Opinion
NO. 14-17-00580-CR NO. 14-17-00581-CR
07-16-2019
Charles Robert RANSIER, Appellant v. The STATE of Texas, Appellee
The Supreme Court of Texas ordered this case transferred from the Court of Appeals for the Third Court of Texas to this court. Misc. Docket. No. 17-9066 (Tex. June 20, 2017); see Tex. Gov't Code Ann. §§ 73.001, .002. Because of the transfer, we decide the case in accordance with the precedent of the transferor court under principles of stare decisis—if our decision otherwise would have been inconsistent with the transferor court's precedent. See Tex. R. App. 41.3.
A jury convicted appellant Charles Robert Ransier and assessed punishment at life in prison for tampering with a syringe. Tex. Penal Code Ann. § 37.09 (trial court cause number CR2016-303 and appellate case number 14-17-00580-CR). The same jury also convicted and sentenced appellant to twenty-years confinement on a charge of possession of a controlled substance, less than one gram. Tex. Health & Safety Code Ann. § 481.115(a) (trial court cause number CR2017-004 and appellate case number 14-17-00581-CR). Appellant argues that the trial court erred by (1) admitting evidence that appellant was an "ex-con" in the guilt/innocence phase of trial and (2) by denying his request for a jury instruction on a lesser-included offense. We affirm the trial court's judgment on possession of a controlled substance because appellant conceded possession of a controlled substance at trial. We reverse the trial court's judgment on tampering with physical evidence and remand the case to the trial court for further proceedings because appellant was entitled to a lesser-included instruction.
I. BACKGROUND
In March 2015, DPS Trooper Kral was on patrol when he noticed a children's slide sitting on the side of the road. Later the same day, Kral noticed the slide had been moved and a truck was parked beside it. Kral decided to investigate.
After approaching the truck, Kral saw appellant and asked him if he could search the truck. Appellant agreed to remove items from the truck. While appellant was removing items, Kral stood alongside the truck and observed. Kral watched appellant's hands and his movements and noticed that appellant was "trying to make some kind of movement and basically shoving his right hand underneath the driver's side seat." Appellant had a syringe in his hand and was trying to break the syringe and shove it underneath the seat.
Kral asked appellant, "Hey, what's in your right hand?" Kral ordered, "Hey get back over here," and "Get back away from the car." Appellant did not comply with Kral's commands and continued "trying to break [the syringe] and shove it under the seat." Struggle ensued as Kral again stated, "Back away from the car." Kral grabbed appellant by the shoulder and forced him out of the truck. Appellant fell to the ground. On the ground, appellant still held the syringe, but tried to throw it aside. The syringe landed about two feet from appellant. Kral got on top of appellant and put appellant in handcuffs.
Appellant was arrested and taken to the police department, where he was interviewed by Kral and Texas Ranger Jones. In appellant's recorded interview, Kral asked appellant, "[w]hen you were going after that syringe, were you trying to break it or trying to get rid of it?" Appellant responded, "That was the intention, yes sir." Later, appellant further responded, "Look, I'm an ex-con. I'm not going to tell—hey man, this is [inaudible] dope in here."
Liquid was removed from the syringe and tested in the DPS crime lab. The testing determined the liquid was methamphetamine.
Appellant was subsequently indicted for tampering with physical evidence and possession of a controlled substance, less than one gram. Appellant was tried on both charges in one trial.
On direct-examination at trial, Kral testified that, initially, he "couldn't necessarily see what was in appellant's right hand," but then realized it was a syringe. Kral testified that when he recovered the syringe after appellant tossed it away, the tip of it was broken off. Kral further testified that appellant concealed the syringe from him, appellant "altered" the syringe by moving it, and appellant also altered the syringe by breaking it.
During Kral's direct-examination, the State presented the portion of appellant's recorded interview in which appellant admitted to trying to break or get rid of the syringe and identified himself as an ex-con.
On cross-examination, Kral conceded he had no knowledge of the condition of the syringe prior to noticing it in appellant's hand. Kral did not know how the needle was connected to the syringe. Kral acknowledged that he did not find the tip of the syringe and did not take pictures of it. Kral admitted that in his report on the incident he did not state that appellant broke the syringe, and in appellant's four-hour recorded video, Kral never said appellant broke the syringe. Kral testified that he could not determine whether appellant's falling to the ground after being thrown caused the needle to break off. Kral agreed that 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 also agreed that while the syringe was in appellant's hand, it was only partially concealed.
After the close of evidence, appellant asked the trial court for a lesser-included instruction on attempted tampering. The trial court denied the request.
During closing arguments, appellant's trial counsel admitted appellant was guilty of possession of a controlled substance, stating "I am going to tell you right off the bat we concede on the possession of a controlled substance. He had it in his hand. You know, he knew there was something in there, we're conceding that." Regarding tampering with physical evidence, he argued appellant was not guilty. Appellant's trial counsel urged the jury, "At best it is an attempt at tampering, but you don't have attempt at tampering in front of you."
The jury convicted appellant on both possession of a controlled substance and tampering with physical evidence. After reviewing extensive evidence of appellant's past criminal history during the punishment phase of trial, the jury gave appellant the maximum imprisonment on each of his charges, both enhanced by prior felony convictions—life in prison for tampering and twenty-years confinement for possession.
II. ANALYSIS
We do not address appellant's first issue in which appellant asserts the trial court erred by admitting evidence that appellant was an "ex-con" for two reasons. With respect to the possession case against appellant, we do not address the issue because appellant's trial counsel unequivocally conceded guilt on the possession charge during closing arguments at trial. With respect to the tampering case against appellant, we do not reach the issue because of our disposition of appellant's second issue (reverse and remand for further proceedings). See Tex. R. App. P. 47.1.
In his second issue, appellant contends that the trial court erred in refusing to submit his requested instruction regarding the lesser-included offense of attempted tampering with evidence. As an initial matter, we address the State's contention that appellant waived this point of error. The State contends appellant waived error because, when the trial court asked if there were any objections to the charge, appellant responded, "No objection." We disagree.
"[W]hen assessing the meaning of an attorney's statement that he or she has ‘no objection’ in regard to a matter that may have been previously considered and ruled upon, courts should first ask whether ‘the record as a whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his "no objection" statement to constitute an abandonment of a claim of error that he had earlier preserved for appeal.’ " Stairhime v. State , 463 S.W.3d 902, 906 (Tex. Crim. App. 2015) (quoting Thomas v. State , 408 S.W.3d 877, 885 (Tex. Crim. App. 2013) ). If, after applying the test, it remains ambiguous whether abandonment was intended, then we must resolve the ambiguity in favor of finding waiver. Stairhime , 463 S.W.3d at 906.
The record plainly demonstrates that appellant did not intend, and neither the trial court nor the State could have construed, his "no objection" statement to constitute an abandonment of his request for a lesser-included instruction. Immediately before the trial court asked if there were any objections to the charge, appellant strongly advocated for a lesser-included instruction and the trial court denied his request. Appellant then suggested that the denial could be error, and in response, the prosecutor indicated he would "deal with it" on appeal:
The Court: No. Denied.
[Defense counsel]: On attempted, really? Okay.
....
The Court: If it is in error not to give attempting—
[Defense counsel]: I think you're going to—that could be a problem, judge.
[State]: I don't think it is a problem at all. I will be happy to deal with it.
The Court: All right.
(Off the Record)
The Court: Let the record reflect the defendant is present with counsel, D.A. is present. The State has proposed a charge of the court. I made one typographical change on page two. Inserting the word "upon" instead of "on" in line two of paragraph F. And nobody—are there any objections to the charge with that change by the State?
[Prosecutor]: No, sir.
The Court: By the defense?
[Defense counsel]: No objection.
During closing arguments, appellant's trial counsel continued to argue that appellant's actions constituted attempted tampering, not tampering.
The proximity of the trial court's denial of appellant's request to the trial court's call for objections to the charge, the discussion between the court and counsel in which the State expressed eagerness to "deal with" the issue on appeal, and appellant's emphasis on attempted tampering in closing argument plainly show that appellant did not intend to abandon his request. His "no objection" statement did not constitute an abandonment of his request for an instruction on attempted tampering. See id. We proceed to address the merits of the issue.
To determine whether the trial court was required to give a requested charge on a lesser-included offense, we use a two-step test. Bullock v. State , 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). First, we determine whether the requested instruction pertains to an offense that is a lesser-included offense of the charged offense. Id. The State does not dispute that attempted tampering with evidence is a lesser-included offense to tampering with evidence. See Tex. Code Crim. Proc. Ann. 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."). Accordingly, the first step of the test is satisfied.
Second, we assess whether evidence in the record supports giving an instruction on the lesser-included offense to the jury. Bullock , 509 S.W.3d at 924–25. A defendant is entitled to such an instruction when there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Id. at 925. "The evidence must establish that the lesser included offense is a valid, rational alternative to the charged offense." Id.
The second step requires examining all the evidence admitted at trial. Id. "However, we may not consider the credibility of the evidence and whether it conflicts with other evidence or is controverted." Id. (quoting Goad v. State , 354 S.W.3d 443, 446–47 (Tex. Crim. App. 2011) ). Anything more than a scintilla of evidence is adequate to entitle a defendant to a lesser charge. Sweed v. State , 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). However, there must be some evidence directly germane to the lesser-included offense. Roy v. State , 509 S.W.3d 315, 317 (Tex. Crim. App. 2017) ; Cavazos v. State , 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). The second step may be satisfied if some evidence refutes or negates other evidence establishing the greater offense or if the evidence presented is subject to different interpretations. Sweed , 351 S.W.3d at 68.
If the jury is charged on alternate theories, the second prong of the lesser-offense test is met "only if there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater." Ritcherson v. State , 568 S.W.3d 667, 671 (Tex. Crim. App. 2018) (quoting Arevalo v. State , 970 S.W.2d 547, 549 (Tex. Crim. App. 1998) (per curiam)). "Only if every theory properly submitted is challenged would the jury be permitted to find the defendant guilty only of the lesser offense." Arevalo , 970 S.W.2d at 549. This does not mean an appellant must challenge every factual theory put forward by the State; rather, appellant must challenge every statutory theory which elevates the offense from the lesser to the greater offense. In Stadt v. State , this court noted that in " Arevalo [ ] and in other cases stating that principle, the ‘alternate theories’ were statutory theories elevating the offense from the lesser to the greater offense." 120 S.W.3d 428, 440 (Tex. App.—Houston [14th Dist.] 2003) aff'd , 182 S.W.3d 360 (Tex. Crim. App. 2005). Indicating approval of this court's holding in Stadt , the Criminal Court of Appeals similarly held:
The question before us is not whether there was some evidence presented at appellant's trial that would permit a rational jury to find that he was not guilty of each and every alternate theory of manslaughter alleged in the indictment but whether there was some evidence presented at appellant's trial that would permit a rational jury to find that he possessed the culpable mental state of criminal negligence rather than recklessness.
Stadt v. State , 182 S.W.3d 360, 364 (Tex. Crim. App. 2005).
Penal Code section 37.09(a)(1) defines the offense of tampering with physical evidence as follows: (1) knowing that an investigation or official proceeding is pending or in progress; (2) a person alters, destroys, or conceals any record, document, or thing; (3) with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding. Tex. Penal Code Ann. § 37.09(a)(1) ; Rabb v. State , 434 S.W.3d 613, 616 (Tex. Crim. App. 2014).
Penal Code section 37.09(d)(1) alternatively defines the offense of tampering with physical evidence as: (1) knowing that an offense has been committed; (2) a person alters, destroys, or conceals any record, document, or thing; (3) with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense. Tex. Penal Code Ann. § 37.09(d)(1).
A person commits an attempt if, "with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Penal Code Ann. § 15.01(a).
Appellant asserts that he was entitled to an instruction on the lesser-included offense of attempted tampering with evidence because a rational jury could have found that, if appellant was guilty, he was only guilty of attempted tampering with physical evidence. Appellant makes this argument with respect to each alternative statutory theory on which the jury was charged. Appellant argues that a jury could have rationally found him only guilty of attempted tampering with regard to altering the syringe. Appellant argues that a jury could have rationally found him only guilty of attempted tampering with regard to destroying the syringe. Appellant argues that a jury could have rationally found him only guilty of attempted tampering with regard to concealing the syringe. We agree. Appellant shows more than a scintilla of evidence directly germane to attempted tampering was presented at trial.
We do not agree with the dissent's suggestion that we need not address appellant's arguments because appellant did not challenge on appeal the State's theory that appellant altered the syringe by moving it. The dissent points out that, at trial, the State argued that appellant altered the syringe by breaking the needle from the barrel or changing the physical location of the syringe, and on appeal, appellant does not address the argument that appellant altered the syringe by changing the physical location of the syringe. While appellant is required to show there is some evidence presented at trial that would permit a rational jury to find that he did not alter the syringe, appellant is not required to challenge every factual theory concerning its alteration on appeal. See Stadt , 120 S.W.3d at 440.
Moreover, appellant's burden to show entitlement to a lesser-included instruction is evidentiary—to show some evidence presented at trial would permit a rational jury to conclude he was only guilty of the lesser-included offense. The evidence concerning appellant's movement of the syringe is undisputed. The State's argument in this regard is not evidentiary; rather, the State contends that movement constitutes alteration as a matter of law. Consequently, we do not agree with the dissent that appellant was required to set forth some evidence refuting or negating the fact that appellant moved the syringe.
With respect to altering and destroying, circumstantial evidence existed from which the jury could have reasonably inferred that appellant did not break the syringe. Kral testified that he had no knowledge of the condition of the syringe prior to noticing it in appellant's hand, and after he noticed it in appellant's hand, Kral still could not tell the full condition of the needle. Kral testified that appellant fell to the ground with the syringe in his hand after Kral pulled him away from the truck. Kral testified that he could not determine whether appellant's falling to the ground after being thrown caused the needle to break off. In his report of the incident, Kral did not state that appellant broke the syringe. A rational jury could have believed Kral's affirmative testimony that he had no knowledge regarding the condition of the syringe, he did not document the condition of the syringe or needle, and he did not know whether the needle was broken by appellant's fall. A rational jury could have believed Kral's testimony that appellant fell to the ground with the syringe in his hand and reasonably inferred that that the syringe was broken by the fall. In addition, in appellant's recorded interview, Kral asked appellant, "[w]hen you were going after that syringe, were you trying to break it or trying to get rid of it?" (emphasis added). Appellant responded, "that was the intention, yes sir." A rational jury could have reasonably inferred that Kral questioned appellant about "trying" to break the syringe and "trying" to get rid of syringe because appellant had failed to break or get rid of the syringe. This evidence refutes or negates other evidence that appellant altered or destroyed the syringe.
The State contends that even if Kral throwing appellant to the ground caused the syringe to break, appellant would be criminally responsible for tampering with evidence. The State has not cited any authority, and we have found none, supporting this argument.
With respect to whether appellant concealed the syringe, Kral testified that he was 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.
The State responds that appellant was not entitled to a lesser-included instruction because the evidence shows (1) appellant "actually broke" the syringe, (2) appellant concealed the syringe by holding it in his hand and under the seat, and (3) appellant altered the syringe by moving its location. The dissent concludes the trial court's ruling is supported by the State's first theory. We are not persuaded by the State's theories or the reasoning of the dissent. The State and the dissent point to several pieces of evidence from which a jury could have concluded that appellant was guilty of the greater offense, but this evidence the State and the dissent point to is not dispositive. See Goad , 354 S.W.3d at 448. At most, it would contradict the theory that appellant attempted to but did not tamper with evidence. See id.
The State cites Hines v. State , 535 S.W.3d 102, 110 (Tex. App.—Eastland 2017, pet. ref'd) ; Stuart v. State , No. 03-15-00536-CR, 2017 WL 2536863, at *4 (Tex. App.—Austin June 7, 2017, no pet.) (mem. op., not designated for publication); Munsch v. State , No. 02-12-00028-CR, 2014 WL 4105281, at *6 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for publication); and Gaitan v. State , 393 S.W.3d 400, 401–02 (Tex. App.—Amarillo 2012, pet ref'd), in support of its argument that appellant concealed the syringe. These cases are inapposite as they involve review of the sufficiency of the evidence on a tampering conviction, not the trial court's denial of an appellant's request for a lesser-included instruction. See infra pp. 11–13.
Even if the jury could have rationally concluded appellant did destroy, conceal, or alter the syringe, that is not the proper standard of our analysis. See id. at 449; see also Ritcherson , 568 S.W.3d at 676 ("The issue is not whether a rational jury could have found Appellant guilty of murder; it is whether a jury could have reasonably interpreted the record in such a way that it could find Appellant guilty of only manslaughter."); Wortham v. State , 412 S.W.3d 552, 558 (Tex. Crim. App. 2013) ("The court of appeals' and the State's reliance on the overwhelming medical evidence presented in this case is in error."). We must review the totality of the evidence "without reference to the credibility of the evidence or whether that evidence is controverted or conflicting." Bullock , 509 S.W.3d at 929 ; see also Ritcherson , 568 S.W.3d at 676 (citing Thomas v. State , 699 S.W.2d 845, 859 (Tex. Crim. App. 1985) (Teague, J., dissenting), for proposition that when determining whether defendant is entitled to instruction on lesser-included offense, facts should be viewed in light most favorable toward submitting lesser-included offense). When, as here, the record provides more than a scintilla of evidence from which the jury could have rationally determined that the defendant was guilty only of a lesser-included offense, then the defendant is entitled to a jury charge on that lesser offense. Bullock , 509 S.W.3d at 929. "This is true even if such a determination would require the jury to believe only portions of certain witnesses' testimony." Id. "[I]t is the jury's province to decide which parts of this evidence to believe." Id.
In this case, evidence concerning the condition of the needle prior to the struggle between Kral and appellant was conflicting, there was evidence that appellant fell to the ground with the needle in his hand, and appellant was questioned about his attempt to break or get rid of the syringe; thus, there was some evidence that appellant did not successfully alter or destroy the syringe by breaking the needle from the barrel or moving its location. Citing Cavazos , 382 S.W.3d at 385, the dissent concludes that the evidence regarding the condition of the needle is not affirmative evidence. The dissent also concludes that Kral's testimony that he could not determine whether appellant's falling to the ground after being thrown caused the needle to break off is not affirmative evidence. We respectfully disagree with these characterizations. While we do not consider such evidence direct evidence that the syringe was not intact before the encounter or that the needle was broken by appellant's fall, we do consider it affirmative circumstantial evidence from which a rational jury could reasonably have inferred as much. See also Ritcherson , 568 S.W.3d at 676–77 (holding Cavazos distinguishable as Cavazos involved defendant who shot victim twice and noting statement regarding inference in Cavazos "improperly focuse[d] on whether the evidence was sufficient to prove an element of the greater crime."). The dissent also states that evidence Kral did not state in his report that appellant broke the needle is evidence meant to discredit Kral's testimony as to the greater offense, and as such, is not enough to support the lesser-included offense; however, this is not the only evidence supporting the lesser-included offense. Along with the affirmative evidence that appellant fell to the ground with the syringe in his hand, Kral's affirmative testimony that he did not know the condition of the needle prior to appellant's fall and that he could not determine whether appellant's falling to the ground after being thrown caused the needle to break off is some evidence that appellant did not successfully alter or destroy the syringe by breaking the needle from the barrel.
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. Consequently, we conclude there was more than a scintilla of evidence that appellant had "specific intent to commit an offense[, and executed] an act amounting to more than mere preparation that tend[ed] but fail[ed] to effect the commission of the offense intended." Tex. Penal Code Ann. § 15.01(a) ; see Bullock , 509 S.W.3d at 925. Any breakage, concealment, or alteration following the struggle was incidental to the struggle and at least arguably involuntary as to appellant.
The State cites Burks v. State , No. PD-0992-15, 2016 WL 6519139, at *6–7 (Tex. Crim. App. Nov. 2, 2016) (mem. op., not designated for publication); Carnley v. State , 366 S.W.3d 830, 834–35 (Tex. App.—Fort Worth 2012, pet. ref'd) ; and Ramos v. State , 351 S.W.3d 913, 914–15 (Tex. App.—Amarillo 2011, pet. ref'd), in support of its argument that appellant altered the syringe by moving its location. Each of these cases involves the sufficiency of the evidence on a tampering conviction; none involves the trial court's denial of an appellant's request for a lesser-included instruction. These cases are inapposite to review of the denial of appellant's request for a lesser-included instruction because the standard in sufficiency cases conflicts with the standard we apply here. See Ritcherson , 568 S.W.3d at 676 ("The court of appeals ... appears to have applied legal-sufficiency law instead of lesser-included-offense law. In that respect the court of appeals erred."). When reviewing sufficiency, we review evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). When reviewing the denial of a lesser-included instruction, we consider whether there is more than a scintilla of evidence to entitle a defendant to a lesser charge; we do not consider whether the evidence supports the verdict on the greater charge. See Sweed , 351 S.W.3d at 68.
Moreover, we do not agree with the premise underlying the State's argument, that moving evidence constitutes alteration in every instance. "Alter" is not defined by the statute, see Tex. Penal Code Ann. § 37.09, and jurors are free to interpret undefined statutory language to have "any meaning which is acceptable in common parlance." State v. Bolles , 541 S.W.3d 128, 138 (Tex. Crim. App. 2017) (quoting Kirsch v. State , 357 S.W.3d 645, 650 (Tex. Crim. App. 2012) ); see Code Construction Act, Tex. Gov't Code Ann. § 311.011(a) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."). Merriam-Webster defines alter as "to make different without changing into something else." Alter , MERRIAM-WEBSTER ONLINE DICTIONARY , available at https://www.merriam-webster.com/dictionary/alter (last visited July 8, 2019). Dictionary.com defines alter as "to make different in some particular, as size, style, course, or the like; modify." Alter , DICTIONARY.COM , available at https://www.dictionary.com/browse/alter (last visited July 8, 2019). The jury charge in this case did not define "alter" or make any reference to evidence being moved. See Arteaga v. State , 521 S.W.3d 329, 334 (Tex. Crim. App. 2017) ("If a word or a phrase is not defined, the trial court may nonetheless define them in the charge if they have an established legal or technical meaning."). The jury could have reasonably concluded the syringe, although moved, was not altered.
Burks , Carnley , and Ramos do not require otherwise. Again, none of these cases involved a defendant's request for a lesser-included instruction. Instead, each of these cases involved a challenge to the sufficiency of the evidence on a tampering conviction. See generally Burks , 2016 WL 6519139 ; Carnley , 366 S.W.3d 830 ; Ramos , 351 S.W.3d 913. So the court in each of these cases reviewed the evidence in the light most favorable to the verdict to determine whether "any rational trier of fact could have found" the evidence was altered. See Burks , 2016 WL 6519139, at *5 ; Carnley , 366 S.W.3d at 833 ; Ramos , 351 S.W.3d at 915. And in Burks , Carnley , and Ramos , the courts did determine that movement of the evidence (a car, a corpse, and a corpse, respectively) constituted sufficient evidence that the evidence was altered. Burks , 2016 WL 6519139, at *6–7 ; Carnley , 366 S.W.3d at 835–36 ; Ramos , 351 S.W.3d at 915. The Ramos court noted the plain meaning of alter as, "to change or make different" and stated that it did not "see any reason why the act of physically manipulating potential evidence of a crime should not be encompassed with that definition." Ramos , 351 S.W.3d at 915.
We agree that in many instances, movement of evidence may constitute sufficient evidence that evidence has been altered. We do not agree that movement of evidence conclusively proves alteration of evidence, particularly when, as here, the evidence is not to be reviewed in the light most favorable to the verdict. Consequently, we conclude the evidence in this case was susceptible to different interpretations regarding whether appellant altered evidence. The jury could have rationally believed that appellant was guilty of attempted tampering and not tampering. The trial court erred in denying the request for a charge on the lesser-included offense of attempted tampering with evidence.
Although we do not rely on sufficiency cases in reviewing the denial of a lesser-included instruction because of the significantly different standard of review, we nonetheless note that even in a recent sufficiency case, one appellate court determined movement was not sufficient to support the conclusion that evidence has been altered. In Stahmann v. State , the Thirteenth Court of Appeals determined that the evidence to support alteration was insufficient where the defendant tossed a prescription bottle out of his car and over a fence. 548 S.W.3d 46, 54–55 (Tex. App.—Corpus Christi-Edinburg 2018, pet. granted). The Court of Criminal Appeals granted the State's petition for discretionary review in that case, heard argument on March 6, 2019, and the case remains pending before the Court of Criminal Appeals.
Having found error in the trial court's denial of the requested instruction on the lesser-included offense, we must determine whether that error requires reversal. The erroneous refusal to give a requested instruction on a lesser-included offense is charge error subject to an Almanza harm analysis. Sweed , 351 S.W.3d at 69–70 ; see Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Under Almanza , when jury-charge error has been preserved, as it was in this case, we will reverse if the error in the court's charge resulted in some harm to the accused. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) ; see Almanza , 686 S.W.2d at 171.
"[T]he harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer." Masterson v. State , 155 S.W.3d 167, 171 (Tex. Crim. App. 2005). Ordinarily, if the absence of a charge on the lesser-included offense left the jury with the sole option either to convict the defendant of the charged offense or to acquit him, some harm exists. Saunders v. State , 913 S.W.2d 564, 571 (Tex. Crim. App. 1995).
Citing Masterson , the State contends there was no harm in this case because the jury was not left with the sole option to convict or acquit appellant because appellant had "admitted to and was convicted by the jury of possession" so "the jurors would know he would not be released from liability even if they acquitted him of tampering." In Masterson (and Saunders ), the Court of Criminal Appeals held that the jury's failure to find an intervening lesser-included offense (one between the requested lesser offense and the offense charged) may, in appropriate circumstances, render a failure to submit the requested lesser offense harmless." Masterson , 155 S.W.3d at 171 (citing Saunders , 913 S.W.2d at 572 ). This case does not involve an intervening lesser-included offense, and we decline to extend the holdings of Masterson and Saunders to offenses which are not lesser-included offenses. While it may make sense for a jury to consider "[t]he intervening lesser offense [a]s an available compromise, giving the jury the ability to hold the wrongdoer accountable without having to find him guilty of the charged (greater) offense," see Masterson , 155 S.W.3d at 171, a guilty finding on a separate offense with entirely different elements is not an appropriate "compromise." It would not be logical or lawful for a jury, believing appellant guilty of attempted tampering rather than tampering, to find him guilty of possession as an alternative to finding him guilty of tampering.
Without a charge on the lesser-included offense of attempted tampering with evidence, the jury only had the option to either convict appellant of the tampering offense or acquit him on the charge. In this situation, some harm exists, particularly when one considers that the maximum imprisonment for attempted tampering with evidence in this case would have been 20 years, see Tex. Penal Code Ann. §§ 12.33, 12.425, 15.01(d), 37.09(c), whereas Appellant received a life sentence arising from his felony conviction for tampering with evidence enhanced by his prior felony convictions. See id. §§ 12.42(d), 37.09(c) ; Bridges v. State , 389 S.W.3d 508, 512–13 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that imposition of penalty that is more severe than potential maximum penalty for requested lesser-included offense is evidence of some harm). Accordingly, we conclude that appellant suffered some harm. We sustain appellant's second issue on appeal.
III. CONCLUSION
Because appellant conceded possession of a controlled substance, we affirm the trial court's judgment on appellant's possession of a controlled substance case. We reverse the trial court's judgment on tampering with physical evidence and remand the case for further proceedings. Tex. R. App. P. 43.2(d).
( Jewell, J., dissenting.)
DISSENTING OPINION
Kevin Jewell, Justice
I respectfully disagree with the majority's analysis and disposition of appellant's second issue. I would hold that the trial court did not err in refusing appellant's request for a lesser-included offense instruction on attempted tampering with physical evidence, and I would overrule appellant's second issue. Because I cannot join the majority's opinion and judgment, I dissent.
The indictments in relevant part charged appellant with:
knowing that an investigation was pending or in progress, [appellant] did then and there alter, destroy or conceal a thing, to-wit: a syringe, with intent to
impair its verity, legibility, or availability as evidence in the investigation
and,
knowing that an offense had been committed, [appellant] did then and there alter, destroy or conceal a thing, to-wit: a syringe, with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation or official proceeding related to the offense.
See Tex. Penal Code § 37.09(a), (d-1). The trial court submitted a single question asking the jury whether it found appellant guilty or not guilty of tampering with physical evidence, and the court instructed the jury on the offense elements as set forth in the indictment and Penal Code sections 37.09(a) and (d-1). Appellant requested an instruction on the lesser-included offense of attempted tampering with physical evidence, and the trial court refused the request. The jury found appellant guilty of the offense of tampering with physical evidence.
I agree with the majority that appellant preserved error.
Justice Jewell dissents without opinion to the denial of relief on rehearing.
In his second issue, appellant contends the trial court erred by refusing to instruct the jury on attempted tampering with physical evidence. We review the trial court's decision on the submission of a lesser-included offense for an abuse of discretion. See Guzman v. State , 552 S.W.3d 936, 947 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd) (citing Ramirez v. State , 422 S.W.3d 898, 900 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) ). The trial court abuses its discretion when its decision is arbitrary, unreasonable, or without reference to guiding rules or principles. Id. (citing Penaloza v. State , 349 S.W.3d 709, 711 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) ). Because the trial court has no discretion in determining the applicable law, the trial court also abuses its discretion when it fails to analyze the law correctly and apply it to the facts of the case. Id.
Deciding this issue involves a two-step process. Bullock v. State , 509 S.W.3d 921, 924 (Tex. Crim. App. 2016) ; Cavazos v. State , 382 S.W.3d 377, 384-85 (Tex. Crim. App. 2012) ; Rice v. State , 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). We first determine whether the requested instruction pertains to an offense that is a lesser-included offense of the charged offense. Bullock , 509 S.W.3d at 924. Generally speaking, an offense is a lesser-included offense if it consists of an attempt to commit the offense charged. Tex. Code Crim. Proc. art. 37.09(4). Applying article 37.09(4) to the present case, attempted tampering with physical evidence is a lesser-included offense of tampering with physical evidence. I agree with the majority that the first step is established as a matter of law.
The second step requires us to determine whether the evidence presented during the trial supports the requested instruction. Bullock , 509 S.W.3d at 924-25 ; Sweed v. State , 351 S.W.3d 63, 68 (Tex. Crim. App. 2011) ; Rice , 333 S.W.3d at 144. A defendant is entitled to an instruction on a lesser-included offense when some evidence exists that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser-included offense. Bullock , 509 S.W.3d at 924-25 ; Cavazos , 382 S.W.3d at 385 ; Saunders v. State , 840 S.W.2d 390, 391-92 (Tex. Crim. App. 1992). As applied to the present case, there must be some affirmative evidence from which a rational jury could acquit appellant of tampering, but convict him of attempted tampering. See Cavazos , 382 S.W.3d at 385. The evidence must establish that the lesser-included offense is a valid, rational alternative to the charged offense. Bullock , 509 S.W.3d at 925. In examining the core inquiry whether a jury rationally could find the defendant guilty only of the lesser-included offense, we consider all of the evidence admitted at trial and not just the evidence presented by the defendant. Id. ; Goad v. State , 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). There are generally two ways in which the evidence may indicate that a defendant is guilty only of a lesser-included offense. Bullock , 509 S.W.3d at 925 ; Sweed , 351 S.W.3d at 68 ; Saunders , 840 S.W.2d at 391-92. First, evidence may refute or negate other evidence establishing an element or elements of the charged offense. See Saunders , 840 S.W.2d at 391. Second, a defendant may be shown guilty only of a lesser-included offense if the evidence is subject to different inferences. See Bullock , 509 S.W.3d at 925 ; Saunders , 840 S.W.2d at 392. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Sweed , 351 S.W.3d at 68. This threshold showing is low, but it is not enough that the jury may merely disbelieve crucial evidence pertaining to the greater offense; rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. Id. We may not consider the credibility of the evidence supporting the lesser charge or consider whether that evidence is controverted or conflicts with other evidence. Bullock , 509 S.W.3d at 925.
In considering whether a lesser offense is a valid, rational alternative to the charged offense, we compare the statutory requirements between the charged offense—here, tampering with physical evidence—and the lesser offense—here, attempted tampering with physical evidence—to determine whether evidence exists to support a conviction for attempted tampering with physical evidence but not tampering with physical evidence. See id. (comparing charged offense of theft against lesser offense of attempted theft); see also Smith v. State , 881 S.W.2d 727, 734 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (comparing charged offense of murder against lesser offense of attempted murder). As charged in the indictment, a person commits the offense of tampering with physical evidence if either, (1) knowing that an investigation was pending or in progress, a person alters, destroys, or conceals a syringe, with intent to impair its verity, legibility, or availability as evidence in the investigation; or (2) knowing that an offense had been committed, a person alters, destroys, or conceals a syringe, with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation or official proceeding related to the offense. See Tex. Penal Code § 37.09(a), (d-1). Criminal attempt occurs when a person, with specific intent to commit an offense, does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Id. § 15.01(a); Bullock , 509 S.W.3d at 925. Thus, to find appellant guilty only of attempted tampering with physical evidence, a jury would be required to determine that appellant, (1) knowing that an investigation was pending or in progress, or that an offense had been committed, (2) with intent to impair the syringe's verity, legibility, or availability as evidence in the investigation, subsequent investigation, or official proceeding related to the offense, (3) did an act amounting to more than mere preparation, but failed to alter, destroy, or conceal the syringe by all means alleged. Could a jury reasonably have acquitted appellant of tampering with the syringe by all means alleged, but convicted appellant only of attempting to alter, destroy, or conceal the syringe?
Answering this question requires us to examine whether some evidence refutes or negates other evidence establishing the greater offense, or whether the evidence presented is subject to different interpretations, as to all means alleged in the indictment. See Sweed , 351 S.W.3d at 68 ; Saunders , 840 S.W.2d at 392. If the evidence allows of only one reasonable conclusion that appellant completed the offense of tampering with the syringe by at least one of the means alleged—altering, destroying, or concealing—then a jury rationally could not find him guilty only of attempted tampering with physical evidence. In that instance, appellant would not be entitled to an instruction on the lesser-included offense of attempted tampering with physical evidence.
The State attempted to prove appellant tampered with physical evidence by three means: (1) appellant altered or destroyed the syringe by breaking the needle from the barrel; (2) appellant concealed the syringe by hiding it in his right hand or under the driver's seat, though Trooper Kral ultimately discovered that appellant was holding the syringe; and (3) appellant altered the syringe by changing its physical location. In the trial court, both sides argued for or against all three theories in the context of appellant's directed verdict motion, the charge conference, and closing argument. On appeal, however, appellant challenges only the first two of the State's theories.
Appellant's brief does not address why the State's theory of altering-by-moving-evidence could not support the trial court's decision to refuse the lesser-included offense instruction. And appellant filed no reply brief after the State in its brief specifically asked us to affirm the judgment because appellant had not disputed that he altered the syringe by changing its location.
Ordinarily, if even one independent ground fully supports the complained-of ruling and an appellant does not assign error to it, we accept the validity of that unchallenged independent ground and need not address the challenged grounds. See Marsh v. State , 343 S.W.3d 475, 479 (Tex. App.—Texarkana 2011, pet. ref'd) (applying principle to evidentiary ruling). In this case, however, I conclude that the trial court's ruling is supported under the State's first theory and that appellant was not entitled to a lesser-included offense instruction. That determination is dispositive of appellant's second issue.
See Moore v. State , 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980) (defendant must challenge each ground on which the trial court relies on to rule against the defendant because one sufficient ground supports trial court's order). In non-precedential dispositions, courts have applied the same rule in other contexts. State v. Hoskins , No. 05-13-00416-CR, 2014 WL 4090129, at *2 (Tex. App.—Dallas Aug. 19, 2014, no pet.) (not designated for publication) (applying principle to issue regarding motion for new trial); see also Johnson v. State , Nos. 03-15-00695-CR, 03-15-00696-CR, 2017 WL 1404334, at *4 (Tex. App.—Austin Apr. 12, 2017, no pet.) (mem. op., not designated for publication) (applying principle to issue regarding motion to suppress).
Under its first theory, the State attempted to prove tampering with physical evidence by showing that appellant altered or destroyed the syringe by breaking it. For appellant to be entitled to the requested instruction on the lesser-included offense, there must be at least a scintilla of affirmative evidence from which a jury rationally could find that (1) appellant did not complete the charged offense, that is, he did not alter or destroy the syringe by breaking it, and (2) appellant is guilty only of an attempt to do so. Trooper Kral testified that after he realized appellant was holding a syringe in his right hand, he saw appellant "basically grab[ ] [the syringe] like this and with his thumb he was actively trying to break it" and shove it under the seat. Trooper Kral then verbally commanded appellant to drop the syringe and move away from the truck. Appellant did not comply after numerous commands. As appellant continued his efforts to break the syringe and shove it under the seat, Trooper Kral grabbed appellant by the shoulder and forcibly removed him from the truck. Appellant landed on the ground, and Trooper Kral saw that appellant still held the syringe and was "trying to throw it off to the side." The syringe landed about two feet away. Trooper Kral recovered the syringe and saw that the needle was broken. After describing these events, Trooper Kral testified that appellant altered the syringe by breaking it. As Trooper Kral explained, "I can tell you he was actively trying to break it because that's what happened to the syringe itself." Trooper Kral also testified that appellant "was successful in breaking" the needle. After appellant was arrested, he acknowledged during his recorded statement that he was trying to "break the syringe" or "get rid of it."
Trooper Kral explained more specifically that appellant's thumb was "touching the needle side" of the syringe.
During his testimony, Trooper Kral sometimes referred to the "syringe" and the "needle" interchangeably.
Appellant makes three arguments in support of his point that some evidence exists to permit a rational jury to find that he did not break the syringe but only attempted to do so. First, appellant posits that the syringe might not have been intact before Trooper Kral arrived on the scene. The only trial testimony on this point was Trooper Kral's statements that he had no knowledge of the syringe's condition prior to seeing it in appellant's hand, and that he could not see the syringe's "full condition" while appellant held it. But that is not affirmative evidence that the syringe was not intact before the encounter. See Cavazos , 382 S.W.3d at 385. Neither appellant nor any other witness testified that the syringe was broken before Trooper Kral first arrived, and no circumstantial evidence reasonably suggests it was not intact at that time. Further, no evidence refutes or negates Trooper Kral's testimony describing appellant's efforts to break the syringe. Nor does any evidence negate appellant's admission that he was trying to break the syringe during the encounter. Appellant simply could not have placed his thumb on the needle as described by Trooper Kral if the needle in fact was not attached. Moreover, appellant's actions to break the syringe, his "desperate" demeanor, and the traces of methamphetamine recovered from the syringe, all give rise to a reasonable inference that appellant had recently used the syringe to inject methamphetamine. He could not have used the syringe for that purpose if the needle was not attached. And even assuming the syringe was broken before Trooper Kral initiated contact, the only reasonable inference from the evidence is that the syringe was broken by appellant and no one else.
Second, appellant observes that Trooper Kral neither stated in his offense report that appellant broke the syringe, nor photographed or recovered the needle. However, the court admitted the syringe into evidence and the needle was broken. That Trooper Kral did not recover the needle is not evidence that appellant did not break the needle. See Hampton v. State , 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (failure to locate knife does not mean knife was not used in the offense), abrogated on other grounds by Grey v. State , 298 S.W.3d 644 (Tex. Crim. App. 2009). Likewise, that Trooper Kral's report does not state that appellant broke the needle is also insufficient. In cross-examining Trooper Kral based on his report, appellant's counsel clearly intended to discredit Trooper Kral's testimony that appellant broke the needle by establishing that Trooper Kral did not expressly state that fact in the report. But this was an effort to convince the jury merely to disbelieve Trooper Kral, and it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Bullock , 509 S.W.3d at 925 ; Sweed , 351 S.W.3d at 68. If the report said that appellant did not break the needle, then I would agree that a scintilla of affirmative evidence is present supporting the lesser-included offense.
Third, appellant argues that it is possible the jury could have determined that the force of appellant being thrown from his vehicle "could have caused the needle to break off from the syringe." According to appellant, Trooper Kral "conceded that it was possible that the act of forcibly throwing Mr. Ransier to the ground could have caused a needle to detach from the syringe." To the contrary, Trooper Kral did not concede that fact; appellant's counsel suggested the possibility by his question and Trooper Kral said he could not determine whether it was possible. We credit evidence from any source, Sweed , 351 S.W.3d at 69, but attorney questions are not evidence. See Madden v. State , 242 S.W.3d 504, 513-14 & n.23 (Tex. Crim. App. 2007) (recognizing that the questions posed by the attorney are not evidence); Haley v. State , 396 S.W.3d 756, 767 (Tex. App.—Houston [14th Dist.] 2013, no pet.). There exists no affirmative evidence from which a jury rationally could find that Trooper Kral's actions, as opposed to appellant's actions, broke the syringe.
Given the totality of the record, I see no evidence from which a jury rationally could find that appellant is not guilty of tampering with physical evidence by breaking the syringe and thus altering or destroying it as charged, but is guilty only of an attempt to do so. Appellant's contrary arguments are grounded on speculation, not on evidence or reasonable inferences from the evidence. See Cavazos , 382 S.W.3d at 385 (meeting second step requires "more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense."). To show he was entitled to an instruction on attempted tampering, at least a scintilla of affirmative evidence must have permitted the jury to rationally determine that appellant was guilty of committing only an attempt to break the syringe. See id. The only way a jury rationally could find that the needle broke for reasons other than appellant's intentional efforts is if the jury rejected Trooper Kral's testimony, which is tantamount to merely "disbeliev[ing] crucial evidence pertaining to the greater offense." Bignall v. State , 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). Similarly, the evidence is not susceptible to different interpretations on whether appellant merely attempted but failed to break the syringe. Other than speculation, there is no evidence directly germane to the lesser offense and from which a jury rationally could find that the needle broke by means other than as a result of appellant's intentional efforts to break it.
Appellant also contends that the syringe was not "destroyed" because it retained evidentiary value, as reflected by the undisputed fact that the state recovered methamphetamine from the broken syringe. I disagree with appellant on this point. In my view, the syringe was destroyed because it was "rendered useless" as a syringe. See Rabb v. State , 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (physical evidence is "destroyed" when "ruined or rendered useless," even if it retains evidentiary value); Williams v. State , 270 S.W.3d 140, 146-47 (Tex. Crim. App. 2008).
Accordingly, I conclude there exists no evidence that appellant, if guilty, is guilty only of attempting to alter or destroy the syringe. Therefore, the trial court did not err in refusing appellant's request for a jury instruction on the lesser-included offense of attempted tampering with physical evidence. See Smith , 881 S.W.2d at 734 (court did not err in refusing instruction on attempted murder).
For these reasons, I would overrule appellant's second issue. As a result of my conclusion, I do not address appellant's remaining arguments under his second issue.
SUPPLEMENTAL MAJORITY OPINION ON REHEARING
In No. 14-17-00580-CR: Motion for Rehearing Denied; Motion for En Banc Reconsideration Dismissed as Moot; In No. 14-17-00581-CR: Motion for Rehearing Dismissed as Moot; Motion for En Banc Reconsideration Dismissed as Moot; and Supplemental Majority Opinion on Rehearing filed October 24, 2019.
The State filed a motion for rehearing in which it contends that even if Trooper Kral broke the needle, appellant is criminally responsible under the law of the parties, Penal Code sections 7.01 and 7.02, or as a "but for" or concurrent cause under Penal Code section 6.04. The State also filed a substantially similar motion for en banc reconsideration. The State contends, "The majority did not consider that principles of causation in the Texas Penal Code—and case law based on those provisions—precluded Appellant from demonstrating that he was ‘guilty only’ of an attempt to break the needle."
In appellate cause no. 14-17-00580-CR, appellant's tampering case, the court grants rehearing and issues this supplemental opinion to clarify its original opinion, but the court denies the State's requested relief.1 The court dismisses the State's motion for en banc reconsideration as moot without prejudice to filing a motion for en banc reconsideration in light of this supplemental opinion.
In appellate cause no. 14-17-00581-CR, appellant's possession case, on its own motion, the court dismisses the motion for rehearing and the motion for en banc reconsideration as moot because the State does not seek any relief in this case.
To convict appellant of tampering under the law of parties, the jury had to determine that appellant was criminally responsible for the acts of another. Tex. Penal Code Ann. § 7.01(a). Relevant here, a person is criminally responsible for an offense committed by another if "acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense." Id. at § 7.02(a)(1).
To convict appellant of tampering based on the existence of a concurrent cause, two possible combinations exist to satisfy the "but for" causation requirement: (1) the defendant's conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the defendant's conduct and the other cause together may be sufficient to have caused the harm. Robbins v. State , 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). But if the concurrent cause is clearly sufficient, by itself, to produce the result and the defendant's conduct, by itself, is clearly insufficient, then the defendant cannot be convicted. Id. Concurrent cause is for the jury to decide. Wooten v. State , 267 S.W.3d 289, 295 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd).
Nowhere in the majority opinion did we conclude that Kral broke the needle. We recited the facts that Kral grabbed appellant by the shoulder and forced him out of the truck, and appellant fell to the ground. We also explained that on the ground, appellant still held the syringe, but tried to throw it aside. The syringe landed about two feet from appellant. Kral testified that he could not determine whether appellant's falling to the ground after Kral threw him to the ground caused the needle to break off. We concluded a rational jury could have inferred that the syringe was broken by the fall. We stated that any breakage following the struggle was incidental to the struggle and at least arguably involuntary as to appellant.
Tampering with evidence requires specific intent. Rabb v. State , 483 S.W.3d 16, 21 (Tex. Crim. App. 2016) ; Thornton v. State , 425 S.W.3d 289, 300 n.59 (Tex. Crim. App. 2014). The intent must accompany the action. Rabb , 483 S.W.3d at 21 ; Thornton , 425 S.W.3d at 300 n.59. Many of the cases the State cites in support of its causation arguments are sufficiency cases, but we do not apply sufficiency standards to our analysis. See Ritcherson v. State , 568 S.W.3d 667, 676 (Tex. Crim. App. 2018). Perhaps a rational jury could have concluded appellant acted with the kind of culpability required for tampering and at the same time appellant caused Kral to pull him out of the truck, resulting in a fall which broke the syringe. However, a rational jury may have also reasonably inferred the opposite conclusion: that although appellant had specific intent to break the syringe before Kral pulled him out of appellant's truck, Kral's pulling him out of the truck and onto the ground disrupted appellant's commission of the offense. See Goad v. State , 354 S.W.3d 443, 449 (Tex. Crim. App. 2011) ("[E]ven if one could not logically deduce from this evidence that Goad must have lacked intent to commit theft, that is not the proper standard of our analysis."). Although a jury could have rationally concluded that appellant's conduct and the fall together caused the syringe to break, a jury could have also rationally concluded that the fall itself broke the syringe and appellant's efforts to break the syringe failed. A jury also could have rationally inferred that Kral did not know how, when, or if appellant broke the syringe from the fact that Kral could not determine whether appellant's falling to the ground caused the needle to break off.
The other cases cited by the State are also distinguishable. Miers v. State was not a case involving tampering, attempted tampering, or a request for a jury instruction on a lesser-included offense. 251 S.W.2d 404 (Tex. Crim. App. 1952). Miers was convicted of murder. Id. at 405. At trial, he argued that the deceased had accidentally shot himself during a scuffle after wresting the gun from Miers who had entered a filling station to commit robbery. Id. at 407. On appeal, Miers complained that the trial court did not include in the charge the defense that Miers did not fire the shot that killed the deceased. Id. The Court of Criminal Appeals held that the trial court did not err and this was no defense because Miers set in motion the cause which occasioned the death of deceased. Id. at 408.
The only case the State cited involving a denied request for a charge on a lesser-included offense, Dowden v. State , 758 S.W.2d 264 (Tex. Crim. App. 1988), is cited by the State for its analysis of Dowden's separate sufficiency challenge. However, the court's analysis of the charge issue is also distinguishable. The evidence in Dowden showed that Dowden took guns to a police station at 4:00 a.m. in the morning to help his brother escape from jail. Id. at 267. Dowden pointed an automatic pistol at police officers and declared, "I have come to get Charles." Id. An exchange of gunfire ensued between Dowden and officers, and one officer accidentally shot the police captain. Id. at 267–68. Dowden was convicted of the murder of the captain. Id. at 266. On appeal, Dowden complained that the trial court refused to charge the jury on the lesser-included offenses of aggravated assault, criminally negligent homicide, and involuntary manslaughter. Id. at 268. The Court of Criminal Appeals concluded there was no evidence that appellant was guilty of the lesser included offenses. Id. at 268–72. The court explained the lesser-included offenses required evidence of a lesser culpable mental state—that Dowden failed to perceive the risk surrounding his conduct. Id. at 269–72. The court held that Dowden was not entitled to charges on the lesser-included offenses because none of the evidence indicated appellant was not aware of the risk involved in entering a police station with a loaded gun. Id. at 269. "The resulting death would not have occurred but for appellant's intentional conduct." Id. The court emphasized that the actions of Dowden were all voluntary and there was no evidence that appellant was acting merely recklessly or with criminal negligence. Id. at 271.
Unlike Miers or Dowden , in which the defendants were or should have been aware that their actions created a substantial risk that someone might be injured or killed, appellant may not have anticipated that Kral's attempt to stop him from breaking the syringe would cause the syringe to break. And unlike criminal negligence or involuntary manslaughter, attempted tampering does not require a lesser culpable mental state. A jury could conclude appellant was guilty of attempted tampering if it found appellant had the specific intent to break the syringe but failed to do so. Tex. Penal Code Ann. § 15.01(a).
Moreover, the Court of Criminal Appeals reviews tampering cases in a much different manner than murder cases. Recent Court of Criminal Appeals cases addressing sufficiency challenges to tampering convictions have held the convictions were not supported by the evidence. See Rabb , 483 S.W.3d at 22–24 (evidence insufficient to prove tampering by swallowing baggie of drugs but sufficient to prove attempted tampering); Thornton , 425 S.W.3d at 293–94, 303–07 (dropping crack pipe was insufficient to prove tampering, but sufficient to prove attempted tampering); Rabb v. State , 434 S.W.3d 613, 617–18 (Tex. Crim. App. 2014) (swallowing plastic bag was insufficient to prove destroying evidence, case remanded for consideration of attempted tampering).
For all these reasons, the State's causation arguments do not preclude us from concluding that more than a scintilla of evidence exists from which a jury could conclude appellant was "guilty only" of attempted tampering. The remainder of the State's arguments on rehearing were adequately addressed by the majority's opinion, and we do not address them here. The State's requested relief on rehearing is denied.