Tossing a baggie out the window can carry more prison exposure than what was in the baggie. Prosecutors know it — tampering exists in most cases as leverage, and taking the leverage away is the defense job.
Charge: Tampering with or Fabricating Physical Evidence — Penal Code § 37.09
Level: Third-degree felony
Range: 2 – 10 years prison, fine to $10,000
Court: District court in the county of arrest
How these cases play out in Central Texas courts
The elements are stricter than the charging pattern: the state must prove you knew an investigation was pending or in progress and acted specifically to impair evidence’s availability. Reflexive movements during a stop, ambiguous gestures on video, abandonment before any investigation existed, and evidence recovered fully intact all cut against the elements. Swallowing cases add proof problems of their own. When the tampering count falls, the remaining case usually shrinks to a misdemeanor — which reorders every negotiation.
Questions we hear about this charge
I dropped it before the officer said anything — tampering?
Timing is an element: an investigation must be pending or in progress, and you must know it. Pre-investigation abandonment doesn’t fit the statute.
They recovered everything intact — how was it ‘impaired’?
Good question — recovery undercuts impairment, and courts have wrestled with exactly this. It’s a genuine element fight, not a technicality.
Why is the tampering worse than the drug charge?
Because leverage works — a third-degree felony stacked on a Class B possession reorders plea talks. Defeating the tampering count is usually the case’s turning point.
Facing a TAMPER/FABRICATE PHYS EVID charge?
The first weeks decide what’s possible — evidence preservation, bond terms, and early litigation posture. Criminal defense in Travis, Hays, Williamson, Bexar, and Bastrop counties is provided by Stephen T. Bowling, DWI & Criminal Defense Attorneys — former police officers who know how these cases are built. Free consultation, 24/7, flat-fee quote included.
General Texas legal information, not legal advice for your specific case. Enhancements, priors, and case facts change punishment exposure. Last reviewed July 2026.