Thurston v. State
No. PD-1316-14
Case Summary written by Jeryn Crabb, Staff Member.
During trial, Thurston admitted to shooting the victim in self-defense, failing to call authorities for a one-day period, wrapping the body in a sleeping bag and a blue tarp, and ultimately dumping the body near some railroad tracks. The jury acquitted Thurston of murder but convicted him of tampering with evidence.
Thurston appealed his conviction to determine the definition of “pending” in the tampering with evidence statute, Texas Penal Code § 37.09(a)(1). After examining the record, the Court decided its decision to grant review was improvident and Thurston’s petition for discretionary review was dismissed.
JUDGE KELLER joined by JUDGE JOHNSON and JUDGE RICHARDSON, concurring.
The Court’s granting of Thurston’s petition for review was improvident because resolving the definition of “pending” in the tampering with evidence statute could not lead to relief on Thurston’s sufficiency claim. This is because an alternate theory of committing tampering was submitted to the jury and that theory was supported by sufficient evidence.
The indictment for the tampering charge contained two methods of evidence of tampering: 1) knowing that a murder had been committed, the defendant destroyed, concealed, or altered a human corpse with the intent to damage its ability to be identified or used as evidence in an investigation or proceeding and 2) knowing that an investigation or official proceeding was “pending or in progress” the defendant destroyed, concealed, or altered a human corpse. The jury charge contained both of these theories of liability and the jury delivered a general verdict with respect to the tampering offense.
Thurston argued he could not be convicted of tampering under the first theory of liability because he had been acquitted of murder, but under Jackson v. Virginia, 443 U.S. 307 (1979), the evidence of Thurston shooting the victim and failing to notify authorities was sufficient to support the allegation of murder that was included in the tampering indictment. Also, Thurston’s disposal of the body suggested his consciousness of guilt. Because the state’s first theory of liability was supported by sufficient evidence and the jury delivered a general verdict, meaning that the verdict is considered to be supported by evidence if it supports one of the theories submitted, Thurston’s argument for not being liable for tampering with evidence because the definition of “pending” is not correct does not mater. Thurston did not raise a jury-charge claim regarding the sufficiency of evidence used to prove his criminal liability before the court of appeals, and because of this, his argument about the meaning of “pending” relates to no claim upon which he can obtain relief.