By Clinton Morgan
Assistant District Attorney in Harris County
The Court of Criminal Appeals’s recent opinion in Ransier v. State[1] points out—and resolves—an interesting problem with charging people with “concealing” evidence. If the State is charging a defendant with tampering with evidence by “concealing” it,[2] in all likelihood we eventually found the evidence. Otherwise it would be very hard to prove the charge.
But if we found the evidence, that means at some point the defendant failed to conceal it.[3] Ordinarily if there is evidence showing the defendant tried but failed to commit the charged offense, he would be entitled to a jury charge on the lesser offense of criminal attempt. Does that mean that a defendant charged with concealing evidence is entitled to an instruction on the lesser just because the State eventually found the evidence?
Ransier says no. If the evidence shows a defendant successfully concealed evidence for a period of time, the fact that he later failed to conceal it is not evidence that he never concealed it.
The slide and the syringe
According to the opinions, Trooper David Kral was on patrol when he noticed a children’s slide on the side of the road. When he drove by the slide later, it had been moved a little and a truck was parked near it. Kral stopped and asked the truck’s occupant, Charles Robert Ransier, if he could search the truck. Now there’s a lot more to the search than what the opinions mention, but those facts—while extraordinary—aren’t legally important so I’ll bury them in an endnote.[4]
Ransier was nervous about letting the trooper search, but he agreed to remove items from his truck. As he was doing so, Kral noticed there was something in Ransier’s right hand that he was trying to shove under the driver’s seat. Kral moved to a different spot and leaned over; he saw the object was a syringe. Kral asked him what was in his hand, at which point Ransier tried to break the syringe and shove it under the truck seat. Kral escorted Ransier to the ground, and the syringe landed a couple of feet away with the needle part broken off.
Ransier was charged with tampering with evidence and possession of less than a gram of a controlled substance that was found in the syringe. The tampering indictment alleged Ransier had altered, destroyed, and concealed the syringe. The jury convicted on both counts and, based on his criminal history, assessed the maximum possible punishment for both: life for the tampering charge and 20 years for the drug charge.
“Partially concealed”
On appeal, Ransier claimed the trial court erred in denying his request for a lesser-included instruction on attempted tampering. A divided panel of the Fourteenth Court agreed and reversed.[5]
For a defendant to be entitled to a lesser-included instruction, there must be evidence in the record that, if believed, would let a jury decide he was guilty of the lesser offense but not the charged offense.[6] When the State charges multiple manners and means, the evidence for the lesser must negate every charged version of the offense. For instance here, where the State charged tampering by altering, destroying, and concealing the syringe, to be entitled to a lesser for attempted tampering, Ransier needed to point to evidence showing he tried, but failed, to do all three of those things.
Writing for the Fourteenth Court majority, Justice Spain held that Ransier had done just that. The majority believed the jury could have found Ransier attempted but failed to “alter” or “destroy” the syringe because the evidence was ambiguous as to when the syringe got broken: Perhaps Ransier broke it before Kral started his investigation, or perhaps it broke when Ransier threw Kral to the ground.
Regarding concealment, the Fourteenth Court noted that Kral said he saw the syringe in Ransier’s hand; therefore, it was “only partially concealed.” After conducting the sort of perfunctory harm analysis that applies to the erroneous denial of a lesser-included instruction,[7] the Fourteenth Court reversed.
Justice Jewell dissented. Justice Jewell pointed out that there was no affirmative evidence the syringe was broken before Kral’s arrival, and Kral’s testimony that Ransier had his finger on the “tip” of the syringe—where a needle would ordinarily be—showed Ransier broke it during the investigation. In the absence of affirmative evidence that Ransier failed to alter the syringe, Justice Jewell would have affirmed the verdict of guilt.
Partial concealment doesn’t negate full concealment
The Court of Criminal Appeals granted review and, in a 6–3 decision, reversed the Fourteenth Court. Writing for the majority, Presiding Judge Keller focused exclusively on the issue of concealment.
She acknowledged Kral’s testimony that when he saw the syringe, it was only “partially concealed.” However, Kral also testified that before he saw the syringe it had been concealed.
These two bits of testimony flow logically from the definition of “conceal”: If you can see an object, it’s not concealed, but in proper circumstances it might be reasonable to infer that it had been concealed before you saw it. That was the case here, where Kral did not initially see the syringe, but during his investigation he saw it and saw that Ransier was trying to conceal it.
The fact that Ransier failed to conceal the syringe at one point in the investigation was not “evidence negating full concealment” at another point in the investigation. Thus, there was no rational basis for a jury to believe Ransier was “guilty only” of attempted tampering, and he was not entitled to a lesser.
Narrowing Bullock
Presiding Judge Keller distinguished Bullock v. State,[8] a case that has made lesser-included cases much more difficult since it came out in 2016. In Bullock, witnesses testified that the appellant got into a truck that wasn’t his, started the engine, and, with his hands on the steering wheel and his foot pressing the throttle, tried to drive off but was thwarted because he couldn’t disable the air brake. He was charged with theft of the truck. Bullock testified he got into the cab to steal some personal items; he denied intending to steal the truck, touching the steering wheel, turning it on, or touching the throttle.
Despite his testimony denying that he attempted to steal the truck, the Court of Criminal Appeals held he was entitled to a lesser-included instruction on attempted theft of the truck. This was so, the Court held, because the jury could 1) believe he was in the truck without consent; 2) infer an intent to steal from the fact he fled the scene; 3) believe his testimony that he never touched the pedals or steering wheel and did not start the truck; and 4) disbelieve his testimony about his intent to steal only personal items.
Bullock threw a wrench into the law of lesser-includeds because it involved piecing together bits of different witnesses’ testimony to create a version of events that contradicted every witness’s testimony. Despite the well-established rule that the mere disbelief of evidence cannot entitle a defendant to a lesser, the holding of Bullock hinges on believing one part of the defendant’s testimony while disbelieving another.
In Ransier, Presiding Judge Keller distinguished Bullock by noting that the caselaw states a lesser cannot be based on disbelief of evidence “establishing commission of the greater offense,” but Bullock involved disbelief of exculpatory evidence.
Concurrence and dissents
There are three side opinions, one concurring and two dissenting. Judge Walker dissented without opinion.
Judge Keel concurred to note that she “appreciate[d] and endorse[d]” the Court’s “narrowing” interpretation of Bullock. She noted that the Court’s “caselaw on requiring lesser-included-offense instructions is still muddled,” and she hoped the Court would one day clear it up.
Judge Yeary dissented for the same reason he dissented earlier this year in Chavez v. State:[9] He believes defendants should be allowed to get lesser-included instructions if a jury could rationally disbelieve the enhancing elements of the greater offense.
Judge Newell dissented for the same reason he gave in his concurring opinion in Chavez: He believes defendants should be entitled to an instruction on any offense that is legally a lesser of the charged offense, just as the State currently is.
Takeaways
The happiest takeaway from this case is about the nature of concealment. Just because an item isn’t currently concealed doesn’t mean it wasn’t concealed in the immediate past. Indeed, the way that an item is partially concealed—here, in a hand—can create an inference that it was fully concealed shortly before.
The less happy takeaway is that the law of lesser-included offenses remains, as Judge Keel said, “muddled.” Ever since Bullock, I have cautioned prosecutors against opposing lesser-included instructions because the results of these cases are not predictable. The Court’s narrowing of Bullock could, in theory, severely limit its application—how often are you going to have a case where a lesser-included is raised by the disbelief of exculpatory evidence?[10]
A prosecutor could, in good faith, argue that Ransier leaves Bullock a fact-bound nothingburger. I would wish that prosecutor good luck with such an argument, but I would not risk a significant case on it if I did not need to. Ransier does more to clarify the nature of concealment than the law of lesser-includeds.
Endnotes
[1] ___ S.W.3d ___, No. PD-0289-20, 2023 WL 4224609 (Tex. Crim. App. June 28, 2023).
[2] Penal Code §37.09(a)(1) makes it an offense to, among other things, “conceal” an item with the intent to impair its use in an investigation.
[3] Conceal: “To keep from being observed or discovered; hide.” The American Heritage Dictionary of the English Language, 5th ed.
[4] The opinions make it sound like a state trooper was investigating a children’s slide for no particular reason. That seemed odd, so I dug a little bit. The following is based on facts in the State’s brief, some of which were adduced at punishment. When Kral first saw the slide on the side of an access road, he thought it was abandoned and he might pick it up at the end of his shift for his own children. Later, he noticed the slide had been moved and a truck was parked next to it. What the appellate courts called an “investigation” seems to have started off with the trooper wanting to ask the truck’s occupant about the slide. The first thing the truck’s occupant, Ransier, said to Kral was, “I defecated myself”—though he might have used a different word than “defecated.” Ransier told Kral he had outstanding warrants. Inside the truck Kral saw a wig on the passenger’s seat, a little girl’s swimming suit spread out on the floorboard, and some personal lubricant. There was a candle, and Ransier—who was shirtless—had candle wax on his chest.
So that’s why Kral asked to search the truck. Items eventually found in the truck included duct tape, rope, condoms, baby oil, children’s toys, “iced-down cucumbers,” candy, balloons, and “male enhancement” products.
[5] Ransier v. State, 594 S.W.3d 1 (Tex. App.—Houston [14th Dist.] 2019).
[6] Ritcherson v. State, 568 S.W.3d 667, 676 (Tex. Crim. App. 2018).
[7] When a trial court errs in denying a defense request for a lesser-included and there is no lesser-included instruction at all, courts will infer some harm from the fact that the jury convicted when the only options were to acquit or to convict on a greater offense they did not believe beyond a reasonable doubt. That is, the appellate courts presume juror misconduct. I am unaware of any other harm standard that presumes juror misconduct; appellate law ordinarily presumes jurors follow instructions. See, e.g., Paster v. State, 701 S.W.2d 843, 848 (Tex. Crim. App. 1985) (where nonresponsive answer implicated capital murder defendant in two other murders, trial court’s instruction to disregard rendered error harmless beyond a reasonable doubt).
It strikes me that this harm standard for the denial of a lesser included is a manifestation of the problem of the seen and the unseen. Because the State cannot appeal an acquittal, appellate courts will never see a case where the defendant did not get an instruction on a lesser-included and the jury acquitted on the charged offense but would have convicted on a lesser. Because appellate courts have never seen such a case, they presume it doesn’t exist.
[8] 509 S.W.3d 921 (Tex. Crim. App. 2016).
[9] 666 S.W.3d 772 (Tex. Crim. App. 2023).
[10] In Chavez, released just two months before Ransier, the Court explicitly noted that “the disbelief of evidence is not evidence.” Yet the Court here acknowledges that in Bullock it was the disbelief of the defendant’s exculpatory testimony that raised the lesser included.