In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-18-00227-CR
LONNIE KADE WELSH, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 154th District Court Lamb County, Texas Trial Court No. DCR-5715-18, Honorable Felix Klein, Presiding
February 26, 2019
OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant Lonnie Kade Welsh appeals his conviction by jury of the third-degree
felony offense of tampering with or fabricating physical evidence with the intent to affect
the course or outcome of an investigation or official proceeding1 and the resulting court-
imposed eleven-year sentence. Through one issue, appellant argues the evidence was
insufficient to support his conviction. We agree, and will reverse the court’s judgment.
1 TEX. PENAL CODE ANN. 37.09(a)(2) (West 2018). Background
Appellant is confined in a facility housing persons who have been civilly committed
as sexually violent predators.2 The events leading to his current prosecution began when
he became combative while the facility’s security staff was transporting him to a medical
appointment. His behavior caused the employees to return appellant to the facility rather
than taking him to his appointment. Appellant admitted during his testimony at trial that
he had a “plan” to cause the employees to use force against him. His purpose for such
a plan was to later sue the employees “to get paid” and to show that what the employees
are doing at this facility “is actual punishment and not treatment.”
Appellant was restrained during the return to the facility. A photograph taken at
that time was admitted into evidence, and showed no injuries to appellant. A video taken
at that time also was admitted. The video shows appellant’s outbursts and the physical
resistance that led to his restraint. Nothing in the video shows the staff injured appellant
in any way and no injuries are visible. The facility’s director of security, Christopher
Woods, testified he saw appellant shortly after he was returned to the facility. Woods told
the jury that when he returned to speak with appellant about twenty minutes later, he saw
appellant through the room window. He saw appellant “punching” himself in the face. A
nurse testified she accompanied Woods to perform a medical assessment and heard
Woods say appellant was hitting himself in the face. The nurse did not see appellant hit
himself but did see he had some swelling on his right eye and a scrape below his hairline.
She saw appellant later in the day and he had more injuries to his face, including a
Chapter 841 of the Texas Health and Safety Code, providing for civil commitment 2
of sexually violent predators, was enacted in 1999. TEX. HEALTH & SAFETY CODE ANN. § 841.041(a) (West 2015).
2 contusion and swelling on the left eye. She told the jury these injuries either “just hadn’t
swelled up yet or he did more hitting to himself.” She described the injuries as “self-
inflicted injuries.” Appellant also complained that his left shoulder hurt. Photographs of
appellant’s injuries were admitted into evidence.
Appellant asked Woods to call the police so he could file a report of assault by the
staff. Littlefield Police Chief Ross Hester responded to the call and spoke with appellant
that day. Appellant told him the staff “slammed [his] face in the freaking floor . . .”. Hester
testified he saw appellant had “some facial injuries” including a “large goose egg type welt
underneath his right eye” and “several purplish bruises on his forehead.” Hester noted
also the “areas around [appellant’s] hands were bluish, kind of swollen . . .”. Hester also
reviewed witness statements and the video and concluded appellant had not been
assaulted. He testified that “[f]rom the video I saw, I saw no overt blows being struck or
kicks administered or anything that would cause those kinds of injuries to his face.”
Woods testified he would not have called the police if appellant had not requested that he
do so because the facility has its own investigatory procedure.
At trial, appellant alternately denied, avoided answering or attempted to invoke the
protection of the Fifth Amendment when asked whether he inflicted injuries on himself.
Analysis
Appellant was charged by an indictment alleging that he did:
then and there, knowing that an investigation was pending and in progress, to-wit: an investigation into the Defendant’s refusal to return to his cell and the use of force used against the Defendant to cause his return to his cell on November 13, 2017, intentionally and knowingly make and present physical evidence, to-wit: physical injuries on the Defendant’s body, caused by the Defendant striking himself with the Defendant’s hand and by the
3 Defendant striking himself with an unknown object, with knowledge of the physical evidence’s falsity and with intent to affect the course or outcome of the investigation[.]
Appellant argues the evidence is insufficient to support his conviction. The State
argues the evidence was sufficient because it showed appellant created the injuries in an
effort to accuse the facility’s staff of assault falsely and to use the self-inflicted injuries as
evidence of that assault.
In a sufficiency review, we examine the evidence to determine whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing
Jackson v. Virginia, 443 U.S. 307 (1979)); Vodochodsky v. State, 158 S.W.3d 502, 509
(Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the
verdict and assume the trier of fact resolved conflicts in the testimony, weighed the
evidence, and drew reasonable inferences in a manner that supports the verdict.
Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
A person violates Penal Code section 37.09 if: (1) knowing that an investigation
is pending or in progress; (2) he makes, presents, or uses a thing with knowledge of its
falsity; and (3) acts with the intent to affect the course or outcome of the investigation.
TEX. PENAL CODE ANN. § 37.09(a)(2); Wilson v. State, 311 S.W.3d 452, 465 (Tex. Crim.
App. 2010).
The purpose of section 37.09 “is to maintain the honesty, integrity, and reliability
of the justice system” and to prohibit persons from creating, destroying, forging, altering
or otherwise tampering with evidence that may be used in an official investigation or
judicial proceeding. Wilson, 311 S.W.3d at 458 (citations omitted). “Obstruction-of-justice
4 offenses, such as tampering with evidence or government documents, address ‘the harm
that comes from the [actor’s] disobedience of the law—damage to the authority of the
government; a lessening of the public’s confidence in our institutions; public cynicism,
fear, and uncertainty; and a social climate that is likely to lead to even greater
disobedience.’” Id. (citation omitted).
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-18-00227-CR
LONNIE KADE WELSH, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 154th District Court Lamb County, Texas Trial Court No. DCR-5715-18, Honorable Felix Klein, Presiding
February 26, 2019
OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant Lonnie Kade Welsh appeals his conviction by jury of the third-degree
felony offense of tampering with or fabricating physical evidence with the intent to affect
the course or outcome of an investigation or official proceeding1 and the resulting court-
imposed eleven-year sentence. Through one issue, appellant argues the evidence was
insufficient to support his conviction. We agree, and will reverse the court’s judgment.
1 TEX. PENAL CODE ANN. 37.09(a)(2) (West 2018). Background
Appellant is confined in a facility housing persons who have been civilly committed
as sexually violent predators.2 The events leading to his current prosecution began when
he became combative while the facility’s security staff was transporting him to a medical
appointment. His behavior caused the employees to return appellant to the facility rather
than taking him to his appointment. Appellant admitted during his testimony at trial that
he had a “plan” to cause the employees to use force against him. His purpose for such
a plan was to later sue the employees “to get paid” and to show that what the employees
are doing at this facility “is actual punishment and not treatment.”
Appellant was restrained during the return to the facility. A photograph taken at
that time was admitted into evidence, and showed no injuries to appellant. A video taken
at that time also was admitted. The video shows appellant’s outbursts and the physical
resistance that led to his restraint. Nothing in the video shows the staff injured appellant
in any way and no injuries are visible. The facility’s director of security, Christopher
Woods, testified he saw appellant shortly after he was returned to the facility. Woods told
the jury that when he returned to speak with appellant about twenty minutes later, he saw
appellant through the room window. He saw appellant “punching” himself in the face. A
nurse testified she accompanied Woods to perform a medical assessment and heard
Woods say appellant was hitting himself in the face. The nurse did not see appellant hit
himself but did see he had some swelling on his right eye and a scrape below his hairline.
She saw appellant later in the day and he had more injuries to his face, including a
Chapter 841 of the Texas Health and Safety Code, providing for civil commitment 2
of sexually violent predators, was enacted in 1999. TEX. HEALTH & SAFETY CODE ANN. § 841.041(a) (West 2015).
2 contusion and swelling on the left eye. She told the jury these injuries either “just hadn’t
swelled up yet or he did more hitting to himself.” She described the injuries as “self-
inflicted injuries.” Appellant also complained that his left shoulder hurt. Photographs of
appellant’s injuries were admitted into evidence.
Appellant asked Woods to call the police so he could file a report of assault by the
staff. Littlefield Police Chief Ross Hester responded to the call and spoke with appellant
that day. Appellant told him the staff “slammed [his] face in the freaking floor . . .”. Hester
testified he saw appellant had “some facial injuries” including a “large goose egg type welt
underneath his right eye” and “several purplish bruises on his forehead.” Hester noted
also the “areas around [appellant’s] hands were bluish, kind of swollen . . .”. Hester also
reviewed witness statements and the video and concluded appellant had not been
assaulted. He testified that “[f]rom the video I saw, I saw no overt blows being struck or
kicks administered or anything that would cause those kinds of injuries to his face.”
Woods testified he would not have called the police if appellant had not requested that he
do so because the facility has its own investigatory procedure.
At trial, appellant alternately denied, avoided answering or attempted to invoke the
protection of the Fifth Amendment when asked whether he inflicted injuries on himself.
Analysis
Appellant was charged by an indictment alleging that he did:
then and there, knowing that an investigation was pending and in progress, to-wit: an investigation into the Defendant’s refusal to return to his cell and the use of force used against the Defendant to cause his return to his cell on November 13, 2017, intentionally and knowingly make and present physical evidence, to-wit: physical injuries on the Defendant’s body, caused by the Defendant striking himself with the Defendant’s hand and by the
3 Defendant striking himself with an unknown object, with knowledge of the physical evidence’s falsity and with intent to affect the course or outcome of the investigation[.]
Appellant argues the evidence is insufficient to support his conviction. The State
argues the evidence was sufficient because it showed appellant created the injuries in an
effort to accuse the facility’s staff of assault falsely and to use the self-inflicted injuries as
evidence of that assault.
In a sufficiency review, we examine the evidence to determine whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing
Jackson v. Virginia, 443 U.S. 307 (1979)); Vodochodsky v. State, 158 S.W.3d 502, 509
(Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the
verdict and assume the trier of fact resolved conflicts in the testimony, weighed the
evidence, and drew reasonable inferences in a manner that supports the verdict.
Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
A person violates Penal Code section 37.09 if: (1) knowing that an investigation
is pending or in progress; (2) he makes, presents, or uses a thing with knowledge of its
falsity; and (3) acts with the intent to affect the course or outcome of the investigation.
TEX. PENAL CODE ANN. § 37.09(a)(2); Wilson v. State, 311 S.W.3d 452, 465 (Tex. Crim.
App. 2010).
The purpose of section 37.09 “is to maintain the honesty, integrity, and reliability
of the justice system” and to prohibit persons from creating, destroying, forging, altering
or otherwise tampering with evidence that may be used in an official investigation or
judicial proceeding. Wilson, 311 S.W.3d at 458 (citations omitted). “Obstruction-of-justice
4 offenses, such as tampering with evidence or government documents, address ‘the harm
that comes from the [actor’s] disobedience of the law—damage to the authority of the
government; a lessening of the public’s confidence in our institutions; public cynicism,
fear, and uncertainty; and a social climate that is likely to lead to even greater
disobedience.’” Id. (citation omitted).
Appellant was charged with violating Penal Code section 37.09(a)(2). In our
evaluation of the evidence supporting his conviction, we find guidance in an opinion of
the Fort Worth Court of Appeals addressing a prosecution under section 37.09(a)(1),
which prohibits the alteration, destruction or concealment of evidence. Rotenberry v.
State, 245 S.W.3d 583, 586 (Tex. App.—Fort Worth 2007, pet. ref’d); TEX. PENAL CODE
ANN. § 37.09(a)(1). The defendant in that case concealed a body in a septic tank and
then lied to police, telling the officer he did not know where the individual was. 245 S.W.3d
at 584. Police were unable to charge the defendant with concealing physical evidence
by hiding the body because the statute of limitations had expired. Id. at 586. So, the
defendant was charged under section 37.09(a)(1) with concealing physical evidence by
telling the officer he did not know where the individual was. The court found the “State’s
theory of liability is flawed” because when the defendant lied to the officer, he “concealed
information, not physical evidence.” Id. (emphasis in original). The court pointed out the
caption of section 37.09, which reads, “Tampering with or Fabricating Physical Evidence.”
Id. at 586-87 (noting that its caption is one factor courts may consider when construing a
statute) (citations omitted) (emphasis in original). Holding the defendant concealed
information by lying to the officers but did not conceal physical evidence, the court vacated
the trial court’s judgment of conviction and dismissed the indictment. Id. at 589.
5 We find guidance also in Carrion v. State, 926 S.W.2d 625 (Tex. App.—Eastland
July 11, 1996, pet. ref’d), in which the court applied a like rationale in a prosecution under
section 37.09(a)(2). The case involved a challenge to the sufficiency of the evidence
supporting convictions on two counts of fabricating physical evidence. The record
showed the defendant’s girlfriend called police to report that another woman had
assaulted her. When police arrived, the defendant handed the officer a “stick” and told
the officer the woman used it “as a club to assault” his girlfriend. Id. at 626. In analyzing
whether the evidence was sufficient to support the conviction under the second count for
fabricating physical evidence, the court found the record would have to show the
defendant “presented the club, a thing, with knowledge of its falsity.” Id. at 628. However,
the court said, the record showed that it was the defendant’s statement to the police officer
that the club was used in the assault that was false, not the club. Id. The court went on
to say that “[a]n oral statement is not physical evidence.” Id. It concluded that the record
supported a finding the defendant lied to two police officers concerning the assault, but a
rational trier of fact could not have found the essential elements of fabricating physical
evidence. Id.
In the case before us, the State argues the evidence was sufficient to support
appellant’s conviction because it showed he inflicted injuries on himself for the purpose
of using them as evidence of an assault that never occurred. But like the stick in Carrion,
appellant’s injuries, assuming they are to be considered a “thing,” are undisputedly real.
What is false is appellant’s allegation that the staff caused those injuries by assaulting
him. This is like the false statement by the defendant in Carrion that the stick was used
as a club. Carrion, 926 S.W.2d at 626. It is the conveyance of false information, not the
6 making, presenting, or using of physical evidence with knowledge of its falsity that
occurred here.
The court in Rotenberry noted also that the two Penal Code provisions preceding
section 37.09 prohibit conveyance of false information. Rotenberry, 245 S.W.3d at 587
(citing TEX. PENAL CODE ANN. §§ 37.08 (False Report to Peace Officer, Federal Special
Investigator, or Law Enforcement Employee), 37.081 (False Report Regarding Missing
Child or Missing Person)). The court there concluded that “[l]ying to conceal information
material to an investigation is a crime, but it is not a violation of section 37.09.” Id. We
express no opinion on the applicability of other Penal Code provisions to the facts of this
case, but conclude merely that the conveyance of knowingly false information about the
cause of real injuries is not a violation of section 37.09(a)(2). Accordingly, we sustain
appellant’s issue challenging the sufficiency of the evidence to support his conviction.
Conclusion
Having sustained appellant’s issue, we reverse the judgment of the trial court. We
have considered whether reformation of the judgment to reflect a conviction for a lesser-
included offense is called for. See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim.
App. 2014). We see no lesser-included offense as to which the two questions outlined in
Thornton, id. at 300, can be answered in the affirmative. Accordingly, we will issue a
judgment of acquittal.
James T. Campbell Justice
Publish.