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.




                                       In the

                    Fourteenth Court of Appeals

                               NO. 14-17-00580-CR
                               NO. 14-17-00581-CR

                  CHARLES ROBERT RANSIER, Appellant
                                         v.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 207th District Court
                            Comal County, Texas
              Trial Court Cause No. CR2016-303 & CR2017-004

        SUPPLEMENTAL MAJORITY OPINION ON REHEARING

      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,


      1
          Justice Jewell dissents without opinion to the denial of relief on rehearing.

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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

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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

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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

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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.




                                       /s/       Charles A. Spain
                                                 Justice


Panel consists of Justices Jewell, Zimmerer, and Spain. (Jewell, J., dissenting.)
Publish — TEX. R. APP. P. 47.2(b).




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