Appeal from the 207th District Court Comal County, Texas
Trial Court Cause No. CR2016-303 & CR2017-004
consists of Justices Jewell, Zimmerer, and Spain. (Jewell,
SUPPLEMENTAL MAJORITY OPINION ON REHEARING
Charles A. Spain, Justice.
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."
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. 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.
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.
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).
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, 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).
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.
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
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.
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.
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 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.
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).
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 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, ...