Rabb, Richard Lee

            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1643-12


                           RICHARD LEE RABB, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SEVENTH COURT OF APPEALS
                          ROCKWALL COUNTY

       A LCALA, J., filed a dissenting opinion in which K ELLER, P.J., joined.

                                 DISSENTING OPINION

       Eating, swallowing, digesting, and eliminating: These are things every human being

intimately understands based on common sense and a lifetime of daily personal experiences.

In deference to the fact-finder’s common sense, I would hold that the evidence is legally

sufficient to support the conviction of Richard Lee Rabb, appellant, for tampering with

physical evidence. See Jackson v. Virginia, 

443 U.S. 307, 319

, 

99 S. Ct. 2781, 2789

 (1979)

(evidence is sufficient when, viewing the evidence and all reasonable inferences in the light
                                                                                        Rabb - 2

most favorable to the verdict, a rational fact-finder could have found each element of the

offense beyond a reasonable doubt). I conclude that a rational fact-finder could have

determined that appellant ruined or rendered useless the pills and baggie by swallowing them,

and, therefore, that he tampered with physical evidence by destroying it. See T EX. P ENAL

C ODE A NN. § 37.09(a)(1) (West 2011). In contrast, the majority opinion circumvents the

fact-finder’s decision, calling it irrational, and, in the process, resurrects the long-dead

reasonable-alternative-hypothesis analysis, which permits an appellate court to find the

evidence insufficient based on the existence of scenarios in which the fact-finder’s verdict

could theoretically be wrong. See Geesa v. State, 

820 S.W.2d 154, 156, 159

 (Tex. Crim.

App. 1991) (rejecting reasonable hypothesis analytical construct for evaluating sufficiency

of evidence). I would keep the nail in the coffin of the reasonable-alternative-hypothesis

analytical construct, hold that the evidence is legally sufficient, sustain the State’s first and

second grounds in its petition for discretionary review, and reverse the judgment of the court

of appeals. I, therefore, respectfully dissent.

       I. Evidence is Sufficient to Establish Tampering with Physical Evidence

       By relying on common sense and life experiences, the fact-finder was rational in

determining that the pills and baggie were ruined or rendered useless by appellant’s act of

swallowing them. The fact-finder’s determination was not irrational merely because of the

existence of an alternative reasonable hypothesis that is inconsistent with appellant’s guilt,

and the State was not required to provide affirmative evidence to disprove that alternative
                                                                                         Rabb - 3

hypothesis. Because the fact-finder was rational in finding that the evidence was destroyed

based upon the drawing of reasonable inferences, I would hold that the evidence is sufficient

to establish appellant’s guilt.

       A. The Baggie and Pills Were Rendered Useless for Their Intended Purpose

       The record reflects that appellant was at a Walmart with his brother, James, when

James was detained by Walmart security officers on suspicion of shoplifting. After police

officers arrived, appellant was also detained and questioned about whether he had taken any

store merchandise without paying for it. Appellant denied having stolen anything and

consented to a search. During the police officer’s subsequent search of appellant, a Walmart

security officer alerted the officer that appellant was holding something in his hand. The

police officer reached up and attempted to take the object, a plastic baggie, out of appellant’s

hand, but before he could reach it, appellant placed it into his mouth and refused to spit it out.

A struggle ensued as the officer attempted to force appellant to spit out the baggie, and, at

some point during the struggle, appellant swallowed the baggie. A second officer eventually

tasered appellant in order to subdue him, and appellant was placed under arrest. An

ambulance was called to the scene to check appellant’s vital signs, at which point appellant

told a paramedic that the baggie contained prescription pills that had not been prescribed to

him. The baggie and pills were never recovered.

       Based on a lifetime of personal experience with the digestive process that follows

consumption of food and pills, a rational trier of fact could have found that the pills and
                                                                                         Rabb - 4

baggie were destroyed by appellant’s act of swallowing them, either because (1) they were

digested in that process, or (2) they were expelled in an unsanitary condition in appellant’s

excrement after passing through his intestinal tract. Under either possible scenario, a rational

fact-finder could have found, based on the drawing of reasonable inferences, that the pills

were destroyed.

       A person commits the offense of tampering with physical evidence if, “knowing that

an investigation or official proceeding is pending or in progress, he . . . 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[.]” T EX. P ENAL C ODE §

37.09(a)(1). This Court has previously interpreted the meaning of the statutory term

“destroys” in Williams v. State, in which it held that an item of evidence is destroyed when

it is “ruined and rendered useless,” or, stated differently, when it “has lost its identity and is

no longer recognizable.” 

270 S.W.3d 140, 145-46

 (Tex. Crim. App. 2008). In Williams, the

defendant was convicted of tampering with physical evidence after a crack pipe fell to the

ground during a police officer’s pat-down search of him and he stomped on the pipe,

breaking it into pieces. 

Id. at 141

. On appeal, Williams argued that the evidence was

insufficient to show that the crack pipe was destroyed because the crack pipe’s remains, glass

shards and a copper mesh filter, were admitted into evidence at trial and, therefore, retained

some evidentiary value. 

Id. at 145

. This Court disagreed. It explained that the plain

meaning of the word “destroys” does not require proof of a lack of physical existence or a
                                                                                           Rabb - 5

loss of evidentiary value because “the remains of a destroyed object can still have evidentiary

value.” 

Id. at 146

. Applying this interpretation in Williams, this Court explained that the

crack pipe was destroyed within the meaning of the evidence-tampering statute because

officers were “unable to retrieve every piece of the shattered crack pipe, and even if the

recovered pieces could have been glued together in an attempt to reconstruct the evidence

to its former physical state, it would be less than a complete crack pipe.” 

Id.

 It went on to

hold that the evidence was sufficient to show that the crack pipe was destroyed because the

recovered pieces, glass shards and a copper mesh filter, “had lost their identity as a crack

pipe and were not recognizable as a crack pipe.” 

Id.

       Williams decisively determined that, although the State must prove that a defendant

acted with intent to impair the verity, legibility, or availability of evidence in an investigation,

it need not prove that the altered, destroyed, or concealed item could not be used as evidence

at a defendant’s trial. See id.; T EX. P ENAL C ODE § 37.09(a)(1). Rather, under Williams, the

relevant question is whether the evidence has been “ruined” or “rendered useless” for its

intended purpose, or alternatively, whether it has “lost its identity” and is “no longer

recognizable” as a result of the defendant’s actions. See Williams, 

270 S.W.3d at 146

.

Applying the reasoning of Williams to the facts of this case, I would hold that a rational fact-

finder could have concluded that the pills and baggie were ruined or rendered useless, and

thus destroyed, by appellant’s act of swallowing them. See 

id. at 145-46

; see also T EX.

P ENAL C ODE § 37.09(a)(1). It is irrelevant whether the pills and baggie could possibly have
                                                                                           Rabb - 6

retained some evidentiary value if they had passed intact through appellant’s intestinal tract

and been recovered. Regardless of whether the pills and baggie were entirely or partially

digested by appellant or were expelled by appellant with his excrement, the fact-finder was

not irrational in determining that their condition after passing through his intestinal tract

“would be less than” their “former physical state,” and, therefore, ruined. See Williams, 

270 S.W.3d at 146

. I would hold that the fact-finder was rational in determining that the pills and

baggie, whether digested or expelled, were rendered ruined or useless as to their intended

purpose, and, therefore, were destroyed. See id.; T EX. P ENAL C ODE § 37.09(a)(1).1

       B. Existence of a Reasonable Alternative Does Not Make Evidence Insufficient

       The absence of direct evidence about what actually happened to the baggie and pills

does not mean that the fact-finder engaged in impermissible speculation, as suggested by the

court of appeals, because under any possible scenario, the fact-finder could rationally infer

from the circumstances that the items were destroyed. See Hooper v. State, 

214 S.W.3d 9, 15

 (Tex. Crim. App. 2007) (noting that, although fact-finder is not permitted to reach

conclusions based on mere speculation, “direct evidence of the elements of the offense is not

required”; fact-finder is “permitted to make reasonable inferences from the evidence




1
        I agree with appellant that the evidence in this case also establishes that he concealed and
altered the pills and baggie, but I disagree that this necessarily means that they were not also
destroyed. The same fact pattern can establish alteration, destruction and concealment of evidence.
See TEX . PENAL CODE § 37.09(a)(1). As Judge Womack pointed out in his concurring opinion in
Williams, when “something is destroyed, it may also be said to have been altered” because these
terms “may not be mutually exclusive.” See Williams v. State, 

270 S.W.3d 140, 147

 (Tex. Crim.
App. 2008) (Womack, J., concurring).
                                                                                       Rabb - 7

presented at trial,” and circumstantial evidence “is as probative as direct evidence” in

establishing an actor’s guilt).

       In reaching its conclusion that the evidence is insufficient, the majority opinion

reasons that, because some drug mules transport drugs in their intestines without those drugs

being ruined, it was at least theoretically possible that the baggie and pills in this case were

not ruined if they passed through appellant’s intestinal tract and were expelled in his

excrement. For two reasons, I disagree with this line of reasoning. First, the fact-finder

could have rationally determined that appellant’s consumption of the baggie and pills, under

the circumstances, would lead to their destruction because appellant swallowed those objects

suddenly and without having planned to do so. Although I acknowledge, as the majority

opinion does, that some drug mules are able to transport balloons filled with heroin and

cocaine inside their intestinal tracts without those drugs being destroyed, that particular

method of transporting drugs requires preparation. Mules will generally transport heroin and

cocaine by placing the drugs inside two or more condoms, with each condom layered inside

the other, so that the outer condom exposed to excrement may be discarded while the inner

condom containing the drugs remains sanitary. The properly packaged balloons can pass

through the intestinal tract without the drugs being compromised because such items will not

generally dissolve in intestinal fluids. The drugs contained within the inner condom remain

useable and in a sanitary condition because only the outer condom is exposed to intestinal

fluids and excrement. Even in those situations, which involve careful planning and design,
                                                                                      Rabb - 8

it is common knowledge that things can sometimes go wrong—for example, the balloons

might rupture or become lodged in the intestinal tract.

       In contrast, here, the fact-finder could have rationally inferred from the circumstances

that appellant was not planning on swallowing the baggie and pills that day and that his

impulsive act of swallowing those objects would cause them, unlike drugs packaged in

multiply-layered condoms, to succumb to the corrosive effects of his intestinal fluids. And,

even if the baggie and pills survived the intestinal tract, they would have passed in

appellant’s excrement, causing them to be ruined because they were unsanitary and unusable.

Although the fact-finder could have reached a different conclusion had it weighed the facts

differently, this Court must defer to the fact-finder’s common sense with respect to the

uselessness of pills that have passed through a person’s intestinal tract. See Jackson, 

443 U.S. at 319

, 

99 S. Ct. at 2789

 (describing sufficiency-review standard as giving “full play to

the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts”); Temple v.

State, 

390 S.W.3d 341, 360

 (Tex. Crim. App. 2013) (when record supports conflicting

inferences, “we presume that the jury resolved the conflicts in favor of the verdict and

therefore defer to that determination”) (quoting Jackson, 

443 U.S. at 326

, 

99 S. Ct. at 2792

);

Hooper, 

214 S.W.3d at 15

 (fact-finder should be permitted “to draw multiple reasonable

inferences as long as each inference is supported by the evidence presented at trial”).

       Second, I disagree with the majority opinion’s focus on circumstances that might be
                                                                                   Rabb - 9

consistent with appellant’s innocence, when it should instead focus on whether the fact-

finder could rationally have found appellant guilty. The majority opinion reasons that,

because some people can swallow items without those items being destroyed, such an

outcome was at least theoretically possible in this case and, therefore, the existence of a

circumstance that would be inconsistent with appellant’s guilt renders the evidence

insufficient.   This type of reasoning marks the revival of the alternative-reasonable-

hypothesis analytical construct, which required a reviewing court to find that every other

reasonable hypothesis raised by the evidence was negated, save and except for that

establishing the defendant’s guilt, if a conviction was to be affirmed in a circumstantial-

evidence case. Reyes v. State, 

938 S.W.2d 718, 719

 (Tex. Crim. App. 1996) (stating that

prior to Geesa v. State, this Court “employed the ‘reasonable-hypothesis-of-innocence’

analytical construct to review the sufficiency of the evidence in circumstantial evidence

cases”) (citing Geesa, 

820 S.W.2d at 158

).      But this Court long ago “abolished the

reasonable-hypothesis construct for measuring the sufficiency of the evidence in a

circumstantial evidence case[.]” Taylor v. State, 

10 S.W.3d 673, 680

 (Tex. Crim. App.

2000). “Courts and juries no longer face the difficult task of excluding every reasonable

hypothesis other than the defendant’s guilt.” Laster v. State, 

275 S.W.3d 512, 521

 (Tex.

Crim. App. 2009). And the State need not present evidence that conclusively excludes every

conceivable alternative to a defendant’s guilt. See Wright v. West, 

505 U.S. 277, 296

, 

112 S. Ct. 2482, 2493

 (1992) (prosecution has no affirmative duty to “rule out every hypothesis
                                                                                       Rabb - 10

except that of guilt”) (quoting Jackson, 

443 U.S. at 326

); Merritt v. State, 

368 S.W.3d 516, 525

 (Tex. Crim. App. 2012) (“It is the State’s burden to prove each element of the offense

beyond a reasonable doubt, not to exclude every conceivable alternative to a defendant’s

guilt.”). Even if it is true that some drug mules are able to transport drugs in their intestines

in multiply-layered condoms without the drugs being destroyed, the existence of an

alternative reasonable hypothesis does not mean that a fact-finder here would be irrational

in determining that, where the pills were contained in a single plastic baggie and hurriedly

swallowed by appellant in order to evade police detection, appellant’s consumption of the

baggie and pills destroyed the items, either through digestion or contact with excrement. I

conclude that the fact-finder could have rationally determined, based on personal experience,

that the baggie and pills either (1) succumbed to gastrointestinal fluids that dissolved and

converted the contents into something else, or (2) passed through the intestinal tract and were

expelled from the body through excrement, thereby ruining them and rendering them useless

for their intended purpose.

                                        II. Conclusion

       The majority opinion takes the unusually odd position of calling the fact-finder

irrational for deciding that a baggie and pills that were either digested or exposed to

excrement were “destroyed” within the meaning of the evidence-tampering statute. It is often

said that this Court, in reviewing for sufficiency of the evidence, should not act as a

thirteenth juror and should instead limit itself to guarding against the rare occurrence when
                                                                                       Rabb - 11

a fact-finder does not act rationally. See Isassi v. State, 

330 S.W.3d 633, 638

 (Tex. Crim.

App. 2010); see also United States v. Vargas-Ocampo, 

711 F.3d 508, 512

 (5th Cir. 2013)

(original op.) (stating that fact-finder’s role is to perform “weighing of inferences”; appellate

court reviewing for sufficiency must defer to fact-finder’s reasonable rejection of “benign

explanation” for incriminating inferences). Because I conclude that a rational fact-finder

could have determined that the baggie and pills were rendered useless or ruined by

appellant’s act of swallowing them, I would hold that the evidence is legally sufficient to

sustain appellant’s conviction for tampering with physical evidence. I, therefore, respectfully

dissent.

Filed: June 25, 2014

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