Court of Criminal Appeals: Throwing Pill Bottle Over Fence in View of Witnesses Was Not “Tampering”

May 4th, 2020 by Tad Nelson in Drug Crime

How many times have you seen a television show or movie where someone tries to “flush the drugs down the toilet” just before the police bust into the room? What you may not realize is that such actions, standing on their own, are also a criminal offense in Texas. It is known as “tampering with or fabricating physical evidence” and in some cases, it can lead to more serious felony charges than the actual drug possession.

Appeals Court Reduces Conviction to State-Jail Felony

The Texas Court of Criminal Appeals recently addressed such a case. In Stahmann v. State, the defendant was attempting to make a left turn across Highway 46 when he was broadsided by another vehicle. Two bystanders stopped to render aid. They both observed the defendant exiting his vehicle after the collision, walking in front of his van, and throwing what looked like a “prescription medicine bottle” over a nearby wire fence.

When police responded to the accident scene, the bystanders told the officers about the pill bottle. Both men said they “never lost sight” of the bottle and pointed out its exact landing spot. The police retrieved the bottle and determined it contained promethazine, which is a controlled substance. Prosecutors subsequently charged the defendant with third-degree felony tampering with physical evidence.

At trial, the judge told the jury it could find the defendant guilty of tampering or the lesser-included offense of “attempted tampering.” The jury chose to convict the defendant of tampering. The jury also sentenced the defendant to 10 years in prison, which the judge suspended in favor of community supervision (probation).

An intermediate court of appeals determined the evidence only supported a conviction for attempted tampering–the lesser offense–and not tampering itself. The Court of Criminal Appeals agreed with that conclusion. It explained that tampering requires proof the defendant tried to “alter” the pill bottle. In fact, all he did was move it. The prosecution argued movement was sufficient. But as the Court of Criminal Appeals pointed out, this would mean someone commits tampering simply by touching a pill bottle in their pocket.

Likewise, the Court rejected the prosecution’s view that the defendant committed tampering by “concealing” the bottle. As noted above, there were two witnesses who “never lost sight” of the pill bottle after the defendant threw it. At no point did law enforcement have a “difficult time locating” the bottle. Had the witnesses not been present, this might have been a different case, the Court observed. But under these facts, the defendant’s actions did not add up to tampering. That said, it was still attempted tampering, which is a state-jail felony under Texas law.

Speak with a Houston Drug Crimes Defense Lawyer Today

Trying to conceal or destroy evidence is never a good strategy. If you are charged with a drug crime, it is better to avoid talking to law enforcement and to contact an experienced Houston criminal defense attorney. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today if you need legal representation. Call 281-280-0100

 

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