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Ransier v. State

Court of Appeals of Texas, Fourteenth District

July 16, 2019

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

          Panel consists of Justices Jewell, Zimmerer, and Spain.

          OPINION [1]

          CHARLES A. SPAIN, JUSTICE

         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 ...

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