RANSIER, CHARLES ROBERT v. the State of Texas ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0289-20
CHARLES ROBERT RANSIER, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
COMAL COUNTY
KELLER, P.J., delivered the opinion of the Court in which HERVEY,
RICHARDSON, KEEL, SLAUGHTER and MCCLURE, JJ., joined. KEEL, J., filed a
concurring opinion in which SLAUGHTER, J., joined. YEARY, J., filed a dissenting
opinion. NEWELL, J., filed a dissenting opinion. WALKER, J., dissented.
OPINION
During an investigation at the side of the road, DPS Trooper David Kral noticed something
in Appellant’s hand. Trooper Kral later discovered that the item was a syringe. Appellant was
charged with tampering with evidence for, among other things, concealing the syringe. The court
of appeals concluded that the lesser-included offense of attempted tampering was raised because
“from the point [the trooper] saw appellant with the syringe in his hand until the time he got him to
RANSIER — 2
the ground, he knew where the syringe was the whole time.”1 We conclude that the court of appeals
did not look back far enough in time because Trooper Kral testified that, before he saw the syringe,
Appellant was concealing it from him, and there was no evidence from any source suggesting
otherwise. Consequently, we reverse the judgment of the court of appeals.
I. BACKGROUND
A. The Incident and Trial
In March 2015, DPS Trooper Kral saw a truck parked beside a children’s slide on the side
of the road and stopped to investigate. Appellant refused Trooper Kral’s request for permission to
search the truck, but Appellant ultimately agreed to remove items from the truck himself. At some
point, Trooper Kral noticed something in Appellant’s hand. Appellant “was trying to make some
kind of movement and basically shoving his right hand underneath the driver’s side seat.” As the
trooper repositioned himself to see what Appellant was holding, he saw that it was a syringe and that
Appellant was trying to break the needle off with his thumb and shove the syringe under the seat.
Trooper Kral ordered Appellant to drop the item and get away from the truck. When Appellant
ignored the command and continued his effort to break and hide the syringe, the trooper grabbed him
by the shoulder and the arm and ripped him away from the truck. Appellant fell to the ground and
the syringe fell about two feet away. Trooper Kral noticed at that time that the syringe was broken.
The event was captured on the trooper’s bodycam video.
During direct examination at trial, the prosecutor asked, “At some point did something
happen that caused you some concern or something unusual? Tell us about how that was going.”
Trooper Kral’s response included talking about when he first saw the syringe in Appellant’s hand:
1
Ransier v. State, 594 S.W.3d 1, 10 (Tex. App.—Houston [14th Dist.] 2019).
RANSIER — 3
And so I was just watching his hands, watching his movements. And at one point I
couldn’t necessarily tell what was in his right hand. And he was trying to make some
kind of movement and basically shoving his right hand underneath the driver’s side
seat. So whenever he started doing that, I started rearranging my body, bending over,
coming back up, bending over, going to the side. And I said -- I asked him, “What’s
in your right hand specifically?[”] He didn’t answer me. He just kept -- it almost
looked like he was getting more desperate as far as trying to get it under there. And
at one point -- at some point whenever I bent over, I noticed what it was in his hand.
It was a syringe.
On cross-examination, defense counsel questioned Trooper Kral about the syringe after he
saw it in Appellant’s hand:
Q. Now, when you were -- from the point that you saw Mr. Ransier with the syringe
in his hand until the time you got him to the ground, would it be fair to say that you
knew where that syringe was the whole time?
A. From the -- from the interaction that I had with him?
Q. Yes.
A. And to the point that we went to the ground?
Q. Yes.
A. Yes.
Q. Okay. And would it also be fair to say that since the syringe was in his hand, that
it was partially concealed from you so you couldn’t really see the full condition of it
while it was in his hand? Would that be fair to say?
A. Yes, sir.2
On redirect examination, the prosecutor asked Trooper Kral if he had reviewed the video, and
he said that he had. The prosecutor then asked about the syringe before Trooper Kral saw it:
Q. Can you actually see yourself leaning over a couple of times trying to see what he
is doing?
2
Emphasis added.
RANSIER — 4
A. Yes, sir.
Q. And at that point, could you tell he had something in his hand he was trying --
concealing from you?
A. Without a doubt.
Q. And eventually you said you were able to lean over and caught a glimpse that it
was a syringe?
A. Yes, sir.
Q. But up until that point, did he conceal that syringe from you?
A. Yes, sir.3
The indictment charged Appellant with tampering with evidence by altering, destroying, or
concealing the syringe. The jury charge included the indictment’s three theories of tampering, and
Appellant requested the submission of the lesser-included offense of attempt to tamper with
evidence. That request was denied, and Appellant was convicted of tampering with evidence.
B. Appeal
The court of appeals recognized that Appellant’s entitlement to a lesser-included offense
depended on him raising the lesser-included offense with respect to all three of the State’s theories
of tampering.4 But the appellate court found that the evidence did raise the lesser-included offense
with respect to all three of the State’s theories.5 Regarding the concealment theory, the court of
appeals focused on what happened after Trooper Kral saw the syringe:
With respect to whether appellant concealed the syringe, Kral testified that he was
3
Emphasis added.
4
Id. at 8.
5
Id. at 9-12.
RANSIER — 5
watching appellant remove items from appellant’s truck and from the point he saw
appellant with the syringe in his hand until the time he got him to the ground, he
knew where the syringe was the whole time. Kral agreed that while the syringe was
in appellant’s hand, it was only partially concealed. This testimony refutes or negates
other evidence that appellant concealed the syringe.6
Later in its opinion, the court of appeals said there was evidence that the syringe was never fully
concealed:
With respect to concealment of the syringe, although there was ample evidence of
appellant’s attempt to shove the syringe under the seat and defendant admitted, “that
was the intention,” there was also evidence that the syringe was never fully
concealed, and as such, the attempt to conceal the syringe by shoving it under the seat
was never completed.7
II. ANALYSIS
A defendant is entitled to submission of a lesser-included offense only if the following two-
pronged test is satisfied: (1) the requested lesser offense is in fact a lesser-included offense of the
charged offense, and (2) there is some evidence in the record that would permit the a jury to
rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense.8 When
the jury is instructed on alternate theories of the charged offense, the second prong of the test is
satisfied only if “there is evidence which, if believed, refutes or negates every theory which elevates
6
Id. at 10.
7
Id. at 11. Justice Jewell dissented, contending that there was no evidence to show that
Appellant only attempted to alter or destroy the syringe because the evidence shows he broke it and
there was no evidence to show that he only attempted to break it. Id. at 14-20 (Jewell, J., dissenting).
In a supplemental opinion, the court of appeals majority rejected the State’s arguments in a motion
for rehearing that, no matter how the syringe was broken, Appellant was liable under the law of
parties or the doctrine of concurrent causation. Id. at 20-22 (op. on reh’g).
8
Bullock v. State, 509 S.W.3d 921, 924-25 (Tex. Crim. App. 2016). See also Rousseau v.
State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).
RANSIER — 6
the offense from the lesser to the greater.”9
As a matter of law, attempted tampering with evidence is a lesser-included offense of
tampering with evidence,10 so the issue in this case is the second prong, whether there is evidence,
under all three theories of tampering, that Appellant is guilty only of attempted tampering.
Concluding that the court of appeals was mistaken about the existence of evidence to show only
attempted concealment, we hold that the second prong was not met.
The court of appeals reads too much into Trooper Kral’s testimony about the syringe being
partially concealed. On direct examination, Trooper Kral explained that he had to reposition his
body to see what Appellant was holding. On cross-examination, the trooper testified that the syringe
was only partially concealed after he first saw it. On redirect examination, the trooper made it clear
that Appellant was fully concealing the syringe from the trooper before the trooper first saw it. There
is no conflict between any of this testimony, and we are aware of no other testimony suggesting that
the syringe was only partially concealed from the trooper. We conclude that there was evidence that
Appellant fully concealed the syringe from Trooper Kral during the time that he first noticed that
Appellant had something in his hand but before the trooper first saw syringe, and there was no
evidence suggesting otherwise.
Absent some evidence negating full concealment, Appellant has not raised the lesser-included
offense of attempted concealment. “[I]t is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense, but rather there must be some evidence directly germane to the
9
Ritcherson v. State, 568 S.W.3d 667, 671 (Tex. Crim. App. 2018).
10
See TEX. CODE CRIM. PROC. art. 37.09(4) (“An offense is a lesser included offense if . .
. it consists of an attempt to commit the offense charged or an otherwise included offense.”).
RANSIER — 7
lesser-included offense for the finder of fact to consider before an instruction on a lesser-included
offense is warranted.”11 Unless the evidence presented is subject to different interpretations
consistent with either the greater or lesser-included offenses, evidence directly germane to a lesser-
included offense exists only if there is “affirmative evidence that both raises the lesser-included
offense and rebuts or negates an element of the greater offense.”12
The present case is like Chavez, where we held that evidence that the defendant did not have
the requisite mental state for murder at the time the victims were kidnapped did not negate his having
the requisite mental state later, at the time of the killings.13 Similarly, evidence that Appellant
partially concealed the syringe after Trooper Kral saw it was a syringe does not negate Appellant
having fully concealed the syringe earlier, when Trooper Kral saw that Appellant was holding
something but could not see what it was. Consequently, the record fails to meet the “guilty only”
prong of the test with respect to the concealment theory of the offense. Appellant was not entitled
to submission of the lesser offense of attempted tampering.
Appellant contends that Bullock supports the submission of a lesser-included offense in his
case. He argues that Bullock allows a lesser-included offense to be submitted based on the jury’s
ability to disbelieve evidence (in this case, inculpatory evidence showing a completed offense). We
11
Bullock, 509 S.W.3d at 925.
12
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).
13
See Chavez v. State, 666 S.W.3d 772, 777-78 (Tex. Crim. App. 2023) (Evidence that there
was no agreement to kill the victims at the time of the kidnappings and that an accomplice was the
first to come up with the idea to kill the victims is not directly germane to the defendant’s state of
mind at the time of the murders.). See also id. at 780 (Newell, J., concurring) (“Disbelieving a
witness whose testimony establishes an element of a greater offense is not the same thing as
believing some testimony that affirmatively negates an element of a greater offense.”).
RANSIER — 8
do not read Bullock that expansively.
The Bullock court specifically said that it was not enough that the jury could disbelieve
“crucial evidence pertaining to the greater offense.”14 In our recent opinion in Chavez, we said that
mere disbelief of evidence “establishing commission of the greater offense” is insufficient by itself
to justify submission of a lesser offense.15 These are references to inculpatory evidence of the
greater offense. Under Bullock and Chavez, the possibility that inculpatory evidence could be
disbelieved is not enough to raise a lesser-included offense.
Unlike in the present case, the pertinent evidence in Bullock was exculpatory. There, the
defendant testified that he did not intend to steal the truck, and he also testified that he never
exercised control over the truck.16 Both of these items of testimony were exculpatory, not
inculpatory. If the jury believed that he didn’t intend to steal the truck, then it would have to acquit
him. But if the jury believed that he intended to steal the truck but never exercised control over it,
then it could find him guilty only of the lesser offense of attempted theft of the truck.17 His
testimony that he did not exercise control over the truck was affirmative evidence negating the
element required for the greater, completed offense.18
Here, though, there was no exculpatory evidence to believe or disbelieve; there was only
14
509 S.W.3d at 925.
15
See Chavez, 666 S.W.3d at 777.
16
Bullock, 509 S.W.3d at 923, 926 (“failed to exercise control over the truck, based on his
testimony that he did not press the gas or brake pedals or try to start or move the truck”).
17
Id. at 926.
18
Id.RANSIER — 9
inculpatory evidence. The evidence that Appellant fully concealed the syringe was inculpatory. And
the evidence that he partially concealed the syringe later in the encounter was also inculpatory, not
exculpatory, because it was not evidence that he never fully concealed the syringe. It was evidence
of additional criminality, not evidence of lesser criminality. So there was no exculpatory evidence
to be believed in this case, only the possibility of disbelieving inculpatory evidence. As in Chavez,
mere disbelief of inculpatory evidence is not sufficient to raise a lesser-included offense.
We reverse the judgment of the court of appeals and remand the case to it to address
Appellant’s remaining issue.
Delivered: June 28, 2023
Publish