PD-0289-20 08/19/2020
1. “When—as the Ransier Dissent recognizes—the record does not support a rational conclusion that if Appellant was guilty of anything, it was only attempted tampering, should the Fourteenth Court have nevertheless reversed Appellant’s conviction because of the failure to include a ‘lesser-included offense’ instruction to which he was not entitled?
a. Where multiple provisions on criminal responsibility (Tex. Penal Code § 7.01 and § 7.02) and causation (Tex. Penal Code § 6.04) along with case law from this Court and other courts developing said provisions demonstrate Appellant’s criminal responsibility for causing the syringe to break—consequently preventing Appellant from showing he was ‘guilty only’ of an attempt—should the Ransier majority have disregarded the foregoing and crafted new rules regarding causation and criminal responsibility?
b. Should the Ransier Majority have adopted Appellant’s timeline of events—essentially, considering only whether Appellant concealed the syringe from the point the Trooper first recognized it, and ignoring Appellant’s concealment prior to that point?
c. Should the Ransier Majority have misinterpreted this Court’s opinion in Stadt and crafted its own new ‘guilty only’ rule that is directly contrary to this Court’s latter holdings, that of other courts of appeal, and to the rationale underlying the original ‘guilty only’ rule?
d. Where this Court in Bullock carefully considered sufficiency cases’ construction of a statute during Bullock’s lesser-included analysis, should the Ransier Majority have completely disregarded such cases, instead leaving that question of law to the jury’s resolution on a case-by-case basis?”
During an encounter with a DPS trooper, Ransier tried to break and/or hide under the driver’s seat of his truck a syringe filled with methamphetamine. A struggle ensued when Ransier did not stop, ending with Ransier on the ground with the syringe still in his hand. He threw it a few feet before he was handcuffed. When it was recovered, the needle had broken off. It is unclear when that happened. At the station, Ransier said “yes” when asked if he was “trying to break it or trying to get rid of it.” He was indicted for possession of a controlled substance and tampering with physical evidence—altering, concealing, or destroying under both Tex. Penal Code § 37.09(a)(1) and (d)(1). His request for a lesser-included instruction on attempted tampering was denied, and he was convicted as charged.
The court of appeals reversed. Its overarching theory of entitlement was that, although Ransier had the specific intent and acted to alter or destroy the syringe, a rational jury could draw the inference that his actions did not break it. The court discounted the State’s “concealment” theory because the trooper never lost sight of the syringe. It also rejected the State’s argument that moving the syringe was “altering,” calling sufficiency cases defining the term (as opposed to cases on lesser-included offenses) inapposite and concluding alternatively that the jury was free to interpret that undefined term so as not to include Ransier’s conduct. In a supplemental opinion, it clarified that the breakage “was incidental to the struggle,” i.e., not broken by the trooper, “and at least arguably involuntary as to [Ransier].” The court also suggested Ransier might not have anticipated that the trooper’s interference with his attempt to break the syringe would break the syringe. Because the jury could have viewed the evidence any number of ways, neither concurrent causation nor party responsibility changed the analysis. See Tex. Penal Code §§ 6.04(a) (concurrent causation), 7.02(a)(1) (criminal responsibility for conduct of another).
The dissent made two points. First, Ransier did not challenge all the alternative statutory theories under which the jury could have found him guilty as charged. Because the jury could have convicted him on a movement theory of “alters,” the trial court did not abuse its discretion by refusing the charge on attempted tampering. Second, the majority’s analysis was based not on affirmative evidence negating elements of the greater offense or even on evidence subject to multiple interpretations; it was based on speculation regarding the absence of affirmative evidence directly refuting Ransier’s theory. For example, the majority said the trooper’s “affirmative testimony” that he did not know the syringe’s condition before Ransier’s fall “is some evidence that appellant did not successfully alter or destroy the syringe by breaking the needle from the barrel.”
The State attacks the court’s holding on multiple levels. Factually, all the affirmative evidence showed the needle was attached when events unfolded. If Ransier had the specific intent to break the syringe but his attempt to break it was interrupted by the trooper breaking it, Ransier acted with the kind of culpability required for the offense when he caused an innocent person to engage in conduct prohibited by the definition of the offense. See Tex. Penal Code § 7.02(a)(1). Similarly, if it were “accidentally” broken during Ransier’s attempt to break it, he would still be criminally responsible for causing it. See Tex. Penal Code § 6.04(a). Further, there is no requirement that Ransier anticipate the actual cause of his intended, attempted result. The State also argues that the lower court’s rejection of its “concealment” argument is circular; starting the clock from the point at which the officer saw the syringe means it never could have been concealed regardless of what happened prior. The State also argues that the court of appeals misconstrued Stadt v. State, 182 S.W.3d 360 (Tex. Crim. App. 2005), when it held Ransier did not have to negate every theory of guilt to obtain the instruction on attempted tampering. Stadt, it argues, was about factual theories of guilt on the charged offense; this case is about alternative statutory theories, each of which demands a response from the jury. Finally, the court of appeals should not have dismissed sufficiency cases interpreting “alter” to include “move” because the core issue—what a jury could rationally conclude from the evidence—is the same as in a “lesser” analysis.
