Tampering with evidence is the charge that turns a small case into a felony. In Harris County it is most often filed not against someone shredding documents, but against someone who dropped, swallowed, or threw something during a traffic stop or a foot chase.
What the Statute Prohibits
A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
- alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or proceeding; or
- 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 proceeding.
A separate subsection makes it an offense to alter, destroy, or conceal a record, document, or thing knowing that an offense has been committed, with intent to impair its availability as evidence — a lower knowledge threshold than "investigation pending."
Penalties
| Conduct | Offense level | Punishment |
|---|---|---|
| Tampering with physical evidence (general) | Third-Degree Felony | 2 – 10 years in prison, up to $10,000 fine |
| The evidence is a human corpse | Second-Degree Felony | 2 – 20 years in prison |
| Failing to report a corpse in certain circumstances | Class A Misdemeanor | Up to 1 year county jail |
The Traffic-Stop Cases
The typical Houston tampering prosecution looks like this: officers approach a car, the driver drops a baggie between the seats, throws it out the window, or swallows it. The underlying possession may be a state jail felony or even a Class B — but the tampering allegation is a third-degree felony, and it frequently becomes the more serious charge.
Tampering requires knowledge that an investigation was pending or in progress. Someone who discards something as a patrol car passes, before any stop, detention, or contact, may not have that knowledge. Body-camera timing — exactly when the lights came on, when the officer made contact, and when the item left the person's hand — decides a great many of these cases.
Defenses
No knowledge of an investigation. As above. The timeline is everything, and the video usually establishes it.
No intent to impair availability. Dropping something in a panic is not the same as concealing it to keep it from officers. Where the item was immediately recovered and remained fully available as evidence, the intent element is weak.
The item was recovered intact. Texas courts have addressed whether conduct that leaves evidence fully usable satisfies the statute. Where officers retrieved the item in seconds, in plain view, the "concealment" theory is vulnerable.
It was not evidence. The thing altered or destroyed must have evidentiary significance to the investigation.
Identity and possession. In multi-occupant vehicles, proving who discarded what is often impossible.
Related
- Houston drug charges · POSS CS PG 1/1-B
- Evading arrest and resisting
- Section 37.10 — Tampering with a Governmental Record
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.