Tampering with Evidence

If you followed the news last year, you may have seen that former USA Gymnastics president Steve Penny was indicted in September 2018 for tampering with evidence in Texas, stemming from allegations he ordered the removal of documents from a training center during an investigation. And a month after that, a Tarrant County man was found guilty of capital murder and tampering with evidence for killing a man and burying his body. While the cases are vastly different, they illustrate how the tampering statute can be applied. Tampering with evidence is actually a fairly common charge that can include the following examples:

Throwing away or trying to dispose of drugs when police make contact;
Eating or swallowing contraband when police approach;
Moving a body after a murder;
Disposing of a weapon after a crime;
Trying to destroy a computer, delete files, or destroy storage media when you are under investigation.

What is Tampering with Evidence?

Tampering with evidence can involve destroying evidence or filing false documents. Destroying evidence is the most common form of tampering with evidence is codified under Texas Penal Code Section 37.09. This makes it illegal to alter, destroy, or conceal an item with the intent to make it unavailable as evidence when the person knows there is an investigation in progress. It is also illegal under the same section to make, present, or use a document knowing it is false with the intent to affect the outcome of an investigation. Individuals who file false affidavits of non-prosecution can see exposure under this section.

What is the Punishment for Tampering with Evidence?

It is a third-degree felony, punishable to 2 to 10 years in prison, to alter, destroy, or conceal anything (other than a human corpse) with the intent to make it unavailable as evidence.

third degree felony

It is a second-degree felony, punishably by two to 20 years in prison, to alter, destroy, or conceal a human corpse with the intent to make it unavailable as evidence.

It is a Class A misdemeanor, punishable up to a year in jail, to come across and fail to report a human corpse that the person reasonably should know law enforcement is unaware of.

What Intent Must be Present for Tampering with Evidence?

To be convicted of tampering with evidence in Texas, the accused must know that an offense has been committed. The accused must have the specific intent to destroy, conceal, or alter the evidence. The accused must have the specific intent to impair the availability of the evidence. The accused must have acted in a manner that amounted to more than mere preparation. The Court of Criminal Appeals has ruled specifically that identifying the evidence tampered with is not an essential element of a tampering with evidence charge. That means the prosecutor can allege that by including tampering with an “unknown substance,” the State has sufficiently alleged the tampering was for a “thing.”

Example of Tampering with Evidence – Turning a Misdemeanor into a Felony:

Imagine this: Police pull over a vehicle because the driver failed to signal 100 feet before a lane change – a common traffic violation. As the vehicle slows to a stop, officers see the flash of a small plastic bag being thrown out the passenger side window. As the primary officer approaches the driver, another officer arrives after being alerted over the radio, walks down the side of the road and recovers a small plastic bag containing just over a gram of marijuana. If the weed had not been thrown out the window, this would have been a Class B misdemeanor case. Unfortunately, throwing the weed out the window virtually guarantees a third-degree felony charge for Tampering with Evidence. It’s a story that’s been told a thousand times. In fact, a couple of central Texas lawyers made this video to help you remember a similar story:

Tampering with evidence isn’t limited to drug cases though. Here’s a look at the Tampering with Evidence statute and examples of how individuals have been charged with Tampering with Evidence:

In 2011, an El Paso man was arrested for tampering with evidence during a traffic stop because the police officer detected a marijuana odor and when he asked the man to open his mouth, the man revealed he had swallowed his weed.

In 2013, a teenager in Collin County was found guilty of tampering with evidence when he killed his friend and tried to put the body in a storm drain.

In 2017, a Rockwall police officer responded to a theft at a beauty store and was told a Nissan with out-of-state plates was fleeing from the scene. The officer observed the vehicle drive the wrong way down a road before swerving across the highway to turn around. After pulling the vehicle over, the officer saw the driver making furtive movements, including reaching under the seat and throwing something out of the window. Upon arresting the driver, the officer searched the vehicle and found marijuana scattered on the floorboard, on the passenger seat, on the dashboard, and outside of the vehicle. Because the driver attempted to conceal and get rid of the drugs, the case was tried as a felony rather than a misdemeanor marijuana possession case. The driver was convicted and sentenced to a $10,000 fine, in addition to 20 years in prison.

In 2018, a Fort Worth man was sentenced to twenty years in prison for tampering with evidence (in addition to a life-sentence for murder) for dismembering and burning the body of a woman whom he argued died during consensual sex.

Earlier this year, a Bryan man was arrested for tampering with evidence when he was found trying to flush weed down the toilet at his home.

Tampering with evidence is not limited to a specific drug or even something as severe as a human corpse. Evidence includes a very wide array of items, ranging from documents to a small amount of weed to something you could find at a murder scene. Think of it this way: if it can be used to influence the outcome of an investigation or court case, it is probably evidence, and you should not give officers or investigators reason to believe you are trying to destroy or destroying it.

Is Tampering with Evidence Only Applicable to Illicit or Illegal Objects?

No. Remember when Enron was in the news for shredding a ton of documents while an investigation of wrongful behavior was underway? Enron was hit with a tampering with evidence charge because they engaged in the destruction of documents that could have impacted the outcome of a criminal investigation. As Enron demonstrated, no drugs or illicit materials are required to be charged with tampering. It is the physical act of changing or altering evidence knowing that an investigation is coming or currently happening that is against the law.

How Can You Avoid Tampering with Evidence Charges?

If you are being pulled over, do not begin dumping things out of the window that would otherwise be a misdemeanor. Stay calm, remember you do not have to answer questions, and do not give officers reason to investigate beyond the reason for the traffic stop. Do not give consent to search.

If you are at home, do not give officers reason to suspect there is any illicit activity going on in your home. Homes have a higher expectation of privacy, so it takes more for an officer to be able to walk in. However, if the officer believes there is an emergency or that evidence is actively being destroyed, there is a good chance he or she will enter or attempt to enter. Keep in mind that police officers normally need a warrant to enter your home. But there are a few legal ways to get around the privacy protection in your home, including a doctrine called exigent circumstances. Basically, exigent circumstances are an exception to the general requirement that cops need a warrant to enter your home when they suspect there will be serious (and imminent) harm to life or property, that a suspect will escape, or that without action, destruction of evidence is imminent.