Appeal from the 207th District Court Comal County, Texas
Trial Court Cause Nos. CR2016-303 & CR2017-004
consists of Justices Jewell, Zimmerer, and Spain.
CHARLES A. SPAIN, JUSTICE
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
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.
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.
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
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."
was removed from the syringe and tested in the DPS crime lab.
The testing determined the liquid was methamphetamine.
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.
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.
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.
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
the close of evidence, appellant asked the trial court for a
lesser-included instruction on attempted tampering. The trial
court denied the request.
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."
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.
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.
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.
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.
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 ...