Under Texas Penal Code §37.09, tampering with or fabricating physical evidence is a third-degree felony (2-10 years TDCJ) if the evidence relates to an ongoing or impending investigation or proceeding. The statute applies to altering, destroying, concealing, or making false items with intent to impair their availability as evidence. Tampering with a human corpse is a second-degree felony.
Dropping a bag of drugs, deleting text messages, or hiding a weapon during a police encounter can transform a minor situation into a third-degree felony in Texas. Penal Code §37.09 is one of the most commonly added charges in drug and firearm cases.
What Is Tampering With Evidence?
Penal Code §37.09(a) provides:
"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 impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or (2) 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 official proceeding."
The Three Elements
- Knowledge that an investigation or official proceeding is pending or in progress
- Alteration, destruction, or concealment of a record, document, or physical item
- Intent to impair the item's availability as evidence
Penalties
- Physical evidence: Third-degree felony — 2 to 10 years TDCJ, up to $10,000 fine
- Human corpse: Second-degree felony — 2 to 20 years TDCJ
- Records of lending or filing: Class A misdemeanor in limited circumstances
Common Fact Patterns
- Dropping or swallowing drugs during a police encounter
- Deleting text messages after learning of investigation
- Throwing weapons during a chase
- Destroying computer files after grand jury subpoena
- Shredding documents after service of search warrant
- Hiding firearms when officers arrive
- Wiping phone data before seizure
Knowledge Requirement
The State must prove the defendant knew an investigation or proceeding was pending or in progress. Common proof includes:
- Officers visibly approaching
- Sirens or emergency lights
- Subpoena or warrant service
- Prior interview by investigators
- Media coverage of the investigation
Purely prospective destruction — “just in case” — may not satisfy the knowledge element if no specific investigation was actually pending.
Intent to Impair
The State must prove intent to impair the evidence. This is typically inferred from:
- Timing — destruction occurring immediately after awareness of investigation
- The nature of the item — clearly relevant to the suspected offense
- Method — suggestive of concealment rather than routine disposal
- Statements acknowledging the destruction was to avoid evidence
Defense Strategies
Lack of Knowledge
If no investigation was pending or the defendant didn't know about it, the knowledge element fails.
Routine Conduct
Normal disposal of papers, routine file deletion, and regular business practices typically don't show intent to impair.
Item Not Evidence
The item must have evidentiary value. Irrelevant items — personal photos, unrelated documents — may not qualify.
Stacking Challenges
Tampering is often stacked on a primary drug or weapon charge. If the primary charge fails, the tampering charge often can't independently stand — particularly if the item itself is the reason there's no primary charge.
Deleted vs. Destroyed
Digital forensics frequently recovers “deleted” data. When data is recovered, the destruction element can be challenged.
Recent Case Law
Texas appellate courts have issued numerous tampering opinions addressing the knowledge requirement, the definition of “physical evidence,” and the scope of “investigation or official proceeding.” Defense counsel should carefully review current case law before plea or trial.
Frequently Asked Questions
Can tampering be charged without the underlying crime?
Yes. Tampering is an independent offense — the State doesn't need to prove the underlying crime. This often results in tampering convictions even when drug or weapon charges fail.
What if I didn't know police were coming?
Lack of knowledge defeats the element. The State must prove awareness of pending investigation or proceeding.
Is deleting text messages tampering?
It can be. If deletion occurs after learning of investigation or legal proceedings, tampering may apply. Routine pre-investigation deletion is generally not tampering.
Can I get probation for tampering?
Yes. Third-degree felony probation is available, though prosecutors often seek prison time when tampering relates to drug or violent cases.
Does tampering carry a deadly weapon finding?
Not typically — unless the evidence tampered with includes a deadly weapon used in the underlying offense.
Speak With a Frisco Criminal Defense Attorney
If you or a loved one is facing tampering with evidence charges in Frisco, Collin County, or anywhere in the Dallas-Fort Worth metroplex, the time to act is now. L and L Law Group attorneys are available 24 hours a day, 7 days a week. Call (214) 466-1398 for a free, confidential consultation, or submit your case online and a licensed attorney will contact you directly.
This article is general information, not legal advice. Texas criminal law is complex and fact-specific — please consult a licensed Texas attorney about your particular situation. Past results do not guarantee future outcomes.