Garrett v. State

TEAGUE, Judge,

dissenting.

INTRODUCTION

This Court’s records reflect that this is the second time that this cause has been before this Court; each time on the State’s petition for discretionary review.

WHAT I WOULD HOLD

For reasons I will state, this Court should again remand this cause to the San Antonio Court of Appeals, for that court to consider only those grounds of error that Joyce Lee Lewis Garrett, hereinafter referred to as the appellant, timely presented to that court prior to its decision of Garrett v. State, 624 S.W.2d 953 (Tex.App. — San Antonio 1981), becoming final.

THE MAJORITY’S HOLDING

The majority opinion, however, in the first part of its opinion, declines to take my recommended action. It reviews the decision of the court of appeals that addressed a ground of error that had not been presented to that court when the cause was first pending before that court, to which action I am compelled to respectfully dissent for reasons that I will soon state.

IS THE COURT OF APPEALS GUILTY OF CONTEMPT?

The majority opinion holds that there was nothing wrong with the court of appeals refusing and failing to obey this Court’s decree when it first remanded this cause to that court, “for consideration of appellant’s grounds of error.” Garrett v. State, 642 S.W.2d 779 (Tex.Cr.App.1982). The court of appeals did not obey this Court’s mandate; opting instead to review a ground of error that was not extant when the case was first pending before that court. Is this not contemptuous conduct? I think so. If this Court’s express orders are not to be carried out by a court of appeals, then, pray tell, how can we expect our citizenry to obey any court’s orders? Notwithstanding this Court’s first order of remand, this Court today grants the San Antonio Court of Appeals permission to make a de novo review of the appellant’s cause; just like the case had never been before this Court. Cf. Laday v. State, 685 S.W.2d 651, 653 (Tex.Cr.App.1985) (Clinton, J., concurring opinion); Turner v. State, 662 S.W.2d 357 (Tex.Cr.App.1984) (Clinton, J., dissenting opinion.) Also see Gambill v. State, 692 S.W.2d 106 (Tex.Cr.App.1985), in which this Court’s members voted unanimously not to consider on rehearing a new ground of error that had not been presented in the original petition for discretionary review. In light of today’s decision, I suppose that the defendant in Gambill, supra, can now file a motion or amended motion for rehearing with that court of appeals and present his new ground of error. The fact that the “term of court” might have expired should not inhibit the defendant. See Ex parte Williams, 704 S.W.2d 773 (Tex.Cr.App., 1986). Of course, when you are the assertive and aggressive majoritari-an regime, rules and principles of law mean whatever you want them to mean.

THE INDICTMENT IN THIS CAUSE

The indictment in this cause alleges that on or about September 22, 1977, the appel *796 lant knowingly caused the death of an individual, Betty Lynn Bennett, by shooting Bennett with a gun. This alleged the offense of murder as proscribed by V.T.C.A., Penal Code, Section 19.02(a)(1).

THE STATE’S THEORY OF THE CASE

The State’s theory of the case was that the appellant was responsible for the death of Bennett because of her acts toward a third person, Bill Rankin.

THE FACTS OF THE CASE

The facts of the case reflect that the appellant, while engaged in a heated argument with Bill Rankin outside of the residence (a trailer home) of Betty Lynn Bennett and her family, fired a rifle one time. The bullet from the rifle traveled into the trailer home in which Bennett was then situated, striking Bennett, which caused her death.

THE LAW THAT GOVERNS TRANSFERRED INTENT

V.T.C.A., Penal Code, Section 6.04(b) provides: “A person is ... criminally responsible for causing a result if the only difference between what actually occurred and what he intended, contemplated, or risked is that: (2) a different person ... was injured, harmed, or otherwise affected.” I believe that the most favorable facts toward the verdict in this cause nicely fit the statutory definition of transferred intent. However, the law of transferred intent was never specifically applied to the facts of this case in the trial court’s charge to the jury. The appellant, however, never complained of such omission from the charge by either objecting to the charge or submitting a correct requested charge. The jury, however, was given in the abstract the statutory definition of the law of trans-fered intent. Also see V.T.C.A., Penal Code, Section 6.04(a).

WHAT THE COURT OF APPEALS DID THE FIRST TIME AROUND

On direct appeal to the San Antonio Court of Appeals, the appellant presented three grounds of error, none of which claimed that the evidence was insufficient to support the jury's verdict. In the grounds of error that the appellant presented, she only asserted jury misconduct and trial court error relating to the alleged jury misconduct. The court of appeals, however, did not review any of her grounds of error. Instead, it held that because the jury charge failed to apply the law of transferred intent to the facts of the case this rendered the charge fundamentally defective, and then reversed the trial court’s judgment of conviction. The cause was then remanded to the trial court for a new trial. Garrett v. State, 624 S.W.2d 953 (Tex.App. — San Antonio 1981).

This holding did not set too well with the great State of Texas as it thereafter petitioned this Court to review the decision of the court of appeals. This Court granted the State’s petition, but did so only to review the holding of the court of appeals that the jury charge was fundamentally defective.

WHAT THIS COURT DID TO THE COURT OF APPEALS’ DECISION

Contrary to the court of appeals, this Court held that the trial court’s failure to apply in the charge to the jury the law of transferred intent to the facts of the case was not fundamental error. It then reversed the judgment of the court of appeals and remanded the cause to that court “for consideration of appellant’s grounds of error.” Garrett v. State, 642 S.W.2d 779 (Tex.Cr.App.1982).

APPELLANT FILES A MOTION FOR REHEARING

The appellant, through counsel, filed a motion for rehearing in this Court, but this Court denied same without written opinion or comment.

In the motion for rehearing that counsel for the appellant filed on behalf of the appellant, he asserted therein for the first time on appeal that the evidence adduced at trial was insufficient to sustain the jury’s verdict finding the appellant guilty of murder.

*797 WHAT THE COURT OF APPEALS DID ON REMAND

After the cause was returned to the court of appeals, pursuant to our order of remand, “for consideration of appellant’s grounds of error,” but contrary to said order, the court of appeals did not review the appellant’s grounds of error that were extant when the cause was first pending in that court. Instead, that court chose to review a new ground of error that was presented in an amended brief filed by counsel for the appellant, which ground of error went to evidentiary insufficiency. The court of appeals found that the evidence was insufficient to support the jury’s verdict finding the appellant guilty of murder and ordered the trial court to enter a judgment of acquittal. Garrett v. State, 656 S.W.2d 97 (Tex.App. — San Antonio 1983). However, it also gratuituously stated the following: “The State is not precluded from retrying appellant on a lesser included offense of murder. (Citations omitted.)” (101-102.)

HERE COMES THE GREAT STATE OF TEXAS AGAIN

It is almost unnecessary to state that what the court of appeals did on remand really upset the great State of Texas; it filed another petition for discretionary review, asserting therein that the jurisdiction of the court of appeals was limited to this Court’s order of remand and that the evidence was sufficient to sustain the conviction. Interestingly, the appellant also was not pleased with the opinion of the court of appeals, as she, too, filed a petition for discretionary review asserting therein that the court of appeals should have, in addition to holding that the evidence was insufficient to sustain the jury’s verdict finding her guilty of murder, also held that the State was barred from reprosecuting her for any lesser included offense of murder. We granted both petitions.

I AGREE WITH THE STATE AND PARTLY AGREE WITH THE APPELLANT

Given the wording of this Court’s order of remand, I agree with the State and would find and hold that because of the wording of this Court’s order of remand, the court of appeals was without authority to consider the issue of the sufficiency of the evidence that was presented in her belatedly presented ground of error.

The majority opinion of this Court, however, disagrees with both the great State of Texas and me, and holds, inter alia, notwithstanding the terms of this Court’s order of remand, that the court of appeals was authorized to consider the appellant’s belatedly presented ground of error. In so holding, the majority opinion unfortunately fails to construe the terms of this Court’s order of remand. To me, as I will soon demonstrate by case law, the meaning of the wording of this Court’s order of remand is the key as to whether the court of appeals had authority to permit the appellant to file an amended ground of error that was not extant when the cause was previously before that court. Because of the wording of our order, I would hold that the court of appeals was without authority to decide the issue whether the evidence is sufficient to sustain the jury’s verdict.

However, I do agree, but for different reasons, with the majority opinion’s holding that there was a fatal variance between the allegata and the court’s charge to the jury in this cause, i.e., the evidence is insufficient to sustain the jury’s verdict finding the appellant guilty of the offense of murder because of what was alleged and what the jury was instructed that it had to find before returning a verdict of guilty against the appellant, in conjunction with the State’s proof.

In light of the fact that I would hold that the court of appeals did not have authority to reach this issue, I would relegate the appellant to pursuing this issue via the provisions of Art. 11.07, Y.A.C.C.P. However, there is a legal way to consider this issue at this time. In order to reach the appellant’s claim that the evidence is insufficient, I would treat appellant’s petition for discretionary review as an application for post-conviction writ of habeas corpus. *798 See and compare Basaldua v. State, 558 S.W.2d 2 (Tex.Cr.App.1977).

THE FIRST PART OF THE MAJORITY OPINION IS FILLED WITH MAGIC

In holding that the court of appeals had authority to consider the appellant’s belatedly urged ground of error, that was not raised on direct appeal or in a motion for rehearing when the cause was originally pending before the court of appeals, I find that the majority opinion closely resembles one of the great Houdini’s magical acts; now you see it, now you don’t.

To warm up the audience, the majority opinion first tells it about some well known general principles of law, namely, this Court’s power and authority to review decisions of the court of appeals; this Court’s power and authority to remand cases to courts of appeals; jurisdiction of courts of appeals over direct appeals; the fact that if this Court reverses the judgment of a court of appeals and the court of appeals did not review all of the grounds of error raised on direct appeal, it will remand the cause to the court of appeals to review those grounds of error; and the fact that once this Court remands a cause to a court of appeals, it loses jurisdiction over the cause.

Then comes the sleight-of-hand trick. Without citation of any valid authority, the majority opinion states: “When jurisdiction over the cause is restored by remand neither statutes nor scanty prior decisions cited above dictate that the court of appeals is limited in its renewed appellate consideration of the cause to the terms of our order of remand.”

And now we remove the cape that covers the cage. Do you see one or two lions when before you only saw an empty cage? “Indeed, an ‘order’ that the court of appeals ‘consider appellant’s grounds of error’ in a criminal case is superfluous, for such is its function, and according to Article 40.09, Sec. 9 on direct appeal an appellate court is obliged to consider every ground of error it can ‘identify and understand,’ Ben-Schoter v. State, 638 S.W.2d 902 (Tex.Cr.App.1982), especially one that might cause reversal of a judgment of conviction.” You can actually now see two lions, can’t you? The first part of the statement is one lion and the second part is the other lion.

Ah, so you really enjoyed that magical feat, did you? Well, here comes another one. “Where not inconsistent Tex.Cr.App. Rule 211 incorporates Rules of Civil Procedure ‘to govern proceedings in the court of appeals in criminal cases.’ ”

Now we put the cape over the empty cage. “Pursuant to Rule 431, T.R.Civ.R. in effect when the San Antonio Court of Appeals rendered its decision, a brief may be amended or supplemented at any time when justice requires upon such terms as the court of appeals may prescribe [see now Rule 414(n), T.R.Civ.P. and prospective Rule 64(o), T.R.App.R.].” Now we again remove the cape from the cage. How many lions do you now see? One or two? You should actually see three because, in addition to the above, we learn that “A routine general remand should not foreclose availability of applicable rules of procedure. Thus, sufficiency of the evidence was properly made a ground of error in the court of appeals.” Here is the third lion: “[F]or this Court to issue an ‘order of remand’ to restrict the court of appeals in renewed exercise of its own jurisdiction, power and authority would seem to be an impermissible and unwarranted abridgment of constitutional grant of same to courts of appeals by Article Y, Sec. 6, Constitution of Texas, as implemented by Articles 4.03, 44.24 and 44.25, V.A.C.C.P.”

WHICH COURT, THIS COURT OR THE SAN ANTONIO COURT OF APPEALS, IS REALLY CONTEMPTUOUS?

When I asked whether the court of appeals was guilty of contemptuous conduct, see ante, by the above statement, the majority opinion causes me to now ask: By the majority opinion, if this Court, in a remand order to a court of appeals, restricted what the court of appeals might review on remand, would this Court be guilty of contemptous conduct?

*799 WE DO A DISSERVICE TO THE COURTS OF APPEALS BY NOT CLARIFYING THEIR AUTHORITY TO ACT AFTER A CASE IS REMANDED FROM THIS COURT TO AN INTERMEDIATE COURT OF APPEALS

My research reflects or indicates that this is the first time that the issue of just what authority an intermediate court of appeals has to act after a cause has been remanded to that court by this Court has presented itself before this Court.

Instead of intelligently addressing this issue, the majority prefers instead to engage in magical tricks with the law.

By what I have said and what I am about to state, regardless of what the San Antonio Court of Appeals might have concluded from this Court’s summary denial of the appellant’s motion for rehearing, I want to make it absolutely clear that what is before us today does not concern either the situation where this Court has summarily refused without opinion or comment a petition for discretionary review or summarily denied without opinion or comment a motion for rehearing, because neither has any precedential value, nor does what is before us concern what the court of appeals might have done on its own motion when the cause was originally pending before that court, before its first judgment became final. See, e.g. Shannon v. State, 693 S.W.2d 390 (Tex.Cr.App.1985); Williams v. State, 692 S.W.2d 100 (Tex.Cr.App.1985); Hill v. State, 690 S.W.2d 900 (Tex.Cr.App.1985); Gonzales v. State, 689 S.W.2d 231 (Tex.Cr.App.1985); Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App.1983). Also see Laday v. State, 685 S.W.2d 651, 653 (Tex.Cr.App.1985) (Clinton, J., concurring opinion); Turner v. State, 662 S.W.2d 357 (Tex.Cr.App.1984) (Clinton, J., dissenting opinion); Lam brecht v. State, 681 S.W.2d 614 (Tex.Cr.App.1984); Noel v. State (Tex.Cr.App., No. 827-83, delivered March 14, 1984). But cf. Lopez v. State (Tex.Cr.App., No. 509-83, March 28, 1984); Todd v. State, 661 S.W.2d 116, 118 (Tex.Cr.App.1983); Howeth v. State, 645 S.W.2d 787 (Tex.Cr.App.1983).

Given the circumstances of this cause, I am compelled to hold that when this Court denied the appellant’s motion for rehearing without opinion or comment such ruling had no precedential value whatsoever. It certainly did not constitute an endorsement or approval by this Court of the appellant’s allegation that the evidence was insufficient to support the verdict of the jury, as the court of appeals took the liberty to conclude.

WHAT HAS LONG BEEN THE LAW OF THIS STATE

What the majority of this Court refuses to accept in this cause is the well known legal axiom that after a cause is remanded from this Court to the court of appeals, following disposition of a petition for discretionary review, an intermediate appellate court has no lawful authority or power to exceed the terms of this Court’s remand order. To allow an intermediate appellate court to do otherwise is to run afoul of the principle expressed in Gambill, supra: “Belatedly to present new grounds in such piecemeal fashion is inimical to rights of an opposing party and valid interests of this Court in orderly procedure and judicial economy.” (107).

When this Court grants a petition for discretionary review, the appropriate court of appeals loses authority and power to do anything further with the cause until and unless we remand the cause to that court for it to do something further. If we do so, the court of appeals’ authority and power to thereafter pass upon issues is circumscribed or limited by the express language of our order remanding the cause. In this instance, the San Antonio Court of Appeals was expressly told that it was to consider “appellant’s grounds of error.” It declined to do this, opting instead to review a ground of error that was not extant when this Court entered its order of remand. Nor did the appellant, in her motion for rehearing, seek any clarification of this Court’s order of remand.

WAS THIS COURT’S ORDER OF REMAND OBVIOUSLY CLEAR?

In this regard, if it obviously appears from a fair and reasonable construction of *800 the language employed in the opinion or decision of the higher court remanding the cause to the lower court, that the issues are limited on remand, then the lower court should consider only those issues, and no others, sua sponte or otherwise, and it matters not that the lower court may doubt the propriety of the higher court’s order, nor that it might differ with its opinion, decision, or conclusions. This has long been the law of this State, at least until today when this Court first came into contact with the meaning of one of its remand orders. See Cole v. Estell, 6 Tex. 175 (Tex.Sup.Ct.1887). Also see Price v. Gulf Atlantic Life Ins. Co., 621 S.W.2d 185 (Texarkana Civ.App. — 1981), (No writ history); Kelley Const. Co. et al. v. Page, 269 S.W.2d 689 (Waco Civ.App. — 1954) (No writ history)); Texon Drilling Co. et al. v. Elliff et al., 216 S.W.2d 824 (San Antonio Court of Civil Appeals 1948) (No writ history).

Interestingly, in First State Bank of Bishop v. Grebe, 162 S.W.2d 165, 168 (San Antonio Court of Civil Appeals 1942, ref. w.o.m.), the predecessor to the San Antonio Court of Appeals stated the following: “[EJvery order of an appellate court reversing and remanding a cause ... carries with it the necessary instruction, whether expressed or not, that all further proceedings in the case ... must be ‘consistent with the opinion’ of the reversing court; that qualification is understood, is implied by necessity, so that, at least usually, it adds nothing to the result to write it into the opinion or include it in the mandate.”

And yet, in this instance, the San Antonio Court of Appeals reasoned that it could consider the belatedly urged ground of error because of the provisions of Art. 44.33, V.A.C.C.P., also see Rule 211, Tex.Cr. App.R., which expressly provides that after the record is filed in the appellate court the parties may file such supplemental briefs as they may desire before the case is submitted to the court. But, as I have tried to point out, the ground of error was not presented to that court before the case was submitted to that court; it was submitted to that court long after that court had lost jurisdiction over the case.

After this Court granted the State’s petition for discretionary review the first time, the court of appeals no longer had jurisdiction over the cause; jurisdiction over the cause was then vested solely in this Court. However, once this Court’s decision remanding the cause to that court became final, jurisdiction over the cause was automatically vested in the court of appeals and no other court, but only to the extent of the terms of our order of remand. In this instance, the court of appeals erred in exceeding the terms of our remand order.

I believe that this Court’s remand order sufficiently directed the San Antonio Court of Appeals to consider only the grounds of error that were extant when the cause was originally pending in that court, and I have found no exception in our law that might have warranted the court of appeals to exceed the terms of our remand order. If the phrase “for consideration of appellant’s grounds of error” does not limit itself to those grounds of error that were extant when the cause was pending in the court of appeals, then I believe the majority should get out its magic wand and explain why this is not so.

Therefore, in this instance, I would hold that the court of appeals was not authorized to consider appellant’s belatedly urged contention that the evidence was insufficient, and, without more being present, I would reverse the judgment of the court of appeals, and remand this cause to that court for it to consider only those grounds of error that the appellant had timely presented to that court prior to its opinion and decision dated December 2, 1981.

I WOULD TREAT THE APPELLANT’S P.D.R. AS AN ORIGINAL POST-CONVICTION APPLICATION FOR HABEAS CORPUS AND HOLD THAT THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE VERDICT OF THE JURY

Although I do not agree with all of the reasons the majority opinion gives, or what the court of appeals stated, why the evi *801 dence is insufficient, I, nevertheless, agree, based upon this poorly developed factual record, that the evidence is insufficient to sustain the verdict of the jury finding the appellant guilty of murder.

Sufficiency of the evidence has now risen to constitutional dimension and may be attacked by way of post-conviction collateral attack, where the plea was not guilty. See Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). Cf. Ex parte Williams, 703 S.W.2d 674 (1986). To relegate this appellant to challenging the sufficiency of the evidence by way of Art. 11.07, V.A.C.C.P., would not cause the record to become better factually, and would certainly not promote judicial economy. Thus, but contrary to the majority opinion, I would consider the sufficiency challenge as though it had been presented to this Court pursuant to the provisions of Art. 11.07, supra.

I need not set out my reasons why I agree with the majority opinion's bottom line holding that the evidence is insufficient to sustain the verdict of the jury, because that would only elongate this opinion. I will simply refer the reader to what was alleged against the appellant, the charge to the jury, and the poorly developed facts by the prosecution, as they are set out in the majority opinion and the opinion by the court of appeals.

WHAT SHOULD OCCUR WHEN THIS CAUSE ARRIVES BACK IN THE TRIAL COURT?

I find that the majority opinion unnecessarily spends much time explaining why Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978), and its progeny should be expressly overruled. Although I agree that Moss, supra, and its progeny, should be expressly overruled, I do not believe that this is the opportune time to discuss that issue and make that decision. Also see the concurring opinion that I filed in Ibanez v. State, 749 S.W.2d 804 (Tex.Cr.App.1986). Because I am not prescient, I am unable to state what, if anything, might happen when the cause arrives back in the trial court. Therefore, to address this unknown is to only give real meaning to the word “dicta,” because in this instance we are not dealing with prohibiting the State from retrying the appellant for the lesser offense of murder.

CONCLUSIONS

For the above reasons, I respectfully dissent to this Court upholding the court of appeals decision to review the sufficiency ground of error. However, for reasons I have stated, I would construe the appellant’s petition for discretionary review as an original post-conviction application for writ of habeas corpus, would hold that the evidence is insufficient to sustain the jury’s verdict, and would then grant the writ and remand the cause to the trial court with instructions to enter a judgment of acquittal as to the offense of murder.

Further, I saith not at this time.