Texas Penal Code 37.09 – Tampering With or Fabricating Physical Evidence

WHAT IS TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE IN TEXAS?

The Texas law against tampering with or fabricating physical evidence prohibits altering, destroying, or concealing anything that may be used as evidence in an ongoing investigation or official proceeding. A person fabricates physical evidence by creating or otherwise falsely holding out anything as evidence to affect the outcome of an investigation or official proceeding.

WHAT IS THE TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE LAW IN TEXAS?

Tex. Penal Code § 37.09. TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE.

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:

(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or

(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

(b) This section shall not apply if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.

(c) An offense under Subsection (a) or Subsection (d)(1) is a felony of the third degree, unless the thing altered, destroyed, or concealed is a human corpse, in which case the offense is a felony of the second degree. An offense under Subsection (d)(2) is a Class A misdemeanor.

(c-1) It is a defense to prosecution under Subsection (a) or (d)(1) that the record, document, or thing was visual material prohibited under Section 43.261 that was destroyed as described by Subsection (f)(3) of that section.

(d) A person commits an offense if the person:

(1) knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense; or

(2) observes a human corpse under circumstances in which a reasonable person would believe that an offense had been committed, knows or reasonably should know that a law enforcement agency is not aware of the existence of or location of the corpse, and fails to report the existence of and location of the corpse to a law enforcement agency.

WHAT IS THE PENALTY CLASS FOR TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE IN TEXAS?

Tampering with or fabricating physical evidence is a third degree felony, punishable by two to ten years in prison. If the evidence tampered with was a human corpse, the charge becomes a second degree felony, punishable by two to 20 years in prison.

WHAT IS THE PUNISHMENT RANGE FOR TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE IN TEXAS?

Tampering with or fabricating physical evidence charged as a third degree felony carries a possible two to ten years in prison, and up to a $10,000 fine. If the evidence tampered with was a human corpse, the offense is a second degree felony, which carries between two and 20 years in prison, and a maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE IN TEXAS?

A person charged with tampering with or fabricating physical evidence is eligible for probation after a conviction, or deferred adjudication without a conviction, for a period of up to ten years.

WHAT ARE THE DEFENSES TO TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE IN TEXAS?

Justification defenses rarely apply in evidence tampering prosecutions. However, the statute points to the specific scenario in which a person destroys visual material depicting a minor, and creates a defense if the visual material was destroyed within a reasonable amount of time after receiving the material from another minor.

• Can a person be charged with tampering even if police find the evidence in its original condition?? Yes, if the person concealed the evidence. The State may charge a person with evidence tampering by concealing, altering, or destroying it. If the prosecution chooses to only allege one method of tampering, the proof must match the allegation. If the State alleges all three ways of committing tampering, proof of at least one will support a conviction.If a defendant is charged with tampering by destruction, but the police found the evidence undamaged, the State has not proved the defendant destroyed the evidence. In Stahmann v. State, a defendant attempted to throw a pill bottle over a fence, but it landed in plain view of law enforcement. The Court of Criminal Appeals overturned the tampering conviction; the pill bottle was not destroyed or altered, and was never actually concealed from police. At most, the defendant could have been charged with attempted tampering. 602 S.W.3d 573 (Tex. Crim. App. 2020).

• What if the allegedly concealed, altered, or destroyed evidence was a legal item? Regardless of the specific identity of the thing concealed, altered, or destroyed, if the police cannot find or otherwise determine the character of the potential evidence during an investigation or official proceeding, the person may be convicted of tampering. The State only needs to prove a defendant tampered with a “record, document, or thing with intent to impair its verity, legibility, or availability as evidence” in an ongoing investigation or official proceeding. State v. Zuniga, 512 S.W.3d 902 (Tex. Crim. App. 2017).

WHAT IS THE STATUTE OF LIMITATIONS FOR TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE IN TEXAS?

The limitation period for tampering with or fabricating physical evidence, whether it is charged as a second degree or third degree felony, is three years.

TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE IN TEXAS

Tampering with or fabricating evidence criminalizes acts that physically manipulate potential evidence in an ongoing investigation or official proceeding. This law is designed to protect and maintain the honesty, integrity, and reliability of the justice system, and to prohibit people from creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding.

TEXAS TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE COURT CASES

The case law regarding tampering with or fabricating physical evidence in Texas demonstrates that the focus is the concealment, alteration, or destruction of evidence to be used in any subsequent investigation of, or official proceeding related to, an offense. The State does not need to prove the specific identity of the tampered-with evidence; only that it was a “record, document, or thing.”

Suspects commonly attempt to flush drugs down the toilet during police raids. The Court of Criminal Appeals recently upheld a tampering conviction after a defendant flushed marijuana down the toilet. Police found the defendant standing in the bathroom, and saw loose marijuana mixed with human waste in the toilet. The defendant “altered” the marijuana, because he changed the nature and quality thereof by mixing it with human waste. It is also unnecessary to permanently alter potential evidence—temporarily diminishing its evidentiary value is enough. David v. State, No. PD-0307-21 (Tex. Crim. App. May 11, 2022).