Thurston, George Anthony
Thurston, George Anthony
Concurring Opinion
filed a concurring opinion in which Johnson and Richardson, JJ., joined.
In resolving appellant’s claim of insufficient evidence, the court of appeals held that an investigation qualifies as “pending”
By his own admission at trial, appellant shot and killed the deceased. Appellant claimed that he shot in self-defense, but instead of calling the authorities, he waited a day, wrapped the deceased’s body in a sleeping bag and a blue tarp, and dumped the body near some railroad tracks. Appellant was charged with murder and tampering with evidence, and these offenses were prosecuted in a single trial. A jury acquitted him of murder, convicted him of tampering with evidence, and sentenced him, as a-repeat offender, to eighty years’ confinement.
The indictment for the tampering charge listed two methods of evidence tampering: (1) knowing that an offense (murder) had been committed, appellant altered, destroyed, or concealed a human corpse with intent to impair its verity or availability as evidence in any subsequent investigation or official proceeding related to the offense,
Appellant claimed in the court of appeals that he could not be convicted under the State’s first theory of tampering because the jury’s acquittal of murder meant he could not have known that a murder had been committed. But the jury’s acquittal of murder does not make the evidence in the tampering case insufficient. At most, the acquittal of murder and the conviction on the first theory of tampering would constitute inconsistent verdicts, and due process does not bar inconsistent verdicts.
And even though the jury acquitted appellant of murder, the evidence is sufficient under Jackson v. Virginia
Appellant makes an interesting argument regarding the State’s second theory of tampering. He contends that, even if “pending” means “impending,” the court of appeals extended the definition of “pending” beyond anything currently found in Texas jurisprudence. He claims that an investigation is “impending” only if (1) it is about to take place because the crime has occurred in the presence of someone who would investigate it or cause an investigation to begin, or (2) the defendant’s action is the sole cause of the immediate commencement of the investigation. The term cannot be stretched, he contends, to an investigation that begins days later. But even if appellant were correct in this construction of “pending,” with respect to the State’s second theory of evidence tampering, he could not ultimately prevail on his sufficiency claim because the State had sufficient evidence to support its first theory of tampering. When alternative methods of committing an offense are submitted to the jury and the jury delivers a general verdict, the verdict is considered to be supported by sufficient evidence as long as sufficient evidence supports one of the submitted grounds.
Appellant might have had an arguable jury-charge claim. It is error to submit to the jury a basis for criminal liability that is supported by legally insufficient evidence.
For these reasons, I concur in the Court’s decision to dismiss appellant’s petition as improvidently granted.
. See Thurston v. State, No. 02-13-00242-CR, 2014 WL 3536955, *1, 2014 Tex.App. LEXIS 7800, *2 (Tex.App.-Fort Worth July 17, 2014) (not designated for publication).
. See Tex. Penal Code § 37.09(d)(1).
. See id. § 37.09(a)(1).
. See United States v. Powell, 469 U.S. 57, 68-69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932).
. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
. See Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex.Crim.App. 2014) ("Applicant’s attempts to conceal Jerry’s body and his implausible explanations to police are strong evidence of applicant’s consciousness of guilt.”).
. Griffin v. United States, 502 U.S. 46, 49, 59-60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); Gonzalez v. State, 8 S.W.3d 640, 641 (Tex.Crim.App. 2000).
.Thurston, 2014 WL 3536955, at *1 n. 3, 2014 Tex.App. LEXIS 7800 at *3 n.3.
. Savant v. State, 544 S.W.2d 408, 408-09 (Tex.Crim.App. 1976).
. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g).
. See Schutz v. State, 63 S.W.3d 442, 446 (Tex.Crim.App. 2001) (acquittal on other charge considered in harm analysis).
Opinion of the Court
OPINION
We granted appellant’s petition for discretionary review to determine the definition of “pending” in Penal Code § 37.09(a)(1), the tampering with evidence statute. Having examined the record and briefs, we conclude that our decision to grant review was improvident. We therefore dismiss appellant’s petition for discretionary review as improvidently granted.
Reference
- Full Case Name
- George Anthony THURSTON, Appellant v. the STATE of Texas
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- 4 cases
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- Published