Opinion filed April 15, 2021

In The

Eleventh Court of Appeals 

__________

No. 11-19-00125-CR 

__________

JAMAI NICOLE BARRON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 132nd District Court

Scurry County, Texas

Trial Court Cause No. 10597

O P I N I O N

The jury convicted Appellant, Jamai Nicole Barron, of the second-degree 

felony offense of tampering with physical evidence, namely human corpses. See

TEX. PENAL CODE ANN. § 37.09(c), (d)(1) (West 2016). The jury assessed 

Appellant’s punishment at confinement in the Institutional Division of the Texas 

Department of Criminal Justice for a term of ten years. Appellant’s sentence of 
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confinement was suspended, and Appellant was placed on community supervision 

for ten years. The jury also assessed a fine of $10,000.

In four issues on appeal, Appellant asserts (1) that the trial court committed 

cumulative error in declaring Appellant’s justification defense irrelevant and 

preventing Appellant from arguing self-defense and presenting evidence of 

justification defenses throughout the case, (2) that the evidence is legally insufficient 

to support the verdict, (3) that the trial court erred in omitting a jury charge 

instruction on the lesser included offense of attempted tampering, and (4) that the 

trial court erred in omitting from the court’s charge jury instructions as well as 

application paragraphs on Appellant’s justification defenses. We first address 

Appellant’s sufficiency-of-the-evidence issue, then Appellant’s cumulative-error 

and justification issues, then Appellant’s issue related to the lesser included offense 

of attempted tampering. We affirm. 

Background Facts

Around 10:00 p.m. one night, Appellant began drinking, smoking marihuana, 

and using cocaine with her boyfriend Juan Ramon Barron and one other friend. 

Around 4:00 a.m., Appellant and Juan heard a knock at the back door. Juan grabbed

a knife before answering the door, as they were not expecting company. Two men 

dressed in all black and wearing ski masks were at the door. Juan rushed toward 

them, yelling, “You ain’t going to rob me . . . .” A fight ensued between Juan and 

the two men. Appellant grabbed two knives and joined Juan in the fight. Juan

repeatedly stabbed one of the men—who was holding a gun—in the neck, face, and 

“anywhere [he] could reach.” Juan took the gun from him, turned around to the 

other man fighting with Appellant, and “shot the guy until [Juan] thought he was 

dead.”

Both Juan and Appellant were still intoxicated during these events and began 

to panic. They decided to drag the corpses to the side of the trailer, pull back the 
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skirt from the bottom of the trailer, and stuff the bodies under the trailer. They placed

the skirt back on the trailer and cleaned the trailer and yard with bleach and water. 

Juan dug up the areas of dirt that were covered in blood, placed the blood-soaked 

dirt along with his bloody clothes in blankets, and hid them behind a shed. Juan

wrapped the gun in a paper towel and placed the gun, along with the shell casings,

in a pizza box on the kitchen table. After sobering up, Appellant and Juan decided 

to “turn[] [themselves] in” and went to the police station to inform the police of what

had occurred. Appellant was then arrested and charged with tampering with physical 

evidence. The jury convicted Appellant, and this appeal followed.

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Analysis

I. Sufficiency of the Evidence

In her second issue on appeal, Appellant contends that the evidence is 

insufficient to prove beyond a reasonable doubt that Appellant actually completed

the act of tampering with evidence. We review a challenge to the sufficiency of the 

evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 

(1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 

337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson

standard, we review all of the evidence in the light most favorable to the verdict and 

determine whether any rational trier of fact could have found the essential elements 

of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 

330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

When conducting a sufficiency review, we consider all of the evidence 

admitted at trial, including pieces of evidence that may have been improperly 

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In a separate trial, Juan Ramon Barron was convicted of murder arising from the same criminal 

episode. We recently affirmed his murder conviction. See Barron v. State, No. 11-18-00324-CR, 2021 

WL 747698 (Tex. App.—Eastland Feb. 26, 2021, pet. filed). Juan was also tried and convicted of tampering 

with physical evidence. We are issuing an opinion in Cause No. 11-19-00128-CR that also affirms his 

conviction for tampering with physical evidence. 
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admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. 

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s 

role as the sole judge of the witnesses’ credibility and the weight their testimony is 

to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the 

factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 

319; Clayton, 235 S.W.3d at 778.

It is not necessary that the evidence directly prove the defendant’s guilt; 

circumstantial evidence is as probative as direct evidence in establishing a 

defendant’s guilt, and circumstantial evidence can alone be sufficient to establish 

guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing 

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not 

point directly and independently to guilt if the cumulative force of all incriminating 

circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.

A person commits the offense of tampering with evidence if, “knowing that 

an offense has been committed, [the person] alters, destroys, or conceals any . . .

thing with intent to impair its . . . availability as evidence in any subsequent 

investigation of or official proceeding related to the offense.” PENAL § 37.09(d)(1). 

This statute requires proof of three elements: the defendant (1) knew an offense was 

committed; (2) concealed, altered, or destroyed a thing; and (3) intended to impair 

the availability of that thing as evidence in any subsequent investigation or official 

proceeding related to the offense. Stahmann v. State, 602 S.W.3d 573, 576 (Tex. 

Crim. App. 2020).

A person has knowledge of the commission of a murder where that person is 

aware at the time of his alleged acts that someone intentionally or knowingly caused 

the death of another individual. See PENAL § 19.02(b)(1) (West 2019); Hall v. State, 

283 S.W.3d 137, 159 (Tex. App.—Austin 2009, pet. ref’d).
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Proof of actual concealment “requires a showing that the allegedly concealed 

item was hidden, removed from sight or notice, or kept from discovery or 

observation.” Stahmann, 602 S.W.3d at 581 (quoting Stahmann v. State, 548 S.W.3d 

46, 57 (Tex. App.—Corpus Christi–Edinburg 2018), aff’d, 602 S.W.3d 573 (Tex. 

Crim. App. 2020)); see also Rotenberry v. State, 245 S.W.3d 583, 586 (Tex. App.—

Fort Worth 2007, pet. ref’d) (noting in dicta that “[the defendant] concealed physical 

evidence—[the victim’s] body—when [the defendant] hid the body in the septic 

tank”).

A person acts with the intention to impair the availability of the evidence in a 

subsequent investigation or proceeding related to the offense when it is the person’s 

conscious objective or desire to impair the availability of the evidence. See PENAL

§ 6.03(a) (West 2011). The focus of this element is only whether Appellant intended

to impair the availability of the thing by concealing it; it is not an element of the 

offense that concealment actually impair the evidence’s availability. See PENAL

§ 37.09(d)(1); Carnley v. State, 366 S.W.3d 830, 835 (Tex. App.—Fort Worth 2012, 

pet. ref’d); Lewis v. State, 56 S.W.3d 617, 625 (Tex. App.—Texarkana 2001, no 

pet.).

Here, the record demonstrates that Appellant was aware that Juan stabbed one 

man repeatedly in the face and neck, grabbed the gun from him, and “shot the [other] 

guy until [Juan] thought he was dead.” When Appellant subsequently talked to 

police, she stated that she and Juan “had done something bad” because “someone 

broke into their house and that [Appellant and Juan] had killed them.” Appellant 

expressly admitted to police that they dragged the corpses by their feet to the side of 

the trailer, removed the skirting from the trailer, “stuffed them under the house,”

placed the skirt back on the trailer, and proceeded to clean up the trailer and yard 

with bleach and water. Juan also dug up the areas of dirt that were covered in blood, 

placed the blood-soaked dirt and their bloody clothes in blankets, and hid the 
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blankets along with drugs behind a shed. Appellant admitted to seeing Juan wrap

the gun in a paper towel and place the gun, along with the shell casings, in a pizza 

box on the kitchen table.

Viewing the evidence in the light most favorable to the verdict, we conclude

that sufficient evidence exists to prove beyond a reasonable doubt that Appellant 

was aware that a murder had been committed, that she actually concealed the 

corpses, and that she did so intending to impair the availability of the corpses as 

evidence in a subsequent investigation or proceeding related to the underlying 

offense.

Appellant also asserts the law of justification and renunciation as defenses to 

her conduct. For reasons discussed in the remainder of this opinion, neither the law 

of justification nor renunciation applies to a charge of tampering with evidence under 

these facts. We overrule Appellant’s second issue.

II. Justification Defense

In her first issue on appeal, Appellant contends that the trial court committed 

cumulative error in declaring Appellant’s justification defenses irrelevant and in 

preventing Appellant from presenting evidence of justification defenses throughout 

the trial. The indictment read, in relevant part, that Appellant “did then and there, 

knowing that an offense had been committed, to-wit: murder, intentionally or 

knowingly alter or conceal human corpses . . . with intent to impair their availability 

as evidence in any subsequent investigation or official proceeding related to the 

offense.” Appellant asserts that, given the manner in which the State indicted 

Appellant, murder was a required element in the State’s proof and, thus, justification 

defenses were clearly relevant to the case. We disagree.

The doctrine of cumulative error provides that the cumulative effect of several

errors can, in the aggregate, constitute reversible error, even though each individual 

error may be harmless. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim.
7

App. 1999). However, the doctrine only applies if the alleged errors complained of

actually constitute error. Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App.

2009).

As we previously noted, one element of tampering with evidence under 

subsection (d)(1) requires that the defendant know about the commission of an 

offense. See PENAL § 37.09(d)(1); Stahmann, 602 S.W.3d at 576. Appellant’s 

defensive posture throughout trial—as well as her posture on appeal—appears to be

that, because the indictment used the word “murder” rather than “offense” and 

because Appellant believed Juan’s conduct of intentionally or knowingly killing the 

two intruders was justified, Appellant did not know that a “murder” had been 

committed.

At the outset, we note that justification defenses only apply to conduct for 

which the defendant is currently being prosecuted. See PENAL § 9.02 (“It is a defense 

to prosecution that the conduct in question is justified under this chapter.” (emphasis 

added)). Here, although the indictment expressly defines the underlying offense as

murder, the State, in the case currently before this court, was not prosecuting 

Appellant for murder; Appellant was only being prosecuted for the offense of 

tampering with evidence. As a matter of law, self-defense does not change the nature 

of the underlying conduct—murder. Rather, it is a defense to prosecution for the 

underlying conduct of murder. Because Appellant’s justification defenses do not 

apply to excuse the conduct in question—tampering with evidence, justification 

defenses are wholly irrelevant in this case. See id.

Further, that the underlying offense may be justified is of no consequence in 

determining whether a defendant had knowledge of its commission. Justification 

defenses are based on the common law doctrine of confession and avoidance. See 

Juarez v. State, 308 S.W.3d 398, 401–04 (Tex. Crim. App. 2010). A justification 

defense only excuses culpability to what would otherwise constitute punishable 
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conduct; it is not something that negates the elements of the underlying offense or

transforms the underlying conduct so that it no longer constitutes an offense. See 

id.; Crayton v. State, No. 03-14-00570-CR, 2016 WL 6068250, at *9 (Tex. App.—

Austin Oct. 14, 2016, pet. ref’d) (mem. op., not designated for publication) (“Thus, 

the jury’s decision to acquit appellant of murder based on self-defense does not mean 

that the murder did not occur; it means only that appellant claimed, and the jury 

decided, that the murder was justified.”); see also Stahmann, 548 S.W.3d at 63

(holding Section 37.09(d)(1) “requires a showing that the defendant have knowledge 

that an ‘offense’ occurred[;] it does not require that the ‘offense’ be committed by 

the defendant”).

In the instant case, the underlying offense was murder. Section 19.02(b)(1) 

clearly states: “A person commits an offense if he . . . intentionally or knowingly 

causes the death of an individual[.]” PENAL § 19.02(b)(1) (emphasis added). 

Nowhere in Section 19.02 does it require the defendant’s conduct to be unjustified 

in order to constitute the commission of the offense. See id. Had the legislature 

intended for justification defenses to negate the commission of the offense of 

murder, it could have easily stated: “A person commits an offense if he . . . 

intentionally or knowingly causes the death of an individual, and the death was not 

otherwise justified.” However, it did not include such language, “and it is not for us 

to add or subtract to that which the Legislature has expressed.” Parfait v. State, 120 

S.W.3d 348, 350 (Tex. Crim. App. 2003).

From the plain language of the statute, then, so long as Appellant knew that 

she or someone else intentionally or knowingly caused the death of another 

individual, then Appellant knew about the commission of a murder. See PENAL

§ 19.02(b)(1). Whether Appellant believed that she would not be subsequently 

prosecuted and convicted for the offense of murder because such conduct was 

justified is immaterial to a determination of whether Appellant knew a murder was 
9

committed. See id. §§ 19.02(b)(1), 37.09(d)(1); Juarez, 308 S.W.3d at 401–04; 

Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007); Crayton, 2016 WL 

6068250, at *9–10; Hall v. State, 283 S.W.3d 137, 159 (Tex. App.—Austin 2009, 

pet. ref’d). It is also immaterial to altering the evidence thereafter. For these reasons, 

justification defenses are wholly irrelevant to the charged offense of tampering with 

physical evidence. The introduction of this legal concept in conjunction with the 

charge of tampering with physical evidence would unnecessarily risk confusing the 

jury in determining the outcome of this case. We hold that the trial court did not 

commit error—cumulative or otherwise—in preventing Appellant from asserting 

justification defenses. We overrule Appellant’s first issue.

As to Appellant’s fourth issue, for the reasons stated above, the trial court did 

not err in omitting from the court’s charge a jury instruction on justification defenses

and did not err in omitting a paragraph from the court’s charge on the application of 

justification defenses to the facts of this case. See Shaw, 243 S.W.3d at 658; 

Hutcheson v. State, 899 S.W.2d 39, 42 (Tex. App.—Amarillo 1995, pet. ref’d) (“[A

defendant] is not entitled to an instruction which is not raised by the evidence.”). 

We overrule Appellant’s fourth issue.

III. Criminal Attempt and Renunciation

In her third issue, Appellant contends that she was entitled to an instruction 

and application paragraph within the charge on the lesser included offense of 

attempted tampering with evidence and that she was therefore, under the terms of 

Section 15.04(a), entitled to raise the affirmative defense of renunciation. 

Consequently, she also asserts that she was entitled to an instruction and application 

paragraph within the charge on renunciation. This is a house of cards that stands or 

falls on whether a jury could reasonably have found her conduct to constitute only

attempted tampering with evidence, not a completed commission of the crime of 

tampering with evidence.
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During the charge conference, Appellant requested that language from 

Sections 15.01 and 15.04 of the Penal Code be added to the charge. See PENAL

§ 15.01 (criminal attempt), § 15.04 (renunciation defense). The trial court denied 

her request, stating that criminal attempt is not a lesser included offense and that,

“even if it was, attempt is not involved in -- is not in this case.” Appellant grasps 

onto the last portion of Section 15.04(a) of the Penal Code, asserting that her conduct 

of confessing to the police and revealing the location of the bodies before the police 

began a search for the evidence—or even knew that a crime had been committed—

constitutes effective renunciation per the statute even “if abandonment was 

insufficient to avoid commission of the offense, by taking further affirmative action 

that prevented the commission.” Id. § 15.04(a) (emphasis added). We disagree; 

renunciation is inapplicable under these facts, and Appellant was not entitled to an 

instruction and application paragraph in the court’s charge on attempted tampering 

with physical evidence or renunciation.

We apply a two-step analysis to determine whether a defendant is entitled to 

the inclusion of a lesser included offense in the jury charge. Safian v. State, 543 

S.W.3d 216, 219 (Tex. Crim. App. 2018); Rice v. State, 333 S.W.3d 140, 144 (Tex. 

Crim. App. 2011). First, we must determine whether the lesser offense is actually a 

lesser included offense of the offense charged as defined by Article 37.09 of the 

Texas Code of Criminal Procedure. Rice, 333 S.W.3d at 144 (citing TEX. CODE 

CRIM. PROC. ANN. art. 37.09 (West 2006)). Article 37.09(4) states: “An offense is a 

lesser included offense if . . . it consists of an attempt to commit the offense charged 

. . . .” CRIM. PROC. art. 37.09(4). Therefore, because Appellant was charged with 

completed tampering with evidence, attempted tampering with evidence is properly 

considered a lesser included offense under these facts.

The second and final step in the analysis is to determine whether the record 

contains some evidence that would permit a rational jury to find that the defendant 
11

is guilty only of the lesser included offense. Safian, 543 S.W.3d at 220; Rice, 333

S.W.3d at 145. In other words, there must be more than a scintilla of evidence from 

which a rational jury could acquit Appellant of tampering with evidence while 

convicting her of the lesser included offense of attempted tampering with evidence. 

See Safian, 543 S.W.3d at 220. In making this decision, this court evaluates the 

evidence in the context of the entire record, but we do not consider whether the 

evidence is credible, controverted, or in conflict with other evidence. See 

Ritcherson v. State, 568 S.W.3d 667, 671 (Tex. Crim. App. 2018). Nevertheless, the 

evidence cannot be speculative; it must consist of affirmative evidence that both 

raises the lesser included offense and rebuts or negates an element of the greater 

offense. Wortham v. State, 412 S.W.3d 552, 558 (Tex. Crim. App. 2013); see 

Ransier v. State, 594 S.W.3d 1, 8–9 (Tex. App.—Houston [14th Dist.] 2019, pet. 

granted).

In the instant case, it is important to note that the record is devoid of any 

evidence that tends to negate any essential element of the object offense of tampering 

with evidence—notwithstanding Appellant’s improper attempt to use justification 

defenses to negate knowledge of the commission of an offense. Instead, Appellant 

solely contends on appeal that a jury could only find her guilty of attempted 

tampering because informing the police of the bodies and their location constituted 

a valid renunciation. Accordingly, whether the second prong is satisfied depends 

upon the applicability of a renunciation defense under these facts. We hold that 

renunciation does not apply; it is inconsequential that Appellant subsequently 

informed the police of the location of the bodies after they had been removed from 

their original locations and hidden under the trailer.

By the plain terms of Section 15.04, the affirmative defense of renunciation 

only applies to the offenses of criminal attempt, conspiracy, and solicitation. PENAL 

§ 15.04. Section 15.04(a)–(d) lists Sections 15.01, 15.02, and 15.03 as conditioned 
12

offenses in Section 15.04’s application. Id. These are inchoate offenses intended to 

effect another underlying offense—in this case, the underlying offense at issue is 

tampering with physical evidence. See id. A renunciation defense under Section 

15.04(a) expressly limits its scope to criminal attempts. Id. § 15.04(a). “Criminal 

attempt” requires an affirmative act that constitutes more than “mere preparation” 

that “tends but fails to effect the commission of the offense intended.” Id. § 15.01(a). 

“There is necessarily a gray area between conduct that is clearly no more than mere 

preparation and conduct that constitutes the last proximate act prior to actual 

commission of the offense.” Brooks v. State, 604 S.W.3d 239, 250 (Tex. App.—

Austin 2020, pet. granted) (quoting Come v. State, 82 S.W.3d 486, 489 (Tex. App.—

Austin 2002, no pet.)). Where in this gray area the conduct falls must be determined 

on a case-by-case basis. See id.; see also Gibbons v. State, 634 S.W.2d 700, 706–

07 (Tex. Crim. App. 1982).

Under Section 15.04(a), an actor engaging in a criminal attempt may abandon 

her criminal conduct at any time before performing the last proximate act tending to 

effect the commission of the object offense. PENAL § 15.04(a); Thomas v. State, 708 

S.W.2d 861, 863 (Tex. Crim. App. 1986). Even then, the defense is allowed where 

the last proximate act has occurred but the criminal result can still be avoided by 

taking further affirmative acts to prevent its commission, “as for example when the 

fuse has been lit but can still be stamped out.” Thomas, 708 S.W.2d at 863 (quoting 

former MODEL PENAL CODE § 5.01, at p. 360 (1985)). However, where the actor has 

performed the last act necessary to constitute a complete commission of the object 

offense, or where the actor has otherwise “put in motion forces that he is powerless 

to stop,” there can be no renunciation of the criminal conduct. See id.

There must also be an affirmative showing that the abandonment was the 

result of “voluntary repentance or change of heart.” In re J.F., Jr., 948 S.W.2d 807, 

811 (Tex. App.—San Antonio 1997, no writ); see Thomas, 708 S.W.2d at 863–64. 
13

That the attempt was not successful or that abandonment of commission of the 

offense occurred for some other motive is not a renunciation. See PENAL 

§ 15.04(c)(1) (“Renunciation is not voluntary if it is motivated in whole or in part 

. . . by circumstances not present or apparent at the inception of the actor’s course of 

conduct that increase the probability of detection or apprehension or that make more 

difficult the accomplishment of the objective.”). Accordingly, under 

Section 15.04(a), only in the case of attempted tampering with evidence and only 

where Appellant’s voluntary actions of abandonment did not ultimately result in the 

commission of tampering with physical evidence may there exist a fact question on 

the application of renunciation to be decided by the jury.

We first note that Appellant in this case was only charged with tampering with 

evidence under Section 37.09(d)(1), not with attempted tampering with evidence 

under Section 15.01. See PENAL §§ 15.01, 37.09(d)(1). The rationality behind 

Appellant’s position is cyclical; Appellant cannot assert that her conduct only 

constituted attempted tampering because she renunciated—as she contends in this 

case—while simultaneously contending that the law of renunciation applies

precisely because her conduct only constituted attempted tampering. Because 

Appellant was not charged with an offense under Sections 15.01, 15.02, or 15.03, 

renunciation is inapplicable, and Appellant cannot assert the defense to support an 

instruction on attempted tampering. See PENAL §§ 15.01–.03; Wesbrook v. State, 29 

S.W.3d 103, 121–22 (Tex. Crim. App. 2000) (renunciation instruction under

Section 15.04(b) not warranted where defendant was not prosecuted for conspiracy 

to commit or solicitation of murder); see also Stout v. State, No. 05-05-01064-CR, 

2006 WL 540338, at *1 (Tex. App.—Dallas 2006, no pet.) (not designated for 

publication) (“Unless a defendant is charged under section 15.01 . . . , 15.02 . . . , or 

15.03 . . . of the penal code, a renunciation defense does not apply.”).
14

Moreover, Appellant may not use renunciation as a defense because the object 

offense of tampering with evidence had already been completed. See PENAL 

§§ 15.01, 15.04, 37.09(d)(1); Thomas, 708 S.W.2d at 863; In re J.F., Jr., 948 S.W.2d 

at 811 (“In the present case, appellant was not charged with an attempted offense. 

The offense appellant claims to have abandoned actually occurred. Therefore, 

appellant was not entitled to avail himself of the defense of renunciation.”). By 

completing the object offense, Appellant necessarily failed to “tak[e] further 

affirmative action that prevented the commission [of the offense].” PENAL

§ 15.04(a). Additionally, this is not a case in which “abandonment was insufficient 

to avoid commission of the offense.” Id. To avoid committing the offense, 

Appellant could have abandoned her conduct at any time before hiding the bodies 

under the trailer. Of course, it is axiomatic to say that abandonment is insufficient 

to avoid the commission of the offense once the offense has been committed, but the 

statute cannot reasonably be interpreted to encompass such a scenario. See Thomas, 

708 S.W.2d at 863 (citing former MODEL PENAL CODE § 5.01, at p. 360 (1985)). 

Under these facts, Appellant’s conduct was not a renunciation: it was a confession. 

See id.; see also McCray v. United States, 276 F.2d 705, 707 (5th Cir. 1960) (“When

. . . the offenses charged are substantive offenses and the defendants admit that they 

committed them, there is no room or place for purging guilt by abandonment of the 

criminal act and renunciation of the criminal intent. There is only place and time for 

a full confession of guilt . . . .”). Therefore, renunciation is inapplicable and there 

must exist some evidence warranting an instruction on the lesser included offense of 

attempted tampering independent of a defense on renunciation.

Without the ability to rely on renunciation as a defense, Appellant’s admitted 

acts of moving and placing bodies under the skirt of the trailer greatly exceed mere 

preparation; indeed, they are affirmative acts of commission that exceed the scope 

of criminal attempt entirely because they actually “effect[ed] the commission of the 
15

offense intended.” See PENAL § 15.01(a). The record contains no evidence from 

which a rational jury could find that, if Appellant was guilty, she was guilty of only 

attempted tampering with evidence. See Rice, 333 S.W.3d at 145; Hackbarth v. 

State, 617 S.W.2d 944, 946 (Tex. Crim. App. 1981). Therefore, we hold that the 

second prong of the test set forth above was not met and that the trial court did not 

err in omitting an instruction in the court’s charge on the lesser included offense of 

attempted tampering with evidence.

Accordingly, the trial court did not err in refusing to submit an instruction and 

application paragraph in the court’s charge on the lesser included offense of 

attempted tampering or on the affirmative defense of renunciation. We overrule 

Appellant’s third issue.

This Court’s Ruling

We affirm the judgment of the trial court.

W. BRUCE WILLIAMS

JUSTICE

April 15, 2021

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.