The case of the week is Denny v. State, No. 11-18-00270-CR, ___ S.W.3d ___ (Tex. App.—Eastland Oct. 30, 2020, no pet. h.) (Google Scholar, Slip Opinion).

Reversals on appeal in criminal cases are rare. When they do happen, it’s usually because of some procedural problem in the courts below—an unconstitutional search, an unreliable confession, an unfair trial. Reversals on sufficiency grounds—there wasn’t enough evidence to convict—are exceedingly, vanishingly rare. But the argument continues to be made because of cases like this one.

In August 2012, an unresponsive child was taken to Abilene Regional Medical Center. The hospital called CPS, which sent Investigator Tapia to check on the other children in the home. As she was leaving, the child in the hospital was pronounced dead. Sergeant Beard with the Abilene Police Department took a photograph (a digital photograph) of the child and sent it to Tapia’s supervisor, McDaniel. McDaniel showed the APD photo to Tapia (to prepare her for what she might find) and sent a copy to her supervisor, Gretchen Denny. When Tapia arrived at the home, she determined that the children needed medical attention.

Tapia took the children to the hospital and wanted to show the APD photo to medical staff, “[h]oping that the photograph would help the medical staff diagnose and treat the two children.” Slip Op. at 3. But Tapia didn’t actually have the APD photo; she had only seen it on McDaniel’s phone. Tapia asked McDaniel to send her the photo. McDaniel checked with Denny, who said “No . . . delete it.” Slip Op. at 3. Meanwhile, Sergeant Beard sent the APD photo to Detective Shoemaker, who was at the hospital. The opinion is silent on whether Shoemaker showed the APD photo to the medical staff or whether it helped medical staff diagnose and treat the children’s injuries.

The fallout from this case was huge. The mother of the children was sentenced in 2014 to 30 years in prison. The father of the children (who was on deployment  with the Air Force at the time) was prosecuted through the Air Force and initially sentenced to 3 years’ confinement on one count of adultery and three counts of child neglect. The regional supervisor for CPS was indicted, though the charges against her were ultimately dismissed.

And Gretchen Denny was indicted in December 2015 for concealing evidence in violation of Tex. Penal Code § 37.09(a)(1). She was convicted by a jury in April 2018 and sentenced to six years’ confinement, with the sentence suspended and community supervision imposed for six years. She appealed and argued, among other things, that the evidence was insufficient to support her conviction.

The first hurdle in a sufficiency challenge is pretty high. The court of appeals must consider “all of the evidence admitted at trial,” both direct and circumstantial, and “including evidence that may have been improperly admitted.” Slip Op. at 4. When there are conflicts in the evidence, the court of appeals will “defer to the jury” and “presume that the jury resolved the conflicts in favor of the verdict.” Slip Op. at 4. Finally, the court will compare the evidence, including its “combined and cumulative force,” to the “hypothetically correct jury charge” to determine whether “a rational jury could find each essential element of the offense beyond a reasonable doubt.” Slip Op. at 4 (citing Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).

In this case, the hypothetically correct jury charge would have required the jury to find that she actually concealed the APD photo by directing CPS personnel to refuse to provide it. Slip Op. at 6. But, she argued, CPS got the APD photo from the APD, so she could not possibly have concealed the APD photo from the APD. The court of appeals agreed:

Independent of whether law enforcement in this case spoke to Appellant or any other CPS investigator, law enforcement knew that the photograph existed and knew that they had a copy of it. Law enforcement had no difficulty locating the photograph in question. In fact, the evidence established that the photograph was already in the possession of the APD, and Detective Shoemaker ultimately received a copy of the photograph from Sergeant Beard.

Slip Op. at 8. Accordingly, “there is no evidence from which a rational trier of fact could have found beyond a reasonable doubt that the photograph was actually concealed.” Slip Op. at 8. Without any evidence of actual concealment, the evidence was insufficient to sustain a conviction for concealment.

The second hurdle in the sufficiency analysis is equally high. A conviction for one offense (say, concealing evidence) must be “reformed” to a conviction for a lesser included offense (say, attempting to conceal evidence) if “(1) in the course of convicting the appellant of the greater offense, the factfinder must have necessarily found every element of the lesser included offense; and (2) . . . there is sufficient evidence to support a conviction for the lesser included offense.” Slip Op. at 8–9 (citing Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014)). The court of appeals answered the first question without much discussion. Slip Op. at 9.

But as to the second question: “The dispositive question to be decided is whether there was sufficient evidence of a specific intent to conceal the photograph.” Slip Op. at 10. Denny argued that she could not have had the specific intent (or conscious objective) to conceal the APD photo because she knew that APD already had the photo (because she had gotten it from APD) and that she could not possibly conceal the APD photo from APD. In other words, she could not specifically intend something she knew was impossible.

The Texas Court of Criminal Appeals has dealt with this issue before: “it is less likely (though not impossible) that the appellant would harbor a ‘conscious objective’ to cause a result he knew to be impossible.” Thornton, 425 S.W.3d at 305. The line seems to be drawn somewhere around plausibility: “Although Thornton was not likely to succeed in his attempt to hide the pipe, the court found that a jury could reasonably infer that Thornton intended to conceal the pipe based on its material composition, size, and the dimly lit hour of the day.” Slip Op. at 10–11 (citing Thornton, 425 S.W.3d at 305). In other words, what Thornton called an “impossible” result was actually only unlikely one and therefore something he could have intended.

But this case is different:

Here, the object at issue is a digital photograph—something that, by its very nature, is easily copied, shared, and stored in multiple locations. . . . Although it is not impossible for a person to harbor a conscious objective to produce an impossible result—here concealing something from someone who already has a copy—the unique facts surrounding the creation of the photograph by the APD, combined with Appellant’s knowledge about the photograph’s origin, weigh heavily against a finding that Appellant intended to conceal the photograph from the investigation.

Appellant, in her police interview, stated that she knew McDaniel had received the photograph from the APD. Further, the photograph remained in the possession of the APD throughout the investigation: Sergeant Beard took the original photograph and it never left his possession; he eventually sent a copy of it to Detective Shoemaker.

Slip Op. at 11. In other words, concealing a digital photograph from the person who took it is impossible (at least under the facts alleged in this case), so no rational juror could have concluded that she intended to conceal the APD photo from the APD. Without sufficient evidence that she specifically intended to conceal the APD photo, there was not sufficient evidence to sustain a conviction for attempting to conceal.

Gretchen Denny cleared both hurdles on the sufficiency challenge track, so her conviction was reversed.

This case is food for thought in a couple ways. First, what does this mean for future prosecutions for deleting pictures from a phone? Second, what the heck is going on here? I fear that this prosecution went as far as it did because of petty grievances and interpersonal squabbles. Truth be told: one of the greatest dangers to the rule of law is the use of law by local officials to settle personal scores. We must be vigilant not to let that happen.