Tampering with or Fabricating Physical Evidence is a felony that frequently grows out of a traffic stop, a drug investigation, or a DWI — often based on an allegation that someone swallowed, tossed, or hid something. Board Certified criminal defense attorney and former Felony Chief Prosecutor Brian Foley defends tampering cases throughout Montgomery, Harris, Brazos, and Walker County, Texas.
What Is Tampering with Evidence?
Under Texas Penal Code §37.09, 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; or
- makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the proceeding.
The two elements that decide most cases are knowledge that an investigation was pending or in progress and the intent to impair the evidence. Acting before any investigation exists, or without intent to affect a case, is not this crime.
Punishment Ranges for Tampering with Evidence
| Situation | Offense Level | Punishment Range |
|---|---|---|
| Altering, destroying, concealing, or fabricating evidence | 3rd Degree Felony | 2–10 years prison; up to $10,000 |
| Tampering where the evidence is a human corpse | 2nd Degree Felony | 2–20 years prison; up to $10,000 |
How Tampering with Evidence Cases Are Defended
Because the statute requires both knowledge and intent, those are the pressure points. Did you actually know an investigation was pending? Did an officer even see the alleged act, or is it an inference? Could the "destruction" have been accidental or ambiguous? Brian scrutinizes the body-camera and dash-camera video, the officer's vantage point, and the timeline to challenge whether the State can prove a knowing, intentional act. Tampering is often paired with drug possession, evading arrest, or DWI charges, and release terms are set through bond conditions.