Tampering with or Fabricating Physical Evidence in Texas By Jason Trumpler, P.C. on July 26, 2016

Felony Tampering with or Fabricating Physical Evidence Attorney

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While you may only think of tampering with evidence charges when it comes to long-term investigations, the State can charge you with "tampering" even for simply concealing items or documents.

The most commonly charged form of "tampering" that I regularly see in court has been portrayed several times in classic comedies.

For example, in the movie "Super Troopers," a car full of boys is driving down the highway when a police cruiser comes up behind them to pull them over. Before the "super troopers" stop the car, the youths inside force the guy in the backseat to eat the contraband to conceal the evidence and evade a possession charge. Much like "Cheech and Chong's: Up in Smoke," for comedic purposes, the officers do not notice the signs of intoxication or paraphernalia, but in real life, throughout Central Texas, officers will arrest you for "tampering with physical evidence" for this type of behavior. (Though, whether an investigation or official proceeding was pending at the time the individual consumed said contraband is certainly up for debate.)  While comical in the movie - "tampering with evidence" is a Felony.

Below, Attorney Jason Trumpler will discuss "tampering or fabricating" and what to do when stopped by an officer to avoid the charge in the first place.  
 
When an officer starts to communicate with you, it is imperative that rather than give them false or fabricated information or documents, or give the impression that you are doing so, you contact an attorney. By reaching out to an attorney, you can avoid "tampering with or fabricating physical evidence" charges altogether.
 
Texas Penal Code § 37.09. Tampering With or Fabricating Physical Evidence states that:
 
  • (a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
    • (1) 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;  or
    • (2) makes, presents, or uses 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.
  • (b) 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.
  • (d) A person commits an offense if the person:

    • (1) 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 the offense

 
The Texas Penal Code generally classifies "tampering" as a 3rd Degree Felony. The range of  punishment on a 3rd Degree Felony is:
  • Two Years to Ten Years in the Texas Department of Criminal Justice Institutional Division
  • Up to a $10,000 Fine.
First, the critical thing to remember is the mental state "knowing." Namely, you must know that an investigation or official proceeding is going on in the first place.
 
Secondly, you must have the requisite "intent." You must act with the:
  • intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or, 

  • intent to affect the course or outcome of the investigation or official proceeding

  • intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense

The most common defense towards "tampering" charges is a lack of knowledge or intent. If the person did not knowingly alter a piece of evidence or have knowledge of its illegality, then he or she can avoid a conviction.
 
In the case of our drug eating accomplice in "Super Troopers," he or she would most definitely be charged with tampering if officers were legally searching the car, and they found trace elements of contraband or other paraphernalia. The trace elements or "paraphernalia" make it more evident that the individual was trying to evade an arrest for possession charges. If he had eaten the drugs earlier in the movie, well before he was aware of a possible "drug possession investigation" and was merely intoxicated, the State could not prove "tampering." The argument I usually make in similar cases, however, and I am often successful, is that the client did not know that he or she was interfering with an official investigation or proceeding at the time he or she consumed the drugs.   
 
This same Texas Penal Code Section also makes it illegal to "tamper with a human corpse." The State punishes "tampering with a human corpse" as a 2nd Degree Felony. The range of punishment on a 2nd Degree Felony is:
  • Two to Ten Years in the Texas Department of Criminal Justice Institutional Division
  • Fine Up to $10,000.

The State takes "tampering" offenses very seriously, and if the State proves intent, the State can add them on top of other criminal charges. To find out how to challenge these charges and accusations, contact me at 512-457-5200 or e-mail me at jason.trumpler@trumplerlaw.com.

There are many different ways to defend these cases, and I can help you or someone you know navigate through the proceedings. It is essential to contact me to potentially have these charges reduced and ensure that your rights are protected. While I can never guarantee a positive outcome, having an experienced attorney can ensure you receive the best possible result

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Jason Trumpler

The Law Offices of Jason Trumpler

Jason Trumpler has handled thousands of criminal cases over nearly 20 years. He is a current or past member of several national, state, and local legal associations, including:

  • American Bar Association
  • Austin Bar Association
  • Williamson County Bar Association
  • National College for DUI Defense®
  • Texas Criminal Defense Lawyers' Association
  • National Association of Criminal Defense Lawyers
  • Austin Criminal Defense Lawyers Association
  • DUI Defense Lawyers Association

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