Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of October 15, 2007

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

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Rotenberry v. State, No. 02-06-00164-CR (Oct. 18, 2007) (Gardner, J., joined by Livingston, J.; Cayce, C.J., dissents with opinion).: Held: The indictment, which charged Appellant with tampering with or fabricating physical evidence under penal code section 37.09, failed to state an offense. When Appellant's grandmother killed her husband in 1996, Appellant, at his grandmother's direction, put the body in a disused septic tank in his back yard. In 2004, Appellant told police who were investigating the husband's disappearance that he did not know where the husband was. Appellant later told police where to find the body. The grand jury indicted Appellant not for hiding the body (the statute of limitations had already run for that act) but for "concealing physical evidence" when he lied to police concerning the husband's whereabouts. In the context of section 37.09, the word "conceal" does not include the act of lying to police; Appellant's misrepresentation did not tamper with husband's corpse. Therefore, the indictment failed to state an offense under section 37.09, and we must dismiss the indictment and vacate the trial court's judgment of conviction.; Dissent: The majority's interpretation of the word "conceals" fails to give the language of penal code section 37.09 its plain meaning and conflicts with a recent opinion of this court defining “conceals” in a different section of the penal code. When words in a statute are not defined, we generally apply their plain meaning, and nothing in section 37.09 or its caption evidences a legislative intent that "conceals" be defined differently than in other sections of the penal code. In Chase v. State, Nos. 2-06-063-CR, 2-06-064-CR, 2007 WL 866221 (Tex. App.—Fort Worth March 22, 2007, pet. ref'd) (mem. op.) (not designated for publication), we defined "conceals" in penal code section 32.33 as to "keep from the knowledge and observation of others," "refrain from disclosing or divulging," and "hide, secrete, or withhold from the knowledge of others." Using this definition, the evidence showed that Appellant in this case concealed information regarding the location of Cunningham's body.