IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

GEORGE ANTHONY THURSTON, § 

APPELLANT § 

§ 

V. § NO. PD-1316-14 

§ 

THE STATE OF TEXAS, § 

APPELLEE § 

ON DISCRETIONARY REVIEW OF CAUSE NUMBER 02-13-00242-CR IN 

THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS DISTRICT 

OF TEXAS, AT FORT WORTH, TEXAS.

STATE'S BRIEF ON THE MERITS

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas 

DEBRA WINDSOR, Assistant

Criminal District Attorney

Chief, Post-Conviction 

CHARLES M. MALLIN, Assistant

Criminal District Attorney

Tim Curry Criminal Justice Center

401 W. Belknap 

Fort Worth, Texas 76196-0201 

(817) 884-1687 

FAX (817) 884-1672 

State Bar No. 12867400 

CCAappellatealerts@tarrantcountytx.gov 

LISA McMINN

State Prosecuting Attorney

PD-1316-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/17/2015 12:05:26 PM

Accepted 4/17/2015 12:27:45 PM

ABEL ACOSTA

CLERK
TABLE OF CONTENTS

PAGE

INDEX OF AUTHORITIES................................................................................ ii

STATEMENT OF THE CASE.............................................................................1

STATEMENT REGARDING ORAL ARGUMENT...........................................2

STATEMENT OF FACTS ...................................................................................2

SUMMARY OF THE STATE’S ARGUMENT ................................................12

STATE’S RESPONSE TO APPELLANTS’ QUESTIONS FOR REVIEW .....13

I. ARGUMENTS AND AUTHORITIES................................................13

II. NECESSITY OF REMAND................................................................25

CONCLUSION AND PRAYER.........................................................................28

CERTIFICATE OF COMPLIANCE..................................................................29

CERTIFICATE OF SERVICE ...........................................................................29

i
INDEX OF AUTHORITIES

Page(s)

Cases

Barrow v. State,

241 S.W.3d 919 (Tex.App.- Eastland 2007, pet. ref’d) ....................18, 19, 21, 24

Boykin v. State,

818 S.W.2d 782.............................................................................................16, 17

Briscoe v. State,

2013 WL 4822878 (Tex.App.-Austin 2013, no pet.)...................................passim

Dowthitt v. State,

931 S.W.2d 244 (Tex.Crim.App.1996)...............................................................17

Eddins–Walcher Butane Co. v. Calvert,

 156 Tex. 587, 298 S.W.2d 93 (1957)...................................................................17

Gonzales v. State,

2005 WL 2951481 (Tex.App.-Dallas 2005, no. pet.)(not designated 

for publication)....................................................................................................27

Lumpkin v. State,

129 S.W. 3d 659 (Tex.App.-Houston [1st Dist] 2004, pet. ref’d) ...............passim

Maheffey v. State,

364 S.W.3d 908 (Tex.Crim.App.2012)...............................................................17

Morter v. State,

551 S.W.2d 715 (Tex.Crim.App.1977)...............................................................17

Ortiz v. State,

2005 WL 2951505 (Tex.App.-Dallas 2005, pet. ref’d)(not 

designated for publication)..................................................................................27

Panell v. State,

7 S.W.3d 222 (Tex.App.-Dallas 1999, pet. ref’d)...............................................15

ii
State v. Smith,

436 S.W.3d 751 (Tenn. 2014).................................................................20, 21, 24

State v. Smith,

No. M2011-00440-CCA-R3-CD, 2012 WL 2674524 

(Tenn.Crim.App. July 6, 2012)(Application for Permission to 

Appeal Granted by Supreme Court Dec. 13, 2012)(not designated 

for publication)...................................................................................................19, 

Thurston v. State,

No. 02-13-00242-CR, 2014 WL 3536955 (Tex.App.-Fort Worth 

July 19, 2014, pet. granted)(not designated for publication) ..........................2, 27

Whitelaw v. State,

 29 S.W.3d 129 (Tex.Crim.App.2000).................................................................15

Williams v. State,

270 S.W.3d 140 (Tex.Crim.App.2008).........................................................18, 22

Statutes

Tennessee Code Annotated section 39-16-505 ........................................................19

TEX. GOV’T. CODE § 311.021(2)........................................................................16, 17

TEX. GOV'T. CODE § 311.011(a)...............................................................................17

TEX. PENAL CODE § 6.03(b).....................................................................................18

TEX. PENAL CODE § 37.09(a)(1)........................................................................passim

Other Authorities

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1339 

(3rd ed. 1992)......................................................................................................16

RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 1433 (2d 

ed.2001).............................................................................................................16n

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1669 (1st ed. 

1993) ...................................................................................................................16

iii
IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

GEORGE ANTHONY THURSTON, §

APPELLANT §

§

V. § NO. PD-1316-14

§

THE STATE OF TEXAS, §

APPELLEE §

ON DISCRETIONARY REVIEW OF CAUSE NUMBER 02-13-00242-CR IN 

THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS DISTRICT 

OF TEXAS, AT FORT WORTH, TEXAS.

STATE'S BRIEF ON THE MERITS

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

This brief is filed on behalf of the State of Texas, by and through Sharen 

Wilson, Criminal District Attorney of Tarrant County.

STATEMENT OF THE CASE

The Appellant wasindicted in the 371st District Court of Tarrant County, Texas., 

in Cause No. 1286534D for the murder of James Anders and in Cause No. 1293819D 

for the offense of Tampering with Evidence pursuant to § 37.09(a)(1) and § 

37.09(d)(1) of the Texas Penal Code. [RR: I III at 5]. The murder and tampering cases 

were consolidated for trial. [RR: II at 22-23]. A jury acquitted Appellant on the 

murder charge, but convicted him on the tampering charge. [RR: VII at 6]. The same 

1
jury assessed his punishment at eighty (80) years’ confinement in the Institutional 

Division of the Texas Department of Corrections. [CR: I at 62]. Appellant‘s conviction 

was affirmed by the Second Court of Appeals in Thurston v. State, No. 02-13-00242-

CR, 2014 WL 3536955 (Tex.App.-Fort Worth July 19, 2014, pet. granted)(not 

designated for publication). Appellant filed a motion for rehearing which was denied 

by the Second Court of Appeals on August 29, 2014. This Court granted Appellant’s 

Petition for Discretionary Review.

STATEMENT REGARDING ORAL ARGUMENT

The State is in agreement with the Appellant that oral argument would be 

helpful in this case. This case involves an issue of first impression concerning the 

statutory construction of Section 37.09(a)(1) of the Texas Penal Code, Tampering with

or Fabricating Physical Evidence.

STATEMENT OF FACTS

On May 28, 2012 Sean Baker, a train engineer with the Fort Worth and Western 

Railroad, noticed something out of place in a vacant lot alongside the railroad crossing 

located at Eighth Avenue and Windsor Place, commonly known as Windsor Hill. [RR: 

IV at 45-46, 49]. After a couple of days, Baker and his fellow employees spotted the 

article. [RR: IV at 52-53]. They then decided to see what was in the field. On May 28, 

2
2012, two days before, they almost hit a white pick-up truck crossing the railroad 

tracks at that same location. [RR: IV at 52].

From the direction of the white truck, Baker detected a smell emanating from the 

vacant field. [RR: IV at 57]. The article observed in the field looked like a pile of 

rubble wrapped in a sleeping bag with a foot sticking out of it. [RR: IV at 58]. At that 

time, Baker could not stop the train because they would not be able to get the train 

moving again. Id.; [RR: IV at 58; State’s Exhibits 102, 103]. Baker then called his 

supervisor, Jerry Stienkamp. [RR: IV at 58]. 

Steinkamp, the terminal operations director for Fort Worth and Western 

Railroad, dispatched Daniel Guido to the railroad crossing at Eighth Avenue and 

Windsor Place. [RR: IV at 63]. The police were called once it became obvious that 

there was a body concealed in the sleeping bag. [RR: IV at 63-64]. The police 

discovered that there was indeed a body wrapped in a sleeping bag with the head and 

feet sticking out. [RR: IV 71-72; State’s Exhibits 8-13].

Fort Worth Patrol Officer John Souther was dispatched at about 5:00 p.m. to the 

scene. [RR: IV at 69-70]. As Officer Souther walked down the railroad tracks toward

the body, he began to smell death. [RR: IV at 71]. He saw the head and feet sticking 

out of the sleeping bag. Id. Officer Souther also noticed that a moving blanket and a 

sleeping bag covering the body had been bound by a blue rope or nylon twine. [RR: IV 

3
at 75]. He contacted his supervisor, followed by the crime-scene and homicide 

divisions. [RR: IV at 77].

Once at the location, Detective Matthew Barron observed the victim’s body. 

[RR: IV at 168]. A cell-phone clip, but no cell phone, was on the victim’s body. 

[RR: IV at 170]. The cell phone clip raised the possibility that the victim had a cell 

phone. Id. The police recovered a receipt, but it was not completely legible. Id. The 

officers deciphered three letters, O-W-N, which Barron concluded could be “town” or 

“crown.” Id. 

Dr. Lloyd White, a contract pathologist functioning as a Tarrant County deputy 

medical examiner, performed the autopsy and examination of the body later identified 

as Walter James Anders. [RR: IV 102-103, 110]. Dr. White described the numerous 

gunshot wounds inflicted on the victim. [RR: IV at 118-12, 135; State’s Exhibits 27, 

28]. In addition to wounds on his feet, hand, shoulder, and thigh, there were several 

bullet wounds to the victim’s chest. [RR: IV at 124]. The victim’s body demonstrated 

a cluster of exit wounds. Id. Four bullets were recovered from Anders’ body. [RR: IV 

at 117]. Dr. White concluded that the cause of death was penetrating and perforating 

handgun wounds of the chest. [RR: IV at 139]. 

Detective Barron was able to contact Anders’ mother, who told him that her son 

had a cell phone and gave him his cell phone number. [RR: IV 176]. She also

4
informed Detective Barron that Anders was living somewhere in the Arlington Heights 

neighborhood, possibly in a garage apartment. 

Detective Barron started looking for stores with names like crown or town and 

found Crown Liquor on Vickery Street. Id. It was established that the receipt came 

from Crown Liquor, which was relatively close to where the body was found. [RR: IV 

at 177-80]. Crown Liquor was also in the general vicinity or part of town where 

another State’s witness, Lisa Juran, lived. [RR: IV at 180].

Detective Barron obtained Mr. Anders’ cell phone records. [RR: IV at 181]. 

Those records indicated a call directly to Juran. [RR: IV at 182-83]. Juran lived in the 

Arlington Heights neighborhood. [RR: IV at 180]. Crown Liquor was in the general 

vicinity of Juran’s house. Id. The detectives drove by her house and saw that there was 

a detached garage. Id. Officers also discovered that a white 1989 Ford F250 pick-up 

truck like the one spotted by the railroad employees was registered to Juran. [RR: IV 

at 183]. It appeared that Juran had contacted the victim within a few days of when his 

body was found. [RR: IV at 184]. 

Detective Barron prepared and distributed a flier in an attempt to get information 

on Anders’ murder. [RR: IV at 185]. Detective Barron and Detective Sullivan went to 

Juran’s house on June 12, 2012. Id. They engaged Juran in conversation, and she was 

5
in an extreme state of nervousness. [RR: IV at 190-91]. At that time, the detectives 

asked permission and were granted permission to look in the garage. [RR: IV at 193].

Once the detectives were in the garage area, they observed some tarps and a 

lounge chair identical to the one found with Anders’ body. [RR: IV at 194, 197; State’s 

Exhibits 44, 61-66]. They also saw a high-speed fan running and a bike belonging to 

the victim. [RR: IV at 198-99]. Detective Sullivan could smell decomposition. [RR: 

IV at 199]. At that point, the detectives obtained a search warrant. Id. 

Inside the house, detectives found two weapons which were identified as a 

Taurus nine-millimeter pistol in its case, an empty box for another Taurus pistol, and a 

twelve-gauge shotgun. [RR: IV at 203]. Barron obtained ATF trace reports on the 

purchase of the guns, which were identical nine-millimeter pistols purchased at the 

same place one month apart. [RR: V at 16]. 

Inside the garage, the officers noticed air fresheners strategically placed 

throughout the structure and bricks on the floor with large red stains that appeared to 

be blood. [RR: IV at 203-04]. They observed and seized three shell casings on the 

floor. [RR: IV at 204-05]. Juran had given consent to the search of her house and 

garage during her interview and prior to the issuance of the warrants. [RR: IV at 207]. 

During the search of the home, the officers seized a knife from a little dresser inside 

6
the front doorway. [RR: IV at 215; State’s Exhibits 118-19]. During the crime-scene 

search of the garage, CSI discovered one bullet fragment. [RR: V at 30]. 

Based on information that the investigating officers obtained during the search 

of the Juran home and garage, and their conversations with Lisa Juran, an arrest 

warrant was obtained for Appellant on June 13, 2012. [RR: IV at 215-19]. On June 

20. 2012, Appellant was apprehended. [RR: IV at 218- 219.] The 1989 white Ford 

pick-up truck had been seized from the arrest scene and placed in a secure bay at the 

auto pound. Id. A search warrant for the truck was obtained and executed on June 21, 

2012. [RR: IV at 218-20; State Exhibit No. 133]. During the search of the truck, the 

officers retrieved a series of swabs taken and collected of stains for possible DNA 

testing. [RR: IV at 224-25]. Further, once Appellant was in custody, a search warrant 

issued to take a buccal swab. [RR: IV at 227-28]. Additionally, major case fingerprints 

were obtained. [RR: IV at 227].

Appellant’s arrest was made in the 1000 block of Henderson Avenue in the 

downtown area of Fort Worth. [RR: V at 197-204]. He was spotted walking 

southbound with a gas can in his hand. [RR: V at 204]. When the Fugitive Unit 

attempted to arrest Appellant, he failed to cooperate, and he received injuries because 

of his resistance. Id.

7
Juran testified at trial that she had known Anders since 2011 and that he did yard 

work and odd jobs for her. [RR: VI at 13, 18]. She let Anders stay in her garage 

occasionally when he did not have any shelter. [RR: VI at 14]. The garage area was 

used as some type of “man cave” for Appellant. [RR: VI at 15-17]. Juran admitted that 

she had a 1989 white Ford F250 with a 460 engine. [RR: VI at 18]. 

On the day of the murder, Juran gave Anders a cash advance to do some work 

and left the house. Appellant and Anders were still there working on some chores. 

[RR: VI at 6]. When she returned home, neither Appellant nor Anders was there, and 

the white pick-up truck was gone. [RR: VI at 20-21]. The following morning, she 

started calling Anders on his cell phone, but she could not reach him. [RR: VI at 29-

30]. She attempted to call him three or four times. [RR: VI at 31 ].

Eventually, Juran detected a foul odor coming from around the house. [RR: VI 

at 39]. She told Appellant it smelled like dead animals, and Appellant replied that he 

would find the problem and take care of it. [RR: VI at 40]. She thought the odor was 

something like a dead mother raccoon. [RR: VI at 42]. 

On the day after Memorial Day, Appellant asked Juran to help him load 

something into the pick-up truck. [RR: VI at 42-43]. It was 11:00 p.m. and Juran was 

wearing her nightgown. Appellant said to her, “Baby, I hate to ask you to do this, but 

could you come help me move something?” She replied that she would. [RR: VI at 43]. 

8
The truck was backed into the driveway, and she saw a large object rolled up and tied 

in a big blue tarp. [RR: VI 45-46, 48]. Juran had a mover’s blanket that she had 

previously found on the side of I-35, which was also used to wrap the victim. [RR: VI 

at 47]. Juran did not see anything inside the tarp, and she had no knowledge about 

what type of object was wrapped up in the tarp. [RR: VI at 48]. She did note that there 

was a foul odor emanating from the tarp. [RR: VI at 49].

Appellant and Juran loaded the smelly object into the pick-up truck using a 

particle board as a ramp to assist them. [RR: VI at 50]. Juran testified that she 

assumed Appellant was going to take the tarp and the object wrapped up in it to a 

dumpster. [RR: VI at 53]. She was asleep when Appellant returned from disposing of 

the tarp. [RR: VI at 55]. When Juran found out about the flier distributed by the 

police, she began to suspect that something had happened to Anders. [RR: VI at 56].

Appellant eventually told Juran that Anders was sitting on one of the lounge 

chairs in the so-called “man cave” garage and had consumed about a half bottle of rum. 

There was a click in Anders’ eye, and he came after Appellant. [RR: VI at 58-59]. 

According to Appellant, Anders had a knife in his hand and was trying to get 

Appellant. [RR: VI at 60]. Appellant told Juran that he picked Anders up and threw 

him against the wall. Anders did not drop the knife, and Appellant told him to put the 

knife down; however, Anders again came after him, and Appellant “unloaded” into 

9
him. [RR: VI at 61]. Appellant specifically told Juran that, when Anders came after 

him with a knife the second time, he automatically reached for the gun and did what 

the Army trained him to do, i.e., he grabbed the gun and started shooting. [RR: VI at 

62].

Appellant testified on his own behalf about the events. Appellant told the jury 

that the victim was a heavy drinker, but he was not around Appellant when he did. 

[RR: VI at 138]. He further testified that, in the past two months, Anders’ drinking got 

out of control, and he started getting in trouble in various places where he was living 

and staying. [RR: VI at 140]. Appellant was in the Army, and he believed that “[i]f 

someone’s trying to hurt, harm, or kill me, myself, my love ones, I have a right to 

defend myself and my family and my love ones.” [RR: VI at 144].

Appellant explained that, around 10:00 a.m. on the morning of Anders’ death, he 

went to a local liquor store and bought a six-pack of beer and cigarettes for himself and 

a bottle of rum for Anders. [RR: VI at 151]. The two men then went back to Juran’s 

house. The beer went into the cooler, and the rum was put on the garage work table. 

[RR: VI at 152]. Around 2:30 p.m., Appellant decided to clean one of Juran’s guns, so 

he went to the bedroom to retrieve it. [RR: VI at 154]. When he started to clean the 

pistol, he and Anders had a few words about drinking. [RR: VI at 156]. Appellant 

thought Anders had been drinking too much, and they started arguing. Id. Appellant 

10
testified that he then asked Anders to go ahead and gather up the tools and call it a day, 

but Anders did not want to do that and wanted to continue working. [RR: VI at 157]. 

The argument grew louder and more abusive. Id. 

Appellant claimed that Anders had the knife out and that he grabbed Anders by 

the wrist and hurled him toward the wall. [RR: VI at 158]. Anders was on the ground 

and still had the knife. Appellant grabbed the pistol off the table and told Anders to 

drop the knife. Appellant testified, “He ain’t dropping it. He’s looking right at me. 

He’s just about got everything cleared off of him, and I just pointed the pistol and 

started firing.” [RR: VI at 159]. Appellant admitted firing all of the rounds in the 

magazine into Anders. [RR: VI at 160-61]. 

Appellant eventually put Anders’ body in a sleeping bag, threw a tarp over him, 

folded it up, rolled it up, and tied it with blue rope so that nothing was exposed. [RR: 

VI at 170-72]. He backed the truck up to the garage and had Juran assist him in putting

the wrapped-up body in the truck. [RR: VI at 173]. He drove the truck down by the 

railroad crossing, where there was a vacant lot, and disposed of the body. [RR: VI at 

176].

The next morning, Appellant went back into the garage and splashed a bottle of 

ammonia around. He broke down both guns into parts like he was going to clean them, 

11
gathered the parts in plastic bags, and went around disposing of the parts at stores and 

job sites. [RR: VI at 181, 223-26].

After both sides rested and closed, the trial court gave the jury its instructions. 

[CR: I at 43-47]. The court’s charge in cause number 1293819D instructed the jury 

that Appellant could be convicted for tampering with physical evidence, a human 

corpse, under § 37.09(d)(1) or in the alternative under § 37.09(a)(1). [CR: I at 44-45]. 

After deliberating the jury returned a general verdict of “guilty” to the tampering 

allegation. [CR: I at 48].

SUMMARY OF THE STATE’S ARGUMENT

The Second Court of Appeals correctly adopted the statutory construction 

analysis performed by the Houston Court of Appeals in Lumpkin v. State, 129 S.W. 3d 

659, 663 (Tex.App.-Houston [1st Dist] 2004, pet. ref’d). In order to give full effect to 

all the words, terms and phrases in § 37.09(a)(1), the word “pending” meant 

impending. Appellant would render the use of the word “pending” as an alternative 

to the use of the phrase “in progress” null and void. He would reduce subsection (a)(1) 

to nothing more than an exercise in redundancy, rendering that portion of the statute 

useless.

12
STATE’S RESPONSE TO APPELLANTS’ QUESTIONS FOR REVIEW

Appellant’s Questions For Review:

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 

investigation.

State’s Response:

The Second Court of Appeals was correct in utilizing the definition of “pending” 

meaning “impending” as analytical construct in measuring the sufficiency of the 

evidence under Section 37.09(a)(1) so that all the language in the provision was given 

effect and to avoid redundancy.

I.

ARGUMENTS AND AUTHORITIES

Put simply, the Fort Worth Court of Appeals was correct in utilizing the 

appropriate definition of the term “pending” as articulated in Lumpkin v. State, 129 

S.W. 3d at 663, as an analytical construct to measure the sufficiency of the evidence 

for a conviction under § 37.09(a)(1). This provision was meant to embrace factual 

scenarios such as in the instant case. Section 37.09(a)(1) states:

a) A person commits an offense if, knowing that an investigation or 

13
official proceeding is pending or in progress, he: 

(1) alters, destroys, or conceals any record, document, or thing with intent 

to impair its verity, legibility, or availability as evidence in the 

investigation or official proceeding. 

The essence of Appellant’s complaint under § 37.09(a)(1) is that he interprets 

the phrase “pending or in progress” to require that the investigation or official 

proceedings have had to formally commence before the actual tampering of the 

physical evidence transpired. In other words, Appellant’s entire argument is that, in 

order for the evidence to be sufficient under § 37.09(a)(1), the evidence had to 

establish that he knew that an actual investigation was pending, in that it was 

underway, when he concealed the corpse of James Anders. He contends that it was not, 

that the investigation was both temporally and proximately removed, and that the 

evidence was insufficient to support his conviction. His interpretation has been and 

should be rejected.

Appellant eschewsthe Lumpkin analysis of the term “pending or in progress” in 

the context of determining sufficiency under subsection (a)(1). The Lumpkin court on 

this matter wrote:

At first blush, the terms “pending” and “in progress” appear to be 

synonymous. Indeed, one definition of the adjective “pending” is 

“remaining undecided; awaiting decision or settlement; unfinished.” 

Random House Webster's Unabridged Dictionary 1433 (2d ed.2001). 

However, one of the cardinal principles of statutory construction is that 

we generally presume that every word in a statute has been used for a 

14
purpose and that each word, phrase, clause, and sentence should be given 

effect if reasonably possible. See Whitelaw v. State, 29 S.W.3d 129, 131 

(Tex.Crim.App.2000). To avoid redundancy from use of the terms 

“pending” and “in progress,” we look to a second definition of the 

adjective “pending,” which is “about to take place; impending.” Random 

House Webster's Unabridged Dictionary 1433 (2d ed.2001). Construing 

“pending” as meaning “about to take place, impending” places the Texas 

statute in harmony with other jurisdictions using the Model Penal Code 

terminology “believing that an official proceeding [or investigation] is 

pending or may be [or is about to be or is likely to be] instituted.” 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). Accordingly, we hold that the term 

“pending” in the Texas tampering-with-evidence statute means 

“impending, or about to take place.”

Lumpkin v. State, 129 S.W.3d at 663. The Lumpkin Court severely criticized the

Dallas Court of Appeals’ decision in Panell v. State, 7 S.W.3d 222, 223 (Tex.App.-

Dallas 1999, pet. ref’d), and commented that it disagreed with that court’s 

interpretation of § 37.09(a)(1) because it failed to speak to the meaning of the terms 

“pending” and “in progress.” Lumpkin v. State, 129 S.W3d at 663.

The Lumpkin Court relied on one of the cardinal principles of statutory 

construction: the reviewing court must generally presume that every word in the 

provision has been used for a purpose and each word, phrase, clause, and sentence 

should be given effect if reasonably possible. Id., citing, Whitelaw v. State, 29 S.W.3d 

129, 131 (Tex.Crim.App. 2000). In keeping with that principle, the Court looked to 

15
the full definition of “pending” which included “about to take place, impending.”1

 

This construction gave effect to both “pending” and “in progress.” Thus the Court 

determined that the term “pending” in the Texas tampering-with-evidence statue meant 

“impending, or about to take place” for the purpose of determining the sufficiency of 

evidence. Id. This definition also put the Texas provision in harmony with other 

jurisdictions that used Model Penal Code terminology. Lumpkin v. State, 129 S.W.3d 

at 663.

Appellant criticizes Lumpkin for relying on a single source in arriving at a 

definition of “pending.” However, other dictionaries are likewise consistent with the 

Random House definition. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

1669 (1st ed. 1993); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH 

LANGUAGE 1339 (3rd ed. 1992).

Also, the Lumpkin analysis is consistent with the Code Construction Act, TEX.

GOV’T.CODE § 311.021(2). The starting point in any question of statutory construction 

is the text of the statute itself. When a statute is clear and unambiguous, reviewing

courts apply the plain meaning of its words. Boykin v. State, 818 S.W.2d 782, 785–786 

& 786 n. 4 (Tex.Crim.App.1991). Next, the courts examine extratextual factors only 

when the words of the statute are ambiguous or the plain meaning would lead to absurd 

1 The Court relied on the RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 1433 (2d 

16

 
results. Id. In determining plain meaning, “[w]ords and phrases shall be read in context 

and construed according to the rules of grammar and usage.” TEX. GOV'T CODE § 

311.011(a); Dowthitt v. State, 931 S.W.2d 244, 258 (Tex.Crim.App.1996). More to 

the point, the Code Construction Act mandates that the appellate courts presume that 

“the entire statute is intended to be effective.” TEX. GOV'T. CODE § 311.021(2); 

Dowthitt v. State, 931 S.W.2d at 258. “Every word in a statute has been used for a 

purpose and each word, phrase, clause, and sentence should be given effect if 

reasonably possible.” Maheffey v. State, 364 S.W.3d 908, 913 (Tex.Crim.App.2012)(In 

interpreting statutes, we presume that the Legislature intended for the entire statutory 

scheme to be effective); Dowthitt v. State, 931 S.W.2d at 258; Morter v. State, 551 

S.W.2d 715, 718 (Tex.Crim.App.1977), quoting Eddins–Walcher Butane Co. v. 

Calvert, 156 Tex. 587, 591, 298 S.W.2d 93, 96 (1957). By taking the approach 

utilized in Lumpkin the courts gave effect to the entire statute, assigning a meaning to 

each phrase and word, thus, “pending” and “in progress” were different covering the 

full gambit of situations dealing with tampering of evidence.

Likewise, other courts of appeals have approved of the Lumpkin statutory 

construction. In Briscoe v. State, 2013 WL 4822878 (Tex.App.-Austin 2013, no pet.), 

the defendant was indicted both for the offense of murder and tampering-withed.2001).

17

 
evidence. As to the tampering charge it was apparent that Briscoe had concealed the 

murder victim’s body in a wooded green belt area located one-half block from his 

father’s home. Briscoe claimed that the evidence was insufficient to establish the 

tampering charge, because the State failed to prove beyond a reasonable doubt that he 

knew that an investigation was pending when he concealed the body. Rejecting the 

Pannell rationale and citing this Court’s holding in Williams v. State, 270 S.W.3d 140, 

142-43 (Tex.Crim.App.2008) and TEX. PENAL CODE § 6.03(b), the Austin Court noted 

that regarding the actor’s knowledge of the pending investigation, a “person acts 

knowingly, or with knowledge, with respect to the ... circumstances surrounding his 

conduct when he is aware ... that the circumstances exist.” The Court then went on to 

seemingly approve the notion that the State met its burden if it established that the 

defendant was aware an investigation was “impending or about to take place.” Briscoe 

v. State, 2013 WL 4822878 at *6.

In Barrow v. State, 241 S.W.3d 919 (Tex.App.- Eastland 2007, pet. ref’d), the 

Eastland Court adopted the Lumpkin statutory construction analysis, and explained:

Barrow relies upon Lumpkin v. State, 129 S.W.3d 659 (Tex. App.-

Houston [1st Dist.] 2004, pet. ref'd). There, the court held that the 

evidence was insufficient to sustain a conviction for tampering when the 

defendant swallowed cocaine after being pulled over for speeding. The 

court noted that Section 37.09(a) provided alternative methods for 

alleging knowledge of an investigation-either that it be “pending” or “in 

progress.” Lumpkin, 129 S.W.3d at 663. To distinguish between them, the 

court held that “pending” means “about to take place; impending.” Id. 

18
(citing Random House Webster's Unabridged Dictionary 1433 (2d 

ed.2001)). The court noted that the indictment alleged only that an 

investigation was in progress. Because the only investigation in progress 

when the defendant swallowed the cocaine was the traffic stop, the court 

held that the evidence was insufficient. Id. The clear import of the court's 

opinion, however, is that, if the indictment had alleged that the 

investigation was “pending,” then the evidence would have been 

sufficient. Lumpkin v. State, 129 S.W.3d at 923.

Id. Thus, when the indictment alleges “pending” the Lumpkin rationale is applicable.

Initially, the State pointed out to the Second Court of Appeals that the Tennessee 

Court of Criminal Appeals in interpreting its own tampering provision, which was 

adopted by the Tennessee Legislature from § 37.09 of the Texas Penal Code, approved 

the Lumpkin statutory construction of subsection (a)(1) by stating, “[w]e are persuaded 

that the Texas Court of Appeals’ reasoning is correct and conclude that “pending” 

means “impending or about to take place.” Once the police are notified, an 

investigation is “in progress.” State v. Smith, No. M2011-00440-CCA-R3-CD, 2012 

WL 2674524, at *9 (Tenn.Crim.App. July 6, 2012)(Application for Permission to 

Appeal Granted by Supreme Court Dec. 13, 2012)(not designated for publication).

In the interim, the Tennessee Supreme Court accepted the Smith appeal and 

considered the issue concerning the meaning of “pending” in its own tampering 

provision, Tennessee Code Annotated section 39-16-505. The Court noted that the 

Texas version of tampering was a derivation of the Model Penal Code, and that 

Tennessee adopted a version of tampering that proscribed similar conduct and shared 

19
common elements with the Texas tampering statute. State v. Smith, 436 S.W.3d 751, 

762-63 (Tenn. 2014). Most importantly, both Tennessee and Texas departed from the 

Model Penal Code in its use of the alternative terms “pending” or “in progress.” Id. 

The Court followed the Lumpkin Court’s reasoning, writing:

As an issue of first impression, we find it helpful to look to other 

jurisdictions to determine the meaning of “pending” or “in progress.” 

Cooper v. Glasser, 419 S.W.3d 924, 927 (Tenn.2013). In Lumpkin, the 

Texas Court of Appeals, in construing the Texas fabricating evidence 

statute, acknowledged that a recognized definition of “pending” is 

“remaining undecided; awaiting decision or settlement; unfinished.” 129 

S.W.3d at 663 (quoting Random House Webster's Unabridged Dictionary 

1433 (2d ed.2001)). The Texas court recognized, however, that this 

definition of “pending” would create a redundancy in the statute. Id. As 

the court noted, “one of the cardinal principles of statutory construction is 

that we generally presume that every word in a statute has been used for a 

purpose and that each word, phrase, clause, and sentence should be given 

effect if reasonably possible.” Id. The Lumpkin court therefore 

determined that the term “pending” within the Texas fabricating evidence 

statute means “impending, or about to take place.” Id.

Because Tennessee adopted the Texas version of the Model Penal Code, 

we find the reasoning in Lumpkin persuasive. We also employ the rule of 

statutory construction in which we presume that “every word in a statute 

has meaning and purpose and should be given full effect if so doing does 

not violate the legislature's obvious intent.” Casper, 297 S.W.3d at 683. 

We are likewise unable to conclude that the General Assembly intended 

to define the term “pending” in a manner that would be redundant with 

the alternative term “in progress.” We therefore hold that the term 

“pending” in Tennessee Code Annotated section 39–16–503 means 

“impending.” 

State v. Smith, 436 S.W.3d at 763. Because Texas employs a variation of the 

tampering-with-evidence provision that includes alternate terms in § 37.09(a)(1) 

20
the holdings of Smith, Lumpkin and Briscoe are of sound reasoning as they give 

full play to the meaning of all the words, terms, and phrases in the provision.

The statutory construction originally done by the Lumpkin Court and followed 

by the Second Court of Appeals in this case, and by other Courts in Texas including 

Briscoe, and Barrow, and by the Tennessee Supreme Court in State v. Smith, simply 

invoked the presumption that every word in a statute was used for a purpose and that 

each word, phrase, clause, and sentence was to be given effect. Lumpkin v. State, 129 

S.W.3d at 663. Taking the approach suggested by Appellant would mean that the word

“pending” and the phrase “in progress” are synonymous. Such a narrow position would 

render § 37.09(a)(1) redundant and would make the use of the phrase “in progress” 

useless if not void. The Fort Worth Court of Appeals’ opinion neither extends the 

definition beyond the scope of the statute nor contravenes the meaning of the language 

the legislature used in promulgating it.

Thus, as to Count One, Paragraph Two, when the Lumpkin definition of 

“pending” is applied to TEXAS PENAL CODE § 37.09(a)(1), the investigation was 

“impending.” Lumpkin v. State, 129 S.W.3d at 663; see Barrow v. State, 241 S.W.3d 

at 923; Briscoe v. State, No. 03-11-00014-CR, 2013 WL 4822878, at *6; State v. 

Smith, 436 S.W.3d at 762-63. Viewing all the evidence in the light most favorable to 

the verdict as set out under this issue in reference to Count One, any rational juror 

21
could have concluded beyond a reasonable doubt that Appellant was guilty of 

tampering with or fabricating physical evidence.

Appellant claims the cases illustrate the need for the defendant’s or a third 

party’s proximity to the investigation in order for the evidence to be sufficient. This 

proposition is without merit. First, to mandate such a requirement would be to graft an 

additional element onto § 37.09(a)(1), and a reading of the statute does not support the 

conclusion that a defendant’s or a third party’s proximity would be a constituent 

element of the offense. See Williams v. State, 270 S.W.3d at 144. 

Second, even if this Court were to require some type of proximity, Appellant’s 

own testimony provided ample evidence to support a conclusion of legal sufficiency.

Appellant testified that he shot the victim over an argument concerning James Anders’ 

drinking at Juran’s home. Appellant claimed he acted in self-defense after he was 

attacked by Anders with a knife. [RR: VI at 156-63]. He admitted getting off 

seventeen rounds and that Anders’ body had twelve wounds. [RR: VI at 160]. As to 

concealing Anders’ body, Appellant’s testimony reflected:

• Appellant knew he was in trouble because he had just shot a person and he had a 

prior felony conviction. [RR: VI at 167].

• Appellant didn’t want to bring any attention to the location where the crime took 

place. [RR: VI at 176].

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• Appellant picked up everything he could in the garage where the shooting took 

place. [RR: VI at 170].

• Appellant got out a sleeping bag, put James Anders in the bag and zipped him 

up in it. [RR: VI at 176].

• Appellant threw a blue tarp over Mr. Anders. Id.

• Appellant roped-up the tarp, backed up the truck to the garage, had Juran assist 

him and put the corpse in the bed of the truck. [RR: VI at 173].

• After putting items in the truck, Appellant went and got bleach and splashed it 

around the garage. [RR: VI at 175].

• The next morning, Appellant took a bottle of ammonia and splashed it around 

the garage because of the smell in there. [RR: IV at 175].

• Appellant drove the truck down to the railroad tracks and left the corpse in that 

area. [RR: VI at 176].

• After dumping the body Appellant continued to cleanse the garage where the 

shooting took place. [RR: VI at 176-177].

• Appellant took the pistol he shot Anders with and another gun, broke them into 

parts, gathered up the parts, put them in plastic bags and disposed of them in 

various dumpsters. [RR: VI at 181].

• Appellant saw a flier at a convenience store concerning James Anders, and felt 

23
good the police didn’t know who committed the crime. [RR: VI at 183].

• Appellant knew that Anders’ body would eventually be found and a police 

investigation would ensue. [RR: VI at 245].

The scenario cast by the evidence in this case is exactly the type of situation that 

should be within the purview of a tampering-with-evidence provision such as § 37.09.

 In this case, Appellant was charged with tampering with physical evidence, a 

human corpse, under subsections (a)(1) of § 37.09 TEX. PENAL CODE, and under the 

plain and unambiguous language of statute, and consistent with Texas jurisprudence, 

the evidence was sufficient to establish his guilt beyond a reasonable doubt. Appellant 

concealed the human corpse of James Anders knowing an investigation was pending 

with the intent to impair its verity or availability in the investigation. Lumpkin v. State, 

129 S.W.3d at 663; see Barrow v. State, 241 S.W.3d at 923; Briscoe v. State, No. 03-

11-00014-CR, 2013 WL 4822878, at *6; State v. Smith, 436 S.W.3d at 762-63.

In Appellant’s brief, he attempts to create a dichotomy between Lumpkin and 

Briscoe and the facts of the instant case. Appellant fabricates the proverbial straw-man,

the sheriff’s deputy making the traffic stop before Lumpkin swallowed the contraband, 

and the driver of the prostitute in the Briscoe case. Accordingly, they were the 

individuals that could investigate or report the defendants’ actions to the appropriate 

authorities. See Appellant’s Brief at 11-12. This in reality is a false narrative. Like in 

24
Lumpkin and Briscoe, the evidence paints a picture of a criminal trying to distance 

himself from an investigation he knew was going to result. Appellant did not want any 

investigation taking place at the Juran home. [RR: VI at 176]. Appellant knew he was 

in trouble; he had just shot a man twelve times. [RR: VI at 166]. He cleansed the scene 

by throwing out the shell casings, disposed of the weapons by breaking them down and 

throwing the parts in various dumpsters, and attempted to rid the garage of the odor of 

his victim’s decaying corpse. [RR:VI at 221-23, 225-27]. Appellant’s behavior was 

clearly to thwart the investigative process and avoid detection.

The Second Court of Appeals was correct in following the statutory construction 

performed in Lumpkin v. State, 129 S.W.3d at 663, concerning the definition of the 

word “pending” as used in § 37.09(a)(1) and its judgment should be affirmed.

II.

NECESSITY OF REMAND

Count One of the indictment alleged that the Appellant:

Then and there knowing that an offense had been committed, namely 

murder, alter, or destroy or conceal a human corpse, with intent to impair 

its verity or availability as evidence in any subsequent investigation or 

official proceeding related to the offense. 

[CR: I at 5].

The first paragraph of the indictment alleged that the Appellant:

That the said Defendant in the County of Tarrant and State aforesaid, on 

or about the 30th day of May, 2012 did then and there knowing that an 

25
investigation or official proceeding was pending or in progress alter or 

destroy or conceal a human corpse with intent to impair its verity or 

availability as evidence in said investigation or official proceeding[.] 

[CR: I at 5].

The application paragraph of the Court’s charge read as follows:

Now, therefore, if you find and believe the evidence beyond a reasonable 

doubt, that the Defendant, George Anthony Thurston, in Tarrant County, 

Texas, on or about the 30th day of May, 2012, did then and there knowing 

that an offense had been committed, namely murder, alter or destroy or 

conceal a human corpse, with intent to impair its verity or availability as 

evidence in any subsequent investigation or official proceedings related 

to the offense, as charged in Paragraph One of the indictment; or, if you 

find from the evidence beyond a reasonable doubt, that the Defendant, 

George Anthony Thurston, in Tarrant County, Texas, on or about the 30th

day of May, 2012, did then and there knowing that an investigation or 

official proceeding was pending or in progress alter or destroy or conceal 

a human corpse with intent to impair its verity or availability as evidence 

in any said investigation or official proceeding, as charged in Paragraph 

Two of the indictment, then you will find the Defendant guilty of 

tampering with or fabricating physical evidence.

[CR: I at 44-45].

The jury returned the following verdict:

We, the jury find the Defendant, George Anthony Thurston, guilty of the 

offense of tampering with or fabricating physical evidence as charged in 

the Indictment. 

[CR: I at 48].

In measuring the sufficiency in this case, the Court of Appeals noted,

“[t]he first paragraph alleged that on or about May 30, 2012, knowing a 

murder had been committed, Thurston altered, destroyed, or concealed a 

26
human corpse with intent to impair its verity or availability in a 

subsequent investigation of or official proceeding related to the murder. 

See Tex. Penal Code Ann. § 37.09(d)(1) (West 2011 & Supp.2013). 

Thurston also attacks his conviction under this paragraph, but based on 

our resolution here, we do not reach his arguments related to it. See 

Tex.R.App. P. 47.1.”

Thurston v. State, 2014 WL 3536955 *1 n.3. Thus, in assessing the legal sufficiency 

of the evidence the Court of Appeals only determined the issue as to the second 

paragraph, the allegation made under Section 37.09(a)(1) of the Texas Penal Code. 

The sufficiency of the allegation as to Section 37.09(d)(1) was not determined by the 

Court and the State seeks to resolve the issue now.

Therefore, in the event this Court should reverse the judgment of the Second

Court of Appeals on the issue of statutory construction concerning the definition of 

“pending” this Court should remand this case back to that court with instructions to 

conduct a sufficiency analysis on the charge stemming from paragraph one of the 

indictment emanating from Section 37.09(d)(1) of the Texas Penal Code. See Gonzales 

v. State, 2005 WL 2951481 *8 (Tex.App.-Dallas 2005, no. pet.)(not designated for 

publication); see Ortiz v. State, 2005 WL 2951505 *8 (Tex.App.-Dallas 2005, pet. 

ref’d)(not designated for publication).

27
CONCLUSION AND PRAYER

The State prays that this Honorable Court affirm the decision of the Court of 

Appeals, as well as Appellant’s conviction and in the alternative this case should be 

remanded to the Court of Appeals with instructions to conduct a sufficiency analysis 

concerning paragraph one of the indictment stemming from Section 37.09(a)(1) Texas

Penal Code.

Respectfully submitted,

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR, Assistant

Criminal District Attorney

Chief, Post-Conviction

/s/ Charles M. Mallin

CHARLES M. MALLIN, Assistant

Criminal District Attorney

401 W. Belknap

Fort Worth, Texas 76196-0201

(817) 884-1687

FAX (817) 884-1672

State Bar No. 12867400

CCAappellatealerts@TarrantCountytx.gov

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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 document also complies with the word-count 

limitations of TEX. R. APP. P. 9.4(i) because it contains 6,751 words, excluding any 

parts exempted by TEX. R. APP. P. 9.4(i)(1), as computed by Microsoft Office Word, 

the computer software used to prepare the document.

/s/ Charles M. Mallin

CHARLES M. MALLIN

CERTIFICATE OF SERVICE

A true copy of the State's merit brief has been e-served to opposing counsel, the 

Hon. Leigh W. Davis, leighwdavis@gmail.com, 1901 Central Dr., Ste. 708, Bedford, 

Texas 76021, and to Lisa McMinn, State Prosecuting Attorney, 

information@spa.texas.gov, P.O. Box 13046, Austin, Texas 78711, on this, the 

17thday of April, 2015.

/s/ Charles M. Mallin

CHARLES M. MALLIN

H:\MALLIN.M31\BRIEFS\PD-1316-14_THURSTON,_George,_ST'S_MERIT_BF.doc

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