April 24, 2020

Court of Criminal Appeals

Stahmann v. State

No. PD-0556-18                     4/22/20


Is the mere movement of a physical thing sufficient to constitute “altering” or “concealment” for the offense of tampering with physical evidence under Penal Code §37.09?

Holding (Hervey, J. joined by Keasler, Richardson, Newell, and Walker, JJ.):

No. The Court concluded that the evidence was insufficient to prove that the defendant altered the prescription pill bottle when he threw it over the fence because the mere act of throwing the pill bottle did not change the bottle itself. In addition, the Court agreed with the 13th Court of Appeals that “[a]ctual concealment requires a showing that the allegedly concealed item was hidden, removed from sight or notice, or kept from discovery or observation.” The Court indicated that while a rational jury could have reasonably inferred that the defendant intended to conceal the pill bottle when he threw it over the wire fence, the evidence showed that he failed to conceal it as he intended because the bottle landed short of the bush in plain view. Read Opinion.

Dissenting (Yeary, J. joined by Keller, P.J., and Keel and Slaughter, JJ.):

“I would hold that the evidence was legally sufficient to support the jury’s finding that [the defendant] committed the offense of tampering with physical evidence in that he concealed a thing with intent to impair its availability as evidence in an investigation or official proceeding. Accordingly, I would reverse the judgment of the court of appeals and reinstate the judgment of the trial court. Because the Court does not, I respectfully dissent.” Read Opinion.


The bottom line is that, in a tampering case based upon concealment, the defendant must actually conceal the evidence. If you wonder how a defendant might be successfully prosecuted for concealing evidence that the police never find, you would not be alone. The majority cites an unpublished decision in Munsch with apparent approval, so hopefully your facts are less like Stahmann and more like Munsch, in which the defendant’s conviction was upheld.

Texas Courts of Appeals

Lamb v. State

No. 06-19-00203-CR              4/17/20


Is a search of the defendant’s person constitutionally permissible when the search warrant did not name the defendant in the warrant and only authorized the search of “the described property, including any and all outbuildings and motor vehicles?”


No. Because the warrant did not authorize the search of the defendant’s person, and the State failed to show that an exception to the warrant requirement applied, the search of the defendant’s person was constitutionally impermissible. Read Opinion.


The defendant was ultimately arrested, but the cell phone was seized before that arrest occurred. Thus, no attempt was made to justify the recovery of the cell phone as a search incident to arrest or an inventory. This decision relies upon some of the lesser-known authority from the Supreme Court regarding searches of persons based on search warrants, such as Ybarra v. Illinois. If you have one of those types of searches based upon a warrant, definitely read this decision and the Ybarra line of cases. The good news for the State is that the case—online solicitation of a minor—may still be able to go forward with the evidence that was not suppressed.

Villarreal v. State

No. 14-18-00406-CR              4/16/20


Does the absence of a database record pertaining to vehicle registration constitute reasonable suspicion of criminal wrongdoing that authorizes officers to initiate traffic stops?


Yes. Nothing in the record undermined the officer’s uncontested testimony that the “no record” return indicated to the officer that the defendant’s vehicle was unregistered. The possibility of an innocent explanation for the “no record” return (e.g., that the truck was newly registered) did not prevent the officer from reasonably suspecting that the vehicle was unregistered based on the “no record” return. Thus, the officer justifiably stopped the defendant to resolve the ambiguity. Read Opinion.


“Despite ample jurisprudence from other courts that have examined this issue, the majority concludes the absence of a database record pertaining to vehicle registration is evidence of criminal wrongdoing that authorizes officers to initiate traffic stops, even when the officer knows (1) there are legitimate reasons a registered vehicle may not appear in the database and (2) s/he does not know how often the database is updated. I disagree with the majority’s analysis, conclude the absence of a record under these circumstances is nothing more than the absence of evidence, and believe the majority’s conclusion erroneously diminishes the rights guaranteed to the People by the Texas and United States constitutions. As a result, I dissent.” Read Opinion.


The majority opinion is a very good decision that should be very helpful to prosecutors. The majority discusses similar decisions that have dealt with traffic stops based on what computers have told an officer about a vehicle or its presumed driver. Remember that all that an officer needs to conduct a traffic stop is reasonable suspicion, not probable cause, and certainly not proof beyond a reasonable doubt. This decision is very much in line with the decision of the United States Supreme Court in Kansas v. Glover, decided earlier this month.

Texas Attorney General Request for Opinion

RQ-0347-KP               Request Received 4/20/30


May a county judge preempt the Texas Pawnshop Act by issuing emergency orders regulating the business of pawnshops during a declared disaster? Read Request.