Norris v. State

CLINTON, Judge,

concurring.

Judge Baird maintains in Ms concurring opimon that we need not address the merits of the issue appellant raises in his first two points of error regarding application of V.T.C.A. Penal Code, § 6.04(b) to the facts of the instant case. I agree. Nevertheless, without explanation the majority addresses *449 the issue anyway, and I cannot readily dismiss the majority’s disposition as obiter dictum, as Judge Baird does. I therefore write separately.

I.

The trial court charged the jury abstractly on the law of transferred intent as set out in § 6.04(b)(2), supra, viz:

“A person is ... criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different person or property was injured, harmed, or otherwise affected.”

In the application paragraph the trial court then authorized the jury to find, essentially, that if it found appellant, intending to cause the death of Georgia Rollins, caused the death of her child instead, it could find him criminally responsible for causing the child’s death. The trial court further instructed the jury that should it find appellant also intentionally caused Georgia’s death, it could convict appellant of capital murder under former V.T.C.A. Penal Code, § 19.03(a)(6)(A), now § 19.03(a)(7)(A).

If the evidence showed conclusively that appellant killed both Georgia and the child in a single act, I would agree that we were confronted in this case with the issue the majority addresses, viz: whether under § 6.04(b) the State may in effect use the same intent twice, both to authorize a finding that appellant murdered Georgia, whom he specifically intended to kill, and did, and also to authorize a finding that he murdered the child, whom he did not specifically intend to kill, but did, and thus obtain a capital conviction for multiple murder. Under the bizarre facts of this case, the evidence might support a finding that appellant killed both mother and child in a single shot, notwithstanding that later shots were fired. However, the evidence also supports a theory that, intending to kill Georgia, appellant first inadvertently caused the death of the child, and then shortly after, in a separate act, he intentionally killed Georgia. I agree with Judge Baird that under this scenario, the same intent was not used twice. Instead, appellant’s intent to kill Georgia with the first shot was transferred to render him culpable for the death he did cause, the child’s. When he subsequently fired again, intending to kill, and actually killing, Georgia, he committed a second act by which he became criminally responsible for her murder too. Given this theory of the case, the State was entitled to an instruction on transferred intent because the jury needed to know that it was entitled to find appellant murdered the child with the first shot even though he had intended to kill Georgia instead.

Appellant could have requested an instruction to the jury that, should it find from the evidence that he caused the deaths of both Georgia and the child with a single shot, it could not rely on the doctrine of transferred intent for any purpose. Had appellant requested such an instruction, and the trial court denied it, then the issue that the majority addresses would be squarely presented: Does § 6.04(b) authorize using the same intent twice when a single act by the accused causes both the result intended, and another, unintentional result that would constitute an offense if he had intended it? Instead, appellant objected globally that the jury should not be instructed on the law of transferred intent at all. In my view this was an insufficiently specific objection to present the issue the majority purports to resolve today. Tex. RApp.Proc., Rule 52(a). Thus the error appellant raises on appeal has not been preserved. That is all the majority need say.

II.

Judge Baird reasons that because the majority could have disposed of appellant’s transferred intent argument without reaching the merits, the majority’s treatment of the merits constitutes obiter dictum. While nothing would please me more than to believe that the gloss the majority places upon § 6.04(b), supra, is not an authoritative one, I simply cannot agree with Judge Baird that it is dictum. Obiter dictum is “[wjords of an opinion entirely unnecessary for the decision of the case.” Black’s Law Dictionary, at 1072 (6th ed. 1990). The majority disposes of appellant’s transferred intent argument by construing § 6.04(b) to allow the jury to use the same intent both to hold the accused *450 criminally liable for the result he intended, and did in fact cause, and to hold him liable for the result he did not intend, but inadvertently caused. The majority offers no additional or alternative resolution to appellant’s transferred intent argument. The only rationale that the majority proposes is its construction of § 6.04(b). That construction is therefore entirely necessary to the majority’s disposition of the appeal. It is in no sense obiter dictum. Unlike Judge Baird, I feel compelled to address it.

The majority first concludes that § 6.04(b) may be applied in a prosecution for capital murder under § 19.03(a)(6)(A), supra. Majority op. at 441. This is an unremarkable conclusion. There is no language of limitation in either provision to indicate otherwise. Next, the majority proceeds to reject appellant’s argument that § 6.04(b) “should not be applied to a murder prosecution for the unintended victim where the defendant also kills the intended victim.” Majority op. at 441. It is here that the majority’s analysis, such as it is, goes astray.

First the majority divines that the purpose of the transferred intent doctrine, as gleaned from several California cases, is to insure that criminal offenders do not escape the full brunt of the law simply because they cause a condemnable result different than the one they set out to cause. The California cases reason that, if the offender actually does cause the result he intended, he may be punished adequately for that offense. Ancillary criminal liability for any other result he may have caused, out of recklessness or negligence, may also be imposed, of course. There is simply no need to apply any notion of “transferred” intent to punish the defendant to the full extent his culpable mens rea would seem to call for. Majority op. at 441. From this premise, the majority distinguishes, viz:

“Here, however, the Texas Legislature intended to aggravate the punishment for multiple murders, like those here, to that for a single capital offense. * * ⅜ Therefore, the rationale in the California cases for not applying the transferred intent doctrine in a murder prosecution for the unintended victim where the intended victim is also killed is not applicable to a capital murder prosecution under Section 19.03(a)(6)(A).”

Majority op. at 441. With all due respect, this is, to put it in the best light, a complete non sequitur. At worst, it totally begs the question.

Nobody denies that in § 19.03(a)(6)(A) the legislature meant to criminalize as a capital offense the “murder” of more than one person during the same criminal transaction. The question here, however, is whether both killings during the same transaction may be considered “murder” for purposes of this provision where the killer only ever intended to kill one person, and only incidentally caused another to die as well. This constitutes capital murder only if the single murderous intent will serve to elevate both homicides to the level of “murder.” Thus we are left with the question that we began with: Does § 6.04(b) authorize using the self-same intent-to-kill to make both homicides — both the intentional one and the one not specifically intended — “murders” for purposes of § 19.03(a)(6)(A)? The majority simply assumes that it does.

Rather than try to conjure “anomalous” consequences of a construction it clearly does not prefer, majority op. at 441, the majority would do better to focus first on the language of § 6.04(b) itself. Where the meaning of a statutory provision is plain on its face, we are obliged to effectuate that meaning unless to do so leads to absurd results. Boykin v. State, 818 S.W.2d 782, at 785 (Tex.Cr.App.1991). On its face § 6.04(b) applies only when there is a “difference between what actually occurred and what [the accused] desired, contemplated or risked[.]” It deems an accused “criminally responsible” to a level commensurate with the offense he “desired, contemplated, or risked” whenever “the only difference between” that offense and “what actually occurred” is that “a different offense was committed” or “a different person or property was injured, harmed, or otherwise affected.” Section 6.04(b) does not provide, however, that if “what actually occurred” was both the offense “desired, contemplated, or risked” and an additional offense that was not specifically intended, then the State may *451 prosecute the accused for the unintended offense at the same level of criminal responsibility at which it will also prosecute him for “the desired, contemplated or risked” offense. The provision does not speak of “additional” offenses, but of “different” ones.

Nor does this plain reading of § 6.04(b) reap absurd results. The Legislature may well have intended that in a multiple homicide situation, where the killer only intentionally or knowingly caused the death of one of his victims, the killer should be prosecuted dually for murder and some other lesser homicide, but not for capital murder. Surely it is not hard to credit a legislative judgment that such a scenario does not call for the most extreme remedy at its disposal. The majority clearly favors a construction of § 6.04(b) that would render such a killer eligible for the death penalty under § 19.03(a)(6)(A), supra. The best indicator of legislative intent, however, is the plain language of § 6.04(b) itself. That a majority of this Court prefers a different construction than the plain language affords is no basis to reject the apparent legislative intent as absurd.

For this reason I can only concur in the result the majority reaches. I cannot join its ill-considered, and in any event, gratuitous, rationale.