noting that majority's holding on "transferred intent" issue was "entirely necessary to the majority's disposition of the appeal" and stating that "transferred intent" principles in Section 6.04(b)(2) should not apply when defendant in a single act kills intended victim and an unintended victim
How later courts described this case
- noting that majority's holding on "transferred intent" issue was "entirely necessary to the majority's disposition of the appeal" and stating that "transferred intent" principles in Section 6.04(b)(2) should not apply when defendant in a single act kills intended victim and an unintended victim
- collecting cases, including Lopez, in which “improper comments . . . occurred during closing arguments which is the last thing the jury hears before it begins deliberations; in those cases, this Court held an instruction to disregard could not have cured the error”
- holding that affirmative acceptance of previously challenged evidence waives any error in admission
- evidence supported capital murder conviction under a transferred intent theory and under a nontransferred intent theory
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Roberts v. State, 2008 Tex. Crim. App. LEXIS 1570 (2008)
902 S.W.2d 428, 443 (Tex. Crim. App. 1995) (collecting cases, including Lopez, in which “improper comments . . . occurred during closing arguments which is the last thing the jury hears before it begins deliberations; in those cases, this Court held an instruction to disregard could not have cured the error”), overruled on other grounds by Roberts v. State, 273 S.W.3d 322
Overruled in part by Roberts, Sheldon (2008)
We overrule Norris to the extent that
Overruled in part by Norris, Michael Wayne (2009)
We overrule Norris to the extent that it allows such use.
The opinion
BAIRD, Judge,
concurring.
In points of error one and two appellant contends the evidence was insufficient to support his conviction because the doctrine of transferred intent does not apply to the instant case. See, Tex.Penal Code Ann. § 6.04(b)(2). The majority holds the doctrine of transferred intent applies when the defendant kills a bystander as well as the intended victim. I write separately because I believe the majority’s expansive discussion of this issue is unnecessary.
In the instant case, appellant shot at the mother intending to kill her. However, the bullet hit and mortally wounded the infant. Although the shot also injured the mother, her wound was not fatal. After the infant’s death, appellant entered the room and continued to shoot the mother. Appellant left the room, returned and shot the mother again. The evidence is clear the mother was mortally wounded by a subsequent shot, after the infant was killed. 1
Appellant was convicted of murdering more than one person during the same criminal transaction. Tex.Penal Code Ann. § 19.03(a)(6)(A). 2 Tex.Penal Code Ann. § 19.02(a)(1) provides that a person commits murder if he “intentionally or knowingly causes the death of an individual.” Thus, the State’s burden in the instant ease was to prove appellant had the specific intent to kill both victims. Id.
A defendant may not avoid criminal responsibility simply because the person killed was not the intended victim. The doctrine of transferred intent, codified at Tex.Penal Code Ann. § 6.04(b)(2), provides:
(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
⅜ 9fC ⅜ # ⅜ ⅜
(2) a different person or property was injured, harmed, or otherwise affected.
An illustration of the doctrine of transferred intent is found in Williams v. State, 667 S.W.2d 507 (Tex.Cr.App.1978). The defendant and several others were visiting at a friend’s residence. The defendant stood and pointed a pistol at Cook. Another friend, Busby, entered the room. The defendant shot at Cook but the bullet struck Busby. The defendant was convicted of the attempted murder of Busby. Id., 567 S.W.2d at 507-508. On appeal the defendant contended the evidence was insufficient to demonstrate he specifically intended to cause Busby’s death and that the doctrine of transferred intent (§ 6.04(b)(2)) did not apply to Tex.Penal Code Ann. § 19.02(a)(1). Williams, 567 *452 S.W.2d at 508-509. We held the defendant’s intent to kill Cook was presumed when he fired the pistol. Under § 6.04(b)(2) that intent was sufficient to support a conviction for the attempted murder of Busby. Williams, 567 S.W.2d at 509. See also, McNeal v. State, 600 S.W.2d 807 (Tex.Cr.App.1980) (Tex.Penal Code Ann. § 6.04(b)(2) applies to prosecutions under Tex.Penal Code Ann. § 19.02(a)(1)); and, Aguirre v. State, 732 S.W.2d 320 (Tex.Cr.App.1982) (Opinion on Rehearing) (Doctrine of transferred intent applies to prosecutions under Tex.Penal Code Ann. § 19.02(a)(3).).
Consequently, under the doctrine of transferred intent, § 6.04(b)(2), appellant is criminally responsible for the infant’s death. However, appellant contends the evidence is nevertheless insufficient to support a conviction under Tex.Penal Code Ann. § 19.03(a)(6). Specifically, appellant contends he lacked the intent to cause the death of the mother because that intent had been transferred to the infant. Appellant argues that it is improper to transfer the intent to cause the mother’s death to the infant, and, retain that intent to prove the mother’s murder.
Appellant correctly argues that we have never addressed this issue, and invites us to adopt the reasoning of two eases from the Courts of Appeal in California. People v. Birreuta, 162 Cal.App.3d 454 , 208 Cal.Rptr. 635 (5th Dist.1984); and, People v. Czahara, 203 CaLA.pp.3d 1468, 250 Cal.Rptr. 836 (1st Dist.1988). In these cases the Courts reasoned:
The purpose of the transferred intent rule — to ensure that prosecution and punishment accord with culpability — would not be served by convicting a defendant of two or more attempted murders for a single act by which he intended to kill only one person.
Czahara, 250 Cal.Rptr. at 839 (emphasis added).
We should decline appellant’s invitation to determine the correctness of this reasoning because it is not applicable to the instant case. When appellant realized he had killed the infant but not the mother, appellant continued to shoot and eventually killed the mother. Thus, the murders were not committed in “a single act.” Consequently, appellant was criminally responsible for both murders and the doctrine of transferred intent was not impermissibly expanded.
On the other hand, the majority accepts appellant’s invitation, considers those cases but holds that such reasoning, when applied to § 19.03(a)(6) would lead to “anomalous results.” Ante at 441. Because the majority’s discussion of that issue is not essential to the resolution of the instant case it is merely obiter dictum, 3
With these comments I join only the judgment of the Court.
. Appellant's testimony establishes that he shot the infant once and then shot the mother. The State’s case indicates that both the infant and the mother suffered several gun shot wounds.
. In 1993, the Legislature expanded the acts which constitute capital murder under Tex.Penal Code Ann. § 19.03. § 19.03(a)(6) is now found at § 19.03(a)(7).
. Judge Clinton believes the majority’s discussion of this issue is more than obiter dictum because of the manner in which the majority frames and resolves the issue. Ante, at 434. I disagree. Regardless of the manner in which the issue is framed and resolved, the facts remain the same; the murders were not committed in "a single act.” Consequently, the majority’s discussion of transferred intent, as it relates to two murders in “a single act,” is not essential to resolve this point of error.