Have you been arrested for or charged with tampering with evidence? A person can be charged with tampering with evidence by itself, but tampering with evidence is usually connected to another crime, generally a more serious crime. Often the person is charged with both tampering as well as the underlying crime. Tampering with evidence can be found in Section 37.09 of the Texas Penal Code. Although a tampering charge can be an add-on crime, it can still end up being a felony charge in its own right. Prosecutors will often utilize the Tampering charge to get two bites at the apple. By going after the underlying crime as well as the tampering charge, prosecutors can have two opportunities to obtain either one or multiple convictions. This can result in an unfortunate situation in which a person is acquitted of a criminal charge, but convicted of tampering with the evidence of that same criminal charge. If you are charged with tampering with evidence, call me today for a free and confidential discussion of your case and the criminal court system in general.
Can Tampering with Evidence Be a Serious Felony?
It very well can be. Tampering with evidence can sometimes be more serious in reality that it might seem to be on the surface, or in the indictment. This is especially true if the underlying crime is heavy duty felony. Sometimes a situation will arise in which that heavy duty felony is not a slam dunk for prosecutors—sometimes there are problems with prosecuting the underlying criminal charge—but maybe some of the evidence in that felony case (a handgun that was used in the commission of the crime, for example) was destroyed or altered or compromised. Often times in these circumstances, Tampering is easier to prove (by the facts and circumstances, by an admission of the defendant, or some other reason). In these situations, tampering with Evidence can really have some bite to it. Furthermore, if that evidence that is alleged to have been tampered with is a deceased body, a human corpse, then that person charged could be looking at a second degree felony.
What is the Law on Tampering with Evidence?
Tampering with Evidence can be either a second degree felony, a third degree felony, or a Class A misdemeanor. This all will depend on the facts: what kind of evidence is at stake? What was concealed? Felony charges need to go through indictment process. If indicted in Tarrant County, a felony will end up in one of ten criminal district courts; misdemeanors will end up in one of ten County Criminal Courts. Here is the statute from the Texas Penal Code:
Section 37.09. Tampering with or Fabricating Physical Evidence.
- A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
- Alters, destroys, or conceals 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; or
- Makes, presents, or uses any record, document, or thing with knowledge of its falsity and with the intent to affect the course or outcome of the investigation or official proceeding.
- 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.
- An offense under Subsection (a) or Subsection (d)(1) is a felony of the third degree, unless the thing that 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.
- A person commits an offense if that person:
- 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 that offense; or
- 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.
Basically, a tampering charge can cover any kind of evidence that is considered relevant to the prosecution of some crime. It could be anything. This could be any document, or any physical item that could be used as evidence of culpability in a criminal case. This could be an article of clothing in an assault or a murder case. This could be a quantity of controlled substance in a drug case. This could be destroying or disposing of some sort of weapon. This could be text messages or photos on an iphone. The penalties for Tampering can range from a misdemeanor to a second degree felony. Class A misdemeanors can carry up to one year in jail. Third degree felonies carry a potential range of punishment of between two and ten years in the Texas Department of Corrections. Second degree felonies carry a range of punishment between two to twenty years in the Texas Department of Corrections.
Example: this is an example from a trial that I had several years ago: Two men are involved in a long and emotionally charged fight over a woman. One guy is the ex-husband. The other guy is the new guy she is dating. (I represent this guy.) She has one son of around 8 years old with her ex-husband. She has full custody. The new guy and the ex-husband are formerly friends, but things have soured. The ex-husband is six feet five inches tall. My client is five feet eight inches tall. The conflict escalates over the course of several months. Threats are made on both sides. The ex-husband makes violent threats to both my client as well as to his ex-wife. She is scared for her safety, and for the safety of the child. My client buys a handgun out of fear and concern for his safety, which he keeps in the glove box of his jeep. Things came to a boiling point late one night. Texts are exchanged. Threats are made. My client drives over to his house. The ex-husband runs out of his home and aggressively charges my client’s vehicle. The ex-husband has a gun and tells this in a threatening way to my client. A gun fight ensues. The ex-husband is shot. There are almost certainly shots fired on both sides. It all happens very quickly. When the dust settles, the ex-husband has been shot twice.
My client drives away before police arrive. He drives to an empty field near his work. He dismantles the gun into several pieces and disperses them across the field, throwing them in mud and high grass in different places. A police investigation uncovers the weapon. My client is arrested and charged with both aggravated assault with a deadly weapon and tampering with evidence. However, prosecutors are reluctant to have the ex-husband testify because he has done so many bad acts toward my client. He has harassed my client and instigated matters over and over again. In the end, they dismissed the aggravated assault charge altogether, and proceeded on the tampering with evidence charge. This was how they could backdoor the shooting without having the ex-husband testify and endure cross examination, and secure a conviction on tampering with evidence. My client had little defense to the tampering with evidence charge. They had video of my client telling police how he dismantled the gun, and where it could be found.