Texas Stamp


PD-0635-22 01/25/2023

“Even assuming the statutory construction of ‘conceal’ was correct, the court of appeals misapplied the applicable standard of review because any ‘highly fact specific’ analysis required the court of appeals to defer to the factfinder under the Jackson v. Virginia standard.”

A highway patrol officer turned on his overhead lights to stop McPherson for speeding. McPherson moved over to the shoulder but continued driving for one or two miles. During that time, brown objects flew out of his truck window and hit the patrol car’s windshield. The trooper activated his siren so the patrol car’s equipment would mark the GPS location and he could return to search for what McPherson had thrown from the vehicle. Indeed, after stopping the truck and issuing a citation, the trooper returned to that location. Within eight seconds of arriving, the trooper discovered a marijuana joint and in less than a minute had discovered five more, all wrapped in brown cigar paper. McPherson was charged with tampering with evidence by concealing, and the jury convicted.

On appeal, McPherson argued the evidence was insufficient to prove he actually concealed the marijuana under Stahmann v. State, 602 S.W.3d 573 (Tex. Crim. App. 2020), which requires “a showing that the allegedly concealed item was hidden[,] …removed from sight or notice, or kept from discovery or observation.” The court of appeals agreed the evidence was insufficient. While describing its analysis as “highly fact specific,” the court of appeals relied on three factors common among cases of insufficient concealment: (1) the items were discarded in view of police (or others who told police what they knew); (2) the items landed in an area where they were still in plain view; and (3) police easily retrieved the items.

The State argues that the court of appeals misapplied the sufficiency standard of review by employing a divide-and-conquer approach and overemphasizing that the joints were in plain view and quickly retrieved. It contends that a rational jury could have determined that the joints had been concealed because the trooper did not maintain visual contact with them. The court of appeals also should have considered that McPherson told the trooper that the items he threw out the window were napkins, demonstrating consciousness of guilt.

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