Affirmed in part, Reversed and Remanded in part, and Majority and
Dissenting Opinions filed July 16, 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 Nos. CR2016-303 & CR2017-004

                    DISSENTING OPINION

      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.1            The jury found
appellant guilty of the offense of tampering with physical evidence.

       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


       1
           I agree with the majority that appellant preserved error.

                                                   2
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

                                           3
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


                                         4
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—


                                           5
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.2

       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).3 In this case, however, I conclude that


       2
          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.
       3
         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
                                                 6
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.

       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. 4 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

Apr. 12, 2017, no pet.) (mem. op., not designated for publication) (applying principle to issue
regarding motion to suppress).
       4
         Trooper Kral explained more specifically that appellant’s thumb was “touching the
needle side” of the syringe.

                                              7
also testified that appellant “was successful in breaking” the needle.5         After
appellant was arrested, he acknowledged during his recorded statement that he was
trying to “break the syringe” or “get rid of it.”

      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.
      5
        During his testimony, Trooper Kral sometimes referred to the “syringe” and the
“needle” interchangeably.

                                            8
      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.
2011). 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


                                          9
(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.6             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,
       6
         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).

                                              10
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.

         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.




                                         /s/    Kevin Jewell
                                                Justice


Panel consists of Justices Jewell, Zimmerer, and Spain. (Spain, J., majority).

Publish — Tex. R. App. P. 47.2(b).




                                           11
