Thurston, George Anthony

• Court: Court of Appeals of Texas
• Decided: March 3, 2015
• Docket: PD-1316-14
• Status: Published

Opinion

PD-1316-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/27/2015 6:49:21 PM Accepted 3/3/2015 7:57:56 AM March 3, 2015 ABEL ACOSTA PD-1316-14 CLERK

! In the Court of Criminal Appeals of Texas

! George Anthony Thurston Petitioner-Appellant, ! v. ! State of Texas Respondent-Appellee, ! ! On Discretionary Review from the Second Court of Appeals Judgment and Opinion in 02-13-00242-CR ! An Appeal of Cause Number 1293819D from the 371st District Court of Tarrant County, Texas !

Petitioner/Appellant’s Initial Brief

(Mr.) Leigh W. Davis 1901 Central Dr. Suite 708 Bedford, Texas 76021 817.868.9500 817.887.2401 (fax) Texas Bar No. 24029505 leighwdavis@gmail.com Oral Argument Requested Identity Of Parties And Counsel ! Parties to the Trial Court’s Judgment ! Defendant George Anthony Thurston ! Prosecution State of Texas (Tarrant County Criminal DA) ! ! Trial Counsel ! Defendant J. Steven Bush Texas Bar No. 03496200 314 Main Street, Suite 200 Fort Worth, Texas 76102 Telephone: 817.878.2770 ! Samuel Terry Texas Bar No. 24042621 314 Main Street, Suite 200 Fort Worth, Texas 76102 Telephone: 817.882.9977 ! State Timothy Bednarz Texas Bar No. 02029039 Kelly Loftus Texas Bar No. 00787916 Assistant District Attorneys 401 West Belknap Fort Worth, Texas 76196-0201 Telephone: 817.884.1400 ! ! !

i Appellate Counsel ! Defendant (Mr.) Leigh W. Davis 1901 Central Drive Suite 708 LB 57 Bedford, Texas 76021 State Bar No. 24029505 Telephone: 817.868.9500 ! State Charles M. Mallin Texas Bar No. 12867400 401 W. Belknap St. Fort Worth, TX 76196 Texas bar no. 21492600 Telephone: 817.884.1400 ! ! Trial Court ! 371st District Court, Tarrant County ! ! Trial Judge ! The Honorable Mollee Westfall

ii Table Of Contents

Identity of Parties and Counsel..............................................................i

Table of Contents ................................................................................iii

Index of Authorities .............................................................................v

Statement of the Case ..........................................................................vi

Statement Regarding Oral Argument.................................................viii

Issues Presented .................................................................................viii

Statement of Facts ................................................................................1

Summary of the Argument ...................................................................4

Argument .............................................................................................5

I. In the context of tampering with evidence, how far does the “im- pending or about to take place” definition of “pending” extend? Is it limited to investigations flowing directly from the defendant’s ac- tions? Or does it extend to situations where the defendant is both temporally and proximately removed from the initiation of the in- vestigation? .....................................................................................5

In the Tampering With Evidence Statute, some courts of appeals have held that “pending” means “impending or about to take place.” ........................................................................................5

In this case, the court of appeals held that the evidence was suffi- cient to show that Thurston knew there would be an investiga- tion and took action to conceal the body. ...................................7

Thurston committed no action in the presence of any investiga- tion; his actions were days removed from the initiation of the in- vestigation and did not directly initiate it. The cases cited by the court of appeals’ opinion are factually distinguishable from this case. ............................................................................................9

iii Other cases illustrate the need for the defendant’s or a third par- ty’s proximity to the investigation for the defendant to tamper with evidence. ...........................................................................11

The court of appeals holding in this case the extended the “im- pending or about to take place” definition of “pending” beyond anything currently found in the Texas jurisprudence. ................12

The court of appeals opinion rewrites the tampering with evi- dence statute. Alternatively, the opinion contravenes the statute because it affirms Thurston’s conviction for actions leading to the investigation. ............................................................................13

Prayer.................................................................................................16

Certificate of Service...........................................................................17

Certificate of Compliance ...................................................................18

! !

iv Index Of Authorities

Cases

Barrow v. State, 241 S.W.3d 919 (Tex. App.—Eastland 2007, pet. ref’d) .................7, 11 ! Briscoe v. State, No. 03-11-00014-CR, 2013 WL 4822878 (Tex. App.—Austin Aug. 29, 2013, no pet.)...............................................................6, 7, 8, 9, 10 ! Lumpkin v. State, 129 S.W.3d 659 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) ........ ....................................................................................6, 7, 8, 9, 10, 11 ! Pannell v. State, 7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref’d) ......................11, 12 ! Lewis v. State, 56 S.W.3d 617 (Tex. App.—Texarkana 2001, no pet.) .......................11 ! ! ! Statutes and Rules ! Tex. Pen. Code § 37.09(a)(1) .....................................................vi, 5, 14 Tex. Pen. Code § 12.42(b) ...................................................................vi ! !

v Statement Of The Case

This was a prosecution for murder and tampering with evidence. The

State alleged that George Thurston killed Walter James Anders and

then hid and later dumped his body.1 The indictment charging tamper-

ing with evidence included two paragraphs. The first paragraph alleged

that Thurston knew a murder had been committed and altered, de-

stroyed, or concealed the body to impair its verity or availability in the

subsequent investigation or proceeding. The second paragraph alleged

that Thurston knew an official investigation or proceeding was pending

or in progress and that he altered, destroyed, or concealed the corpse

to impair its verity or availability in that investigation or proceeding.

Both indictments (the murder charge and the tampering charge were in

separate indictments) included repeat offender notices.2 Because the

tampering with evidence charge alleged tampering with a human

corpse, this offense was a second degree felony.3 The repeat offender

notice raised the range of punishment to first degree range.4

1 CR at 5. 2 Id. 3 Tex. Pen. Code § 37.09(a)(1) & (c). 4 Tex. Pen. Code § 12.42(b).

vi The murder and tampering with evidence cases were consolidated

for trial and were tried on May 6, 2013.5 The jury acquitted Thurston

of murder in Cause No. 1286534 but convicted him of tampering with

evidence in this case.6 The jury handed down an 80 year sentence.7

On the jury’s punishment verdict, the trial court sentenced Thurston

to 80 years confinement entering a judgment to that effect.8 The trial

court certified Thurston’s right to appeal.9 Thurston was again found

indigent, and the trial court appointed counsel for appeal.10 His notice

of appeal was timely.11 On appeal, the court of appeals affirmed and

denied rehearing.

Thurston sought discretionary review on the following question:

In the context of tampering with evidence, how far does the “impending or about to take place” definition of “pending” extend? Is it limited to investigations flowing directly from the defendant’s actions? Or does it extend to situations where the defendant is both temporally and proximately removed from the initiation of the investiga- tion? ! On January 28, 2015, this court granted review on this question. 5 See e.g., RR Vol. 3. 6 CR at 48. 7 CR at 58. 8 CR at 62. 9 CR at 67. 10 CR at 70. 11 CR at 68.

vii Statement Regarding Oral Argument

This Court granted discretionary review but denied oral argument.

Should the Court later decide that oral argument would be helpful,

Thurston would desire to present argument. Thurston believes oral ar-

gument would be beneficial given the unique facts of this case and the

legal issue.

! Issues Presented ! I. In the context of tampering with evidence, how far does the “im- pending or about to take place” definition of “pending” extend? Is it limited to investigations flowing directly from the defendant’s actions? Or does it extend to situations where the defendant is both temporally and proximately removed from the initiation of the investigation? ! ! ! !

viii Statement Of Facts ! By his own admission—he testified—George Thurston shot and killed

Walter James Anders in self-defense. On a Friday morning in May

2012 around 10 a.m., the two went to the liquor store and bought al-

cohol—Anders a bottle of rum; Thurston a six-pack of beer12—and re-

turned to Lisa Juran’s house where Thurston lived13 and Anders helped

with odd jobs.14 This day the job was repairing soffits.15 Thurston had

had three beers16 when he decided it was time to clean the guns17—

something he did every month.18 This was around 3 in the afternoon.19

Thurston had gotten the first gun out and had taken it to a workbench

in the garage but had not yet disassembled it when Anders,20 who’d

downed about a third-of-a-bottle of rum at this point,21 came into the

garage drunk.22 Thurston was upset that Anders was drunk, and they

12 RR 6 at 151. 13 RR 6 at 137. 14 RR 6 at 145. 15 RR 6 at 145. 16 RR 6 at 153. 17 RR 6 at 154. 18 RR 6 at 204. 19 RR 6 at 154. 20 RR 6 at 154–55. 21 RR 6 at 155. 22 RR 6 at 156–57.

1 argued.23 Anders picked up a knife and lunged at Thurston.24 Thurston

fought Anders off heaving him away.25 Anders landed in a pile of milk

crates.26 Anders still had the knife27 and was trying to get up.28

Thurston told him twice, “drop the knife.”29 Anders did not drop it.30

Scared for his life,31 Thurston grabbed the gun from the workbench

and shot him.32 He literally emptied the magazine.33 Bullets hit Anders

in the feet, hands, thighs, and chest.34 Anders was shot, 12 times in all,

and died.35

Thurston put the pistol in a desk drawer.36 He walked out to the

front porch, sat down with a beer, and rolled a couple of cigarettes “to

think of what best to do.”37 After a while, he drove to the store,

23 RR 6 at 157–58. 24 RR 6 at 158–59. 25 RR 6 at 158. 26 RR 6 at 159. 27 RR 6 at 159. 28 RR 6 at 159. 29 RR 6 at 159. 30 RR 6 at 159. 31 RR 6 at 160. 32 RR 6 at 159. 33 RR 6 at 160. 34 RR 6 at 195–96. 35 RR 6 at 160, 164. 36 RR 6 at 164. 37 RR 6 at 165.

2 bought more beer and tobacco, and “drove around a little bit.”38 Lisa

Juran, the home’s owner, wasn’t going to be back until late that

evening.39

After a while, Thurston realized that no one must have heard the

shots since the police never showed up.40 He thought about calling the

police himself but wanted to talk to Juran first.41 It got late, and he

went inside, turned on the television, and fell asleep on the couch.42

The next morning, he returned to the garage, stuffed the body into a

sleeping bag, wrapped the sleeping bag with a blue tarp, tied that with

a rope, and stuffed the whole mess under a workbench.43

It was May in Texas, and the body quickly started decomposing. To

combat the smell, Thurston placed air fresheners and splashed some

bleach around the garage.44 When Juran noticed and asked about the

smell, Thurston told her an animal must have died in the garage.45

38 RR 6 at 165. 39 RR 6 at 166. 40 RR 6 at 166. 41 RR 6 at 166. 42 RR 6 at 167. 43 RR 6 at 170–72. 44 E.g., RR 5 at 36–37, 64–65, 175. 45 RR 6 at 174.

3 The next night, Thurston told Juran he had shot Anders.46 This up-

set her,47 but she helped him load the tarp-wrapped body into the back

of his pickup truck.48 The next night, May 27th, Thurston dumped the

body near some railroad tracks close to Juran’ house.49

On May 30, 2012, railroad workers found the body.50 They imme-

diately called police, who began an investigation.51

! Summary Of The Argument ! This Court should find that the court of appeals extended the “impend-

ing or about to take place” definition of “pending.” Here, no investiga-

tion was under way. Moreover, Thurston took no action in the pres-

ence of or in proximity to anyone who would investigate or cause an

investigation to begin. He was temporally and proximately removed

from the initiation of the investigation: Anders had been dead for two

days before Thurston moved his body; the investigation did not com-

46 RR 6 at 169. 47 RR 6 at 169. 48 RR 6 at 173. 49RR 6 at 176. There’s actually some disagreement about which night Thurston dumped the body. According to him it was Sunday, May 27th. According to railroad workers it was likely Monday, May 28th, which was the day a pickup truck matching Thurston’s was spotted near the area where the body was found. Thurston maintains it couldn’t have been May 28th because he and Ms. Juran were out of town. In any event, it was at least two days after Thurston’s dumping of the body that it was found. 50 RR 4 at 52. 51 RR 4 at 69, 165.

4 mence for two days after Thurston moved Anders’s body; the investiga-

tion only commenced when railroad workers found Anders’s body and

called police. This court of appeals opinion allows a defendant to be

convicted of tampering with evidence merely because an investigation

was later commenced or because the defendant’s actions led to the dis-

covery of the evidence.

! Argument ! I. In the context of tampering with evidence, how far does the “im- pending or about to take place” definition of “pending” extend? Is it limited to investigations flowing directly from the defendant’s actions? Or does it extend to situations where the defendant is both temporally and proximately removed from the initiation of the investigation?

! In the Tampering With Evidence Statute, some courts of appeals have held that “pending” means “impending or about to take place.”

Texas Penal Code section 37.09(a)(1) provides as follows: “(a) A per-

son commits an offense if, knowing that an investigation or official

proceeding is pending or in progress, he: (1) alters, destroys, or con-

ceals any record, document, or thing with intent to impair its verity,

legibility, or availability as evidence in the investigation or official pro-

ceeding[.]”52 Some courts of appeals, including the Fort Worth Court

52 Tex. Pen. Code § 37.09(a)(1).

5 of Appeals in this case, have extended the definition of “pending” to

include “impending or about to take place.”53

The genesis of the “impending or about to take place” extension of

section 37.09’s “pending” appears to be Lumpkin v. State.54 There, the

First Court of Appeals considered the difference, if any, between

“pending” and “in progress in the tampering evidence.55 The court

noted that the definitions of “pending” and “in progress” appeared to

be synonymous.56 Therefore, to give every word in the statute effect

and to avoid redundancy, the court continued on to the second defini-

tion of “pending.”57 Relying on a single dictionary’s definition and

statutes from seven states,58 the First Court of Appeals held “that the

term ‘pending’ in the Texas tampering-with-evidence statute means

‘impending, or about to take place.’”59

53Slip Op. at 2 (citing Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d); Briscoe v. State, No. 03-11-00014-CR, 2013 WL 4822878, at *7 (Tex. App.—Austin Aug. 9, 2013, no pet.) (mem. op., not designated for publication). 54 129 S.W.3d 659 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). 55 Id. at 663. 56 Id. 57 Id. 58More specifically, these: Random House Webster's Unabridged Dictionary (2d ed. 2001); Model Penal Code § 241.7; Colo. Rev. Stat. Ann. § 18–8–610 (West 2003); D.C.- Code Ann. § 22– 723 (2001); Fla. Stat. Ann. § 918.13 (West 2003); Ky. Rev. Stat. Ann. § 524.100 (Banks–Baldwin 2003); Mont. Code Ann. § 45–7–207 (2002); Ohio Rev. Code Ann. § 2921.12 (West 2003); Utah Code Ann. § 76–8–510.5 (2003). See Lumpkin, 129 S.W.3d At 663. 59 Id.

6 In 2007, the Eastland Court of Appeals, citing Lumpkin, embraced

this definition in Barrow v. State.60 In 2013, the Austin Court of Ap-

peals, citing both Lumpkin and Barrow, embraced this definition in

Briscoe v. State.61 Now, in this case, the Fort Worth Court of Appeals,

citing Lumpkin and Briscoe, adopted this definition: “He does not

challenge that ‘pending’ means ‘impending or about to take place.’”62

! In this case, the court of appeals held that the evidence was sufficient to show that Thurston knew there would be an investigation and took ac- tion to conceal the body.

On appeal, Thurston challenged the sufficiency of the evidence sup-

porting his tampering with evidence conviction. More specifically, he

contended that an investigation was not pending or in progress when

he dumped Anders’s body near the railroad tracks. The dumping of

Anders’s body was Thurston’s last action with it. The official investiga-

tion, which was initiated by the railroad workers’ 911 call, did not

start for at least two days afterward.

The court of appeals found the evidence supporting the conviction

sufficient based on its construction of “pending.” In affirming, it reject-

60 Barrow v. State, 241 SW 3d 919, 923 (Tex. App.—Eastland 2007, no pet.). 61 No. 03-11-00014-CR, 2013 WL 4822878 (Tex. App.—Austin Aug. 29, 2013, no pet.) 62 Slip Op. at 2.

7 ed Thurston’s argument and affirmed because “pending” meaning

“impending or about to take place”:

In part of his single issue, Thurston argues that the evi- dence is insufficient to support his conviction under this paragraph because there is no evidence that he knew an in- vestigation was pending or in progress when he dumped the corpse at least two days before the police began inves- tigating. He does not challenge that ‘pending’ means ‘im- pending or about to take place.’63 ! The court cited Lumpkin v. State64 and Briscoe v. State.65 Ultimately,

the opinion held as follows:

[T]he jury could have rationally found beyond a reasonable doubt that Thurston knew there would be an investigation after he killed the deceased and took actions to conceal the body with intent to impair its verity or availability as evi- dence in that investigation. Particularly, the jury could have relied on Thurston’s testimony about his actions be- tween May 25 and June 20, in addition to the extensive ev- idence regarding the corpse’s discovery, the state of the corpse upon its discovery, and the subsequent investiga- tion.66 ! !

63 Slip Op. at 2 (citations and footnotes omitted). 64 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). 65No. 03-11-00014-CR, 2013 WL 4822878, at *7 (Tex. App.—Austin Aug. 29, 2013, no pet.). 66 Slip Op. at 6.

8 Thurston committed no action in the presence of any investigation; his actions were days removed from the initiation of the investigation and did not directly initiate it. The cases cited by the court of appeals’ opin- ion are factually distinguishable from this case.

The court of appeals opinion relied on Lumpkin v. State67 and Briscoe

v. State.68 In Lumpkin, the defendant was stopped for speeding by a

Harris County Sheriff’s deputy.69 As the deputy approached the car,

Lumpkin swallowed cocaine.70 Lumpkin swallowed the cocaine in the

presence of the deputy who saw him “ingesting some white substance

and then was consuming it down with a cup of what [he] thought at

the time was liquid.”71

In Briscoe, the defendant enjoyed rough sex with prostitutes—espe-

cially choking them during intercourse. Briscoe hired a prostitute, Amy

Dickey.72 Dickey worked with a driver who took her to Briscoe’s

apartment complex.73 When she reached Briscoe’s apartment, she

called her driver to report the apartment number she would be in.74

67 129 S.W.3d 659, 663 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). 68No. 03-11-00014-CR, 2013 WL 4822878, at *7 (Tex. App.—Austin Aug. 29, 2013, no pet.). 69 Lumpkin, 129 S.W.3d at 661. 70 Id. 71 Id. 72 Briscoe, 2013 WL 4822878 at *1. 73 Id. 74 Id.

9 There, Briscoe and Dickey had intercourse.75 Briscoe admitted that he

choked her for five minutes killing her.76 Briscoe moved and hid the

body while Dickey’s driver waited for her.77 The court held that the

presence of Dickey’s driver meant that Briscoe “was aware Dickey’s

driver was waiting outside for her and would notice that she was miss-

ing, thus triggering an investigation into her disappearance.”78

In both Lumpkin and Briscoe, the defendants committed their of-

fenses in the presence or proximity of another individual—in Lump-

kin, the Harris County Sheriff’s deputy; in Briscoe, the prostitute’s dri-

ver. The courts reasoned that these persons would immediately investi-

gate or cause to be investigated the crime for which the evidence was

tampered. Here, there was no such person. Thurston did not act in the

presence of a law enforcement officer investigating any offense much

less an offense involving Anders’s body. Thurston did not act in prox-

imity to anyone who would have cause to report an offense—any of-

fense. Instead, he merely moved Anders’s body two days after he was

killed to the place where it was discovered a couple of days after being

moved.

75 Id. 76 Id. 77 Id. at *7. 78 Id.

10 ! Other cases illustrate the need for the defendant’s or a third party’s proximity to the investigation for the defendant to tamper with evi- dence.

The cases cited by both sides in Lumpkin illustrate this. In Lumpkin,

the State cited Lewis v. State79 while the defense cited Pannell v. State.80

Though cited by opposing parties, both cases illustrate this principle.

In Lewis, the defendant attempted—mostly successfully—to eat a

baggy of cocaine after being stopped by the police for an improperly

positioned dealer tag.81 When the officer removed the defendant from

the car for officer safety, he saw him eating the baggy of cocaine.82 The

defendant refused the officer’s commands to spit the bag out.83 His

conviction for tampering with evidence was affirmed.84

Conversely, if the investigation pertaining to the tampered with evi-

dence has not commenced, the defendant cannot be guilty of evidence

79 56 S.W.3d 617 (Tex. App.—Texarkana 2001, no pet.). 80 7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref’d) 81 Lewis, 56 S.W.3d at 618–19. 82 Id. at 619. 83 Id. 84Id. at 625. The same was true in Barrow v. State, 241 S.W.3d 919 (Tex. App.— Eastland 2007, pet. ref’d). There, the officer was conducting surveillance on a sus- pected drug trafficking location. Id. at 920–21. After witnessing a possible nar- cotics transaction, the officer stopped the defendant. Id. When stopped, the defen- dant had an off-white, rock-like substance in his mouth. Id. Instead of spitting it out as commanded by the officer so that the substance could be recovered and the controlled substance offense investigated, the defendant swallowed it. Id.

11 tampering. In Pannell, when the police officer was attempting to make

a traffic stop, Pannell threw marijuana and a lit joint out his car win-

dow.85 The conviction was reversed because the investigation at the

time the defendant threw the pot out the window was limited to a traf-

fic violation not a marijuana offense.86

! The court of appeals holding in this case the extended the “impending or about to take place” definition of “pending” beyond anything cur- rently found in the Texas jurisprudence.

The court of appeals extended the construction of “impending or

about to take place” definition of “pending” beyond existing Texas ju-

risprudence. No investigation was “impending or about to take place”

when Thurston moved the body. Thurston didn’t tamper with any evi-

dence in the presence of a law enforcement officer—much less one in-

vestigating a crime. And unlike Briscoe, there was no other individual

present when Anders died. Anders had already been dead for a couple

of days when his body was moved and a couple more before his body

was found and the investigation commenced.

Thurston is removed from the initiation of the investigation both

temporally and proximately. His moving Anders’s body was two days

85 Pannell, 7 S.W.3d at 223. 86 Id. at 224.

12 after Anders’s death and two days before any law enforcement in-

volvement. His moving Anders’s body ultimately led to its discovery—

but only indirectly. Railroad workers found it and called 911, which

triggered the investigation. The holding in this case is a holding under

which there’s no practical limit to “impending or about to take place.”

At a minimum, “impending or about to take place” is now days re-

moved from the underlying actions and days before any investigation.

! The court of appeals opinion rewrites the tampering with evidence statute. Alternatively, the opinion contravenes the statute because it af- firms Thurston’s conviction for actions leading to the investigation.

The court of appeals opinion appears to have affirmed, at least in part,

based on the subsequent investigation:

[T]he jury could have rationally found beyond a reasonable doubt that Thurston knew there would be an investigation after he killed the deceased and took actions to conceal the body with intent to impair its verity or availability as evi- dence in that investigation. Particularly, the jury could have relied on Thurston’s testimony about his actions be- tween May 25 and June 20, in addition to the extensive ev- idence regarding the corpse’s discovery, the state of the corpse upon its discovery, and the subsequent investiga- tion.87 ! The court of appeals affirmed because there was a subsequent investi-

gation? Thurston knew that an investigation was pending because one

87 Slip Op. at 6 (emphasis added).

13 occurred in the future? That is tantamount to rewriting 37.09(a)88 to

read “if, an investigation or official proceeding might or actually does

occur at some point in the future, ….”

Alternatively, this opinion affirmed Thurston’s conviction for tam-

pering with evidence when his actions actually led to the discovery of

the body, which led to the investigation. At its outset, the opinion casts

Thurston’s issue thusly: “Thurston argues that the evidence is insuffi-

cient to support his conviction under this paragraph because there is no

evidence that he knew an investigation was pending or in progress

when he dumped the corpse at least two days before the police began

investigating.”89 The opinion affirms, at least in part, based on

“Thurston’s testimony about his actions between May 25 and June 20,

in addition to the extensive evidence regarding the corpse’s discovery,

the state of the corpse upon its discovery[.]” This ignores that

Thurston’s moving the body—ostensibly the tampering act—led to its

discovery. Moreover, it ignores Thurston’s desire that the body be

88Texas Penal Code section 37.09(a)(1): “(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 im- pair its verity, legibility, or availability as evidence in the investigation or official proceeding[.]” 89 Slip Op. at 2.

14 found.90 Section 37.09(a) criminalizes impairing evidence. Thurston’s

moving the body did not impair it; it made the body available. Thus,

the opinion affirms on a basis not a violation of the statute.

! ! !

90RR 6 at 176 (“I took him down there by the tracks where they would find him, somebody would find him, railroad tracks, driving by, somebody might drive by and see him, you know.”).

15 Prayer

Petitioner/Appellant respectfully prays that this Court will reverse the

judgment of the court of appeals and find that no investigation was

“impending or about to take place” when Thurston moved Anders’s

body thereby making the evidence insufficient to support Thurston’s

conviction in this case.

! ! Respectfully submitted, ! /s/ Leigh W. Davis__________ (Mr.) Leigh W. Davis 1901 Central Dr. Suite 708 Bedford, Texas 76021 817.868.9500 817.887.2401 (fax) Texas Bar No. 24029505 leighwdavis@gmail.com ! !

16 Certificate Of Service

I hereby certify that a copy of this brief has been served on the follow-

ing persons or parties on February 27, 2015:

Appellate Division Tarrant County Criminal District Attorney’s Office 401 W. Belknap Fort Worth, Texas 76102 coaappellatealerts@tarrantcounty.com ! Lisa C. McMinn State Prosecuting Attorney P.O. Box 13046 Capitol Station Austin, Texas 78711 lisa.mcminn@spa.texas.gov ! ! ! s/ Leigh W. Davis______________ (Mr.) Leigh W. Davis ! ! !

17 Certificate Of Compliance ! This document complies with the typeface requirements of Tex. R.

App. P. 9.4(e) because it has been prepared in a conventional typeface

no smaller than 14-point for text and 12-point for footnotes. This doc-

ument also complies with the word-count limitations of Tex. R. App. P.

9.4(i), if applicable, because it contains 4,496 words, excluding any

parts exempted by Tex. R. App. P. 9.4(i)(1).

! ! s/ Leigh W. Davis_____________ (Mr.) Leigh W. Davis !