill bottle.

Reformation

Finally, the court of appeals addressed whether it could reform the judgment to the lesser-included offense of attempted tampering with the evidence, which was submitted to the jury but not reached as a result of the conviction on the greater offense. Reformation is appropriate where (1) in the course of convicting the defendant of the greater offense, the jury necessarily found every element required to convict the appellant for the lesser-included offense; and (2) there is sufficient evidence to support a conviction for the lesser- included offense.

Stahmann argued that the jury did not necessarily find every element of a lesser-included offense because the State submitted two different manners of committing tampering to the jury: tampering with knowledge of a pending investigation or proceeding, and tampering with knowledge that an offense has been committed. The court of appeals rejected this contention, holding that because the jury found all elements of one manner of committing tampering, it necessarily found all elements of one manner of attempted tampering. Thus, the court reformed the judgment to convict Stahmann of attempted tampering, a state jail felony.

Motion to Quash

Stahmann next challenged the trial court’s denial of his motion to quash Count 4 of his indictment, which alleged: “knowing that an offense had been committed, [Stahmann] did then and there alter, destroy or conceal a thing, to-wit: a bottle of pills, with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of official proceeding related to said offense.” Count 4 tracked the statutory language, but it did not identify the specific “offense” at issue. Stahamnn analogized the tampering charge to the offense of burglary, which requires the State to give notice in the indictment of the specific felony committed or attempted. The Thirteenth Court disagreed, holding that the tampering statute differs from the burglary statute in that the relevant “offense” does not necessarily concern an act by the defendant. Consequently, the indictment need not specify the “offense” of which the defendant was aware when he tampered with evidence.

Regardless, the court recognized that any error did not prejudice Stahmann’s substantial rights because the indictment included other offenses stemming from the same accident, contextualizing the charge for tampering with the evidence.

Jury Charge

Stahmann also challenged the trial court’s failure to include his requested jury instructions regarding (1) specifying the alleged “offense” of which he had knowledge; and (2) requiring unanimity regarding the “offense” to convict. The Thirteenth Court of Appeals noted that the jury must be unanimous as to the specific crime committed, but need not agree regarding the manner of means of the offense. The Texas Court of Criminal Appeals has recognized 3 situations where jury unanimity is required: (1) “when the State presents evidence demonstrating the repetition of the same criminal conduct, but the actual results of the conduct differed”; (2) “when the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions”; and (3) “when the State charges one offense and presents evidence of an offense, committed at a different time, that violated a different provision of the same criminal statute.” None of these situations applied to Stahmann’s case. Rather, the specific “offense” of which Stahmann had knowledge was a preliminary fact issue. Thus, jury unanimity was not required.

Collateral Estoppel

Stahmann also argued that the trial court was required, under the doctrine of collateral estoppel, to issue limiting instructions regarding his alleged sobriety because he had been found not to be intoxicated in a separate proceeding.

Stahmann pleaded guilty to credit card abuse in 2011, and was placed on 5 years’ deferred adjudication. The State moved to adjudicate in 2014, alleging numerous violations of Stahmann’s community supervision including intoxication assault against Gonzalez on July 1, 2012. The trial court found the allegation not true, commenting that there was “no evidence” of intoxication despite the open beer cans in Stahmann’s vehicle.

The Thirteenth Court of Appeals examined (1) the facts issues necessarily decided in the first proceeding; and (2) whether those issues were necessarily decided in the second proceeding as well. The court further noted that the Texas Court of Criminal Appeals has held the State is collaterally estopped from relitigating fact issues held to be “not true” in a motion to revoke probation.

The Thirteenth Court held that the doctrine of collateral estoppel did not apply to Stahmann’s case. The trial court in Stahmann’s revocation and adjudication proceeding found that Stahmann had not committed intoxication assault against Gonzalez on July 1, 2012, but it did not specify which element it found to be lacking. The “not true” finding itself did not necessarily indicate that the court found Stahmann was not intoxicated. Moreover, intoxication was only relevant to Stahmann’s knowledge that an offense was committed; it was not an element of tampering with the evidence.The knowledge element was not necessarily contingent on Stahmann’s intoxication, and the jury could have satisfied the element relying on other evidence. In fact, knowledge of an “offense” was not necessary at all for the jury to find Stahmann guilty under the alternate means alleged: that Stahmann knew of a pending investigation of official proceeding. The issue was overruled.

Improper Argument

Finally, Stahmann argued that the trial court erred by overruling his objections to the prosecutor’s statements during closing argument. The Thirteenth Court of Appeals rejected each of Stahmann’s challenges in turn.

First, the court of appeals held that Appellant did not preserve his objection to the prosecutor’s statements during closing argument analogizing to famous court cases and indicating to the jury that Stahmann’s offense was more than a simple case of tampering. In both instances, the prosecutor was referring back to prior statements made during voir dire, to which Appellant did not object.

The court of appeals also rejected Stahmann’s claim that the State improperly struck over the shoulders of counsel by insinuating that the defense counsel had been deceptive in his advocacy. In reality, the prosecutor’s statements attacked Stahmann’s theory and arguments, rather than defense counsel and were therefore proper.

Next, Stahmann also challenged the State’s statement during closing argument that certain aspects of Stahmann’s theory of the case were going down a rabbit trail. The court sustained the objection and instructed the jury to disregard, but Stahmann insisted a mistrial was required. The Thirteenth Court of Appeal disagreed, holding that, even if the “rabbit trail” reference had been improper, it was not so prejudicial as to render the remainder of the proceeding futile.

Having addressed all of Stahmann’s issues, the court of appeals reversed the judgment, remanded the case with instructions to enter judgment for attempted tampering with the evidence, and directed the trial court to conduct a punishment hearing and other proceedings consistent with the court’s opinion.

Read the Full Opinion Here