Garrett v. State

mented Articles and 44.25 former

аrticle 44.24. GARRETT, Joyce Appellant, Lee Lewis For those reasons I would conclude that (14th) Appeals Houston Court of Texas, Appellee. STATE precluded by not order remand No. addressing 642-83. deciding appellant’s second point and, contrary, error Texas, Appeals Court of Criminal dutybound to consider it. En Banc. suggested point But it is June 1986. properly error is not before Houston (14th) place first because the Rehearing April On Denial of bargain plea trial court honored a as to punishment give permission did not

appeal pursuant to former article 44.02. In

King (Tex.Cr.App. S.W.d 762

1985) (Clinton joining judgment, at 766-

767); (Tex. Dees v. (Clinton dissenting,

Cr.App.1984) at 406-

408), Morris (Clinton

(Tex.Cr.App.1986) dissenting, slip ff),

opinion, fallacy at 10 of such a

suggestion Capsuled is demonstrated.

Morris, proposition is the that for

mer article 44.02 was not intended “to re alleged

strict deficiencies

entry itself, improper plea e.g., ad Id., at 779-780.

monishment[.]”

Indeed, original submission did hesitate entertain

point one; did consider it

point, it reversed conviction nature of

because the “conditional”

plea involuntary yet, rendered trial — given permission appeal had not below, issue! Neither the court

State in PDR nor this Court doubted

jurisdiction, power authority to rule on

point one.

Furthermore, jurisdiction Houston

(14th) Appeals having prop- Court of been

erly points invoked determine other

error, I properly would hold that the court point

could and should have considered justice”

error two “in interest of State, supra.

otherwise. Carter v.

Therefore, respectfully I dissent to refus-

al of review. Gaasbeck, Stevens, Stephen E. Van

Mark counsel, Chapman, Anto- K. San David nio, appellant. Laredo, Borchers, Atty., R. Dist.

Charles Huttash, Atty., Alfred State’s Robert Austin, Atty., Walker, First Asst. State’s for the State. AND ON APPELLANT’S

OPINION PETITIONS FOR STATE’S REVIEW DISCRETIONARY CLINTON, Judge. found

By jury its verdict charged in indict- “guilty murder as convicted, duly Appellant ment.” punishment by the court her assessed trial years thirty at five confinement. Anto- appealed cause was San The. Appeals, nio Court of which reversed unassigned fun- on the basis of conviction charge to court’s damental error the trial phase guilt of the the conclusion State, of the trial. Garrett v. 1981). The (Tex.App. Antonio —San court court of held that trial apply fundamentally erred it failed to transferred intent to the facts the law of Code, See Penal case. V.T.C.A. granted 6.04(b)(2). This § contemplated State’s review error not under terms of disagree. and reversed the decision of the order. our remand We appeals, holding failure apply September 1,1981, by Effective virtue of law transferred intent to the facts V, approval of amended Article Consti § case court’s does consti- Texas and tution of enactment of amend tute fundamental error.1 The ments to Articles 4.04 and and of remanded to the con- “for 44.45, V.A.C.C.P., Article this Court has appellant’s (assigned) grounds sideration of jurisdiction, power authority to exer State, v. Garrett error.” 642 S.W.2d judicial to cise sound discretion review deci 779, 781 (Tex.Cr.App.1982). Appellant filed appeals courts of in criminal sions of cases. rehearing a motion for in this Court Court, Supreme this Like the Court has argued she for the first time plenary power upon dispose to of a support evidence was insufficient “as law and nature case jury’s verdict. This motion was denied. may require,” including remanding it to the

Subsequent appeals to our remand of the cause court of from whence it came. Ar 44.24(b), 44.25, 44.45(b)(7) filed an appeals court of ticles and Tex.Cr. 304(k). App.Rule brief in that court in which he appro amended And when deemed argument routinely that the priate reiterated his evidence the Court has remanded to State, v. appeals: e.g., was insufficient the conviction. Sanchez courts of agreed, Ben- appeals again (Tex.Cr.App.1982); The court of 628 S.W.2d 780 State, conviction, v. appellant’s (Tex.Cr. Schoter and this time 902 versed State, Finch v. App.1982); remanded to the trial court with instruc- 414 S.W.2d State, Cosper v. acquittal (Tex.Cr.App.1982); tions that an order be entered observed, however, (Tex.Cr.App.1983); Szilvasy cause. It was S.W.2d 839 State, precluded (Tex.Cr.App.1984).2 State from re- “[t]he of- trying on lesser included Jurisdiction, power authority to de- fense of murder.” Garrett v. cause on direct ordinary cide an criminal (Tex.App. 101-02 Antonio S.W.2d —San appeal in courts of is now vested alone 1983). V, appeals. Article Constitution of § Texas, 4.03, Article “Once Y.A.C.C.P. PETITION STATE’S invoked, jurisdiction of an court is essentially The State has raised what reviewing of its functions is limit- exercise in its grounds amounts to three for review by its or a valid only ed own discretion petition. grounds We will examine these Carter statute.” restrictive seriatim. (Tex.Cr.App.1983). S.W.2d Now compare jurisdiction of this delineation of Initially argues after 4.04, V.A.C.C.P., to “re- Court in Article Court this remanded cause to the appeals any decision of a court view appeals appellant’s for consideration case.”3 criminal error, assigned grounds that court cause, ap- a court of jurisdiction to entertain an As in this where without amend judg- supplemental raising grounds peals or a decision that reverses ed renders brief pass question corpus proceedings; decisions annotat- We do not on the see also 1. now whether appeals perceived 44.37, the errоr would supra. Article ed under error constitute fundamental under decision (Tex.Cr.App.1985). Almanza 3.Thus, that this Court denied mo- petition first for tion for on the State's mean the review does not Court opinions In several of those Article V.A. passed, expressly implicitly, on or the merits of C.C.P., conferring authority is cited as of insufficient made for the the claim grant summarily Court discre- Ordinarily this Court refuses first time therein. tionary review and to remand the cause grounds Yet, not raised entertained in review of of arti- further consideration. cles context appeals, Lambrecht v. immediately surrounding particular the court statute, only appeal" "orders on relate to habeas S.W.2d 614 414(n), ruling may prescribe on all now Rule T.R. without ment of conviction [see 64(o), appeal, grounds prospective T.R.App. error raised on and on Rule Civ.P. and determines discretionary review this Court general remand should not A routine P.]. is errone- reason for that decision applicable that the availability of rules of foreclose judgment of the court reverses the ous and Thus, sufficiency of the procedure. evi- a bar what- have removed as appeals, we ground made a of error properly dence was pretermit court below to ever led the error appeals. the court within its of other matters determination jurisdiction of Finally, since review authority on power and direct jurisdiction, solely to correсt sua Court was invoked nothing left for this Court appeal. There error” —a sponte of “fundamental review, court of is to disposition that caused appeal jurisdiction its direct exercise juris- exercising its own conclude further disposition of proper the cause over the cause—for this Court to diction it to court of is to remand remand” restrict issue an “order of peals purpose. for that appeals in renewed exercise of its court of judgment of revers- the this Court When jurisdiction, power authority and own appeals judgment of court of and impermissible an and would seem remanding the cause to that court becomes abridgement constitutional unwarranted of final, relinquished has its review this Court by grant appeals of Arti- of same to courts in jurisdiction the cause. Finch Texas, V, 6, imple- of as cle Constitution § (Tex.Cr.App.1982). Re- S.W.2d 4.03, 44.25, and by mented Articles 44.24 purely simple is a in that instance mand V.A.C.C.P. procedural return cause to the device to that the For these reasons we conclude instructing appeals. court of No order appeals authority was within its court appeals jurisdiction, to exercise its court brief, entertaining appellant’s and amended power authority necessary for and is it to now to the substance of we turn consider proceed appeal. to decide the direct When holding its that the evidence was insuffi- jurisdiction by over the cause is restored prior support appellant’s conviction. scanty cient to remand neither statutes nor decisions cited dictate that the court above alleged appellant indictment appel- is in its appeals limited renewed of an indi- “knowingly the death cause[d] late consideration of the cause to terms Bennett, shooting vidual, Betty Lynn of our order remand. Though already gun.” her set out with a Indeed, ap an court of “order” appeals opinions both peals appellant’s grounds “consider er below, briefly rehearse the evidence we superfluous, ror” in a criminal case jury’s light most favorable ver- function, according to such is its Arti evening September dict. On the appeal appellate cle 9 on direct § deceased, her husband their obliged ground every to consider having barbeque at three children were understand,” “identify error it can of their trailer home in table outside (Tex. Ben-Schoter S.W.2d Springs. Also park in Carrizo trailer might Cr.App.1982), especially one that neighbor, Bill Rankin. present was a reversal of a of conviction. evening, during course of the Sometime up the de- appellant drove and asked Tex.Cr.App.Rule Where inconsistent Bennett, to daughter, ceased’s Sarah Gail incorporates Procedure Rules Civil join appellant them permission obtain proceedings court of govern “to car, saw a rifle at table. Sarаh peals to Rule in criminal cases.” Pursuant loaded, that it had appellant told her it was San An- T.R.Civ.P. in effect when the appellant safety no and that wanted its deci- Appeals tonio rendered previously he had sion, Rankin because supple- shoot brief be amended Nevertheless, dog. requires shot justice at time when mented join group. appeals lant allowed to terms as the court of such Sarah and the deceased soon retired to her aware that conduct was reasonably the trailer to do the dishes. Subsequently certain to cause the actual result rather they argument heard an break out between merely than the desired result. V.T.C.A. appellant and Rankin dog about the Code, 6.03(b).”4 Penal Sec. had been shot. Sarah watched from the Garrett v. 642 S.W.2d at 781. Seiz- appellant approached car, door as her ing upon language appeals court of trieved the rifle and leaned over the trunk concluded that the State had failed to sus- car, pointing the rifle toward the tain proving burden of a know- Although trailer. no testify witness could ing killing of the deceased in this cause. positively appellant aiming argument The State’s second is that the Rankin, Rankin himself testified he was court of in interpreting erred trailer, somewhere between the car and on the State’s first for dis- appellant. with his back to Sarah beckoned cretionary holding review as that under the door, to the deceased to come to the and as charge given they appellant jury was not looked on fired. The autho- bullet head, killing struck the deceased in the rized to convict theory her. on a Yet, transferred intent. while it is true charge jury the trial court opinion, that was not the of our authorized the to convict inevitably that conclusion nonetheless fol- upon finding knowingly that she “did ... lows from what was observed. The court individual, Betty cause the death of an relied on Benson v. Bennett, Lynn by shooting her with a (Tex.Cr.App.1982), S.W.2d708 where it was gun.” Immediately appears thereafter determined that courts should an abstract statement of the sufficiency the “review the evidence in a law transferred intent as defined under light 6.04(b)(2), most supra. by in favorable to the verdict com- charge Nowhere the § paring was the the applied law transferred intent evidence to the indictment as See, the developed Id., facts that were at incorporated trial. into charge.” the at e.g., McClung, Jury P. Charges For Texas theory incorpo- 715. Here the of murder (1985 ed.), pp. Criminal Practice at 222-23. paragraph in authorizing jury rated the the appellant Neither nor the State voiced guilty to convict did not allow for a verdict (or objection any other) deficiency to this in upon finding appellant, based a that while charge; special requested nor are there desiring, contemplating risking pursuant party instructions from either Rankin, death of committed an act which Art. in Y.A.C.C.P. the record. deceased, in resulted the death of the clearly theory propounded by was finding En route to that this omission did error, presentation State in its the evidence.5 constitute fundamental Rather, jury required Court observed: was to find that was aware her conduct dis- charge A on transferred intent is charging reasonably the rifle was certain by its nature favorable to the to cause the death of the deceased. Sec- detrimental to the defendant. With the 6.03(b), 6.04(b)(4) supra. tion If it did not wish to provisions of Sec. omitted from charge, particular proof prosecution presented shoulder this burden of upon bring proving burden of was incumbent the State to with ‘knowing’act in discrepancy which the defendant was to the attention of the trial 6.03(b), supra, provides: (Emphasis original. emphasis 4. Section All other supplied by person knowingly, "A the writer of this unless acts or with knowl- edge, indicated.) respect with to the nature of his conduct otherwise surrounding or to circumstances his conduct when he is aware of the nature of his conduct statement facts does not include the person or that the knowingly, arguments jury circumstances exist. A acts final and thus we do not knowledge, respect or with with theory argued know what the State the evidence a result of his conduct he is aware that supported. reasonably his conduct is certain to cause the result."

789 correction; must erred in it was not. otherwise we support argument the State cites acquiesced in the authori- the State assume of the 1974 cases decided before enactment only on the jury of the to convict zation State, Code, viz., Canedy Benson, 507 S.W. Penal charge. theory contained State, ‍‌​​‌‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌‌​​​​​​​​‌‌‌‌​‌‌​​​​​‌​​‍Davis v. State, Ortega (Tex.Cr.App.1974); 2d 743 701, at 668 S.W.2d supra; (1927); 292 S.W. Tex.Cr.R. (Opinion on (Tex.Cr.App.1983) n. 10 State, Salisbury v. State, 90 Tex.Cr.R. Boozer v. submission); original Banks v. (1921); Tex.Cr. S.W. (Pending on (Tex.Cr.App.1984) 5.W.2d Upon exami R. 211 S.W. 217 rehearing).6 The court motion for State’s of these same cases the court nation concluding that correct exception they appeals found “that without must mea- sufficiency of the evidence upon the de dependent that are theory of murder which against sured knowledge possessed requisite fendant viz., jury, submitted to the upon theory premised or the conviction knowingly caused the death lant jury of the instant not available deceased. verdict.” Garrett at 656 S.W.2d part of this argues agree with the latter Finally the State We knowing exegeses prove finding, as our of these cases is sufficient margin deceased, will show.7 killing of the and that all) (or anyone persuaded for malice to be that because the court’s deceased 6. We are not hence, penalty implied, to be charge abstractly for a of death transferred intent in a defined "3-A") imposed. in Banks ob- (designated appearing To this end the Court paragraрh imme- diately paragraph applying served: the law of after the “3”) (designated to the facts of the case murder deadly weap- deliberately uses a “One who was therefore authorized to convict such reckless manner as to evince on in upon theory. way In no can the fatally duty regardless heart of social (which application paragraph begins, incidental- mischief, firing into a bent on as is shown ly: bearing foregoing in mind the instruc- "Now beings moving human nec- train tions definition, be construed to refer to the abstract are, essarily shield himself from the cannot “reading so even as a disclaiming consequences acts mal- of his whole,” see Brown v. group per- may be toward a ice. Malice (Tex.Cr.App.1986); Doyle v. It sons as well as toward an individual. (Opinion rehearing), (Tex.Cr.App.1982) grudges former or antecedent exist without that could convict would not inform it any doing of The intentional menaces. theory. juxtaposition appellant on that Mere wrongful manner and under such act in such does not amount to authorization. the death of a human circumstances as that being may result therefrom is malice." State, supra, 7. In the defendant was Id., holding keep- Banks This was in 211 S.W. at 217. convicted of murder and sentenced to death. In malice is law notion that with the common exists, essence the evidence showed that defendant and another, implied, a hence murder whenever and walking along by while a dirt rоad run- willful act as a result of some death occurs track, ning adjacent pistols to railroad fired a where he the accused under circumstances passing into a train and that a brakeman was likely serious to cause death or knows the act is pistol killed a bullet from the the defendant Stumberg, bodily injury. generally, Crimi- See 305, Texas, have The contention on claimed to fired. L.Rev. nal in 16 Texas Homicide appeal was that the evidence failed to establish holding may as be found A similar 610, "guilty that the defendant was of that character Tex.App. early as in Aiken [viz., of homicide murder with malice] although murder in the conviction was for there punished by penalty should be the extreme of degree, penalty of as such a the second and Id., However, be, not, death." 211 S.W. at 217. and was assessed. death could not amended, by Davis, statutes had been supra, murder Acts supra, Salisbury, in- Both Leg., p. dispense 33rd ch. to with firing which defendants of shots volved murder, degrees single range warnings, of and to create a no at- meant as with claimed were death, Banks, punishment, including applicable Following of anyone. to kill tendant intent any killing specific unlawful "with malice afore- case held that no the Court in each thought,” regardless necessary of that malice was whether to establish murder intent to kill was implied. may express proper- wantonly recklessly or All that Banks into where one "shoots establish, then, ly occupied.” building be rеad is that under the car or known to him to be a Salisbury, supra, proscribing It must be statute then murder an accused did 211 S.W. at 902. specific these cases were decid- not have to intend the death of the remembered that when The record proof (c), is devoid “plinking of of subsection at beer in cans animosity appellant between de- and the lake go by while water skiers in the center Indeed, by ceased. all met they accounts availability the lake.” Absent law night for the first time on the of- case, of transferred intent in this the facts fense. On the other hand the record does support no more than a of “con- appellant expressed show had an intent very scious risk creation” similar Rankin, shoot an argument erupt- that example given in the Practice Commenta- two, ed between these appellant and that ry.8 then obtained rifle in and shot it Rankin’s conclude that We therefore the court of sig- direction. The of appeals found was in correct the evidence nificant that record does not establish support insufficient a verdict that appellant “knew” deceased was in the “knowingly” lant caused death de- trailer she fired. But whether not or ceased, proceed to examine trailer, she knew deceased was in do we review. support not believe the evidence can a find- ing that she acted with an that awareness was reasonably certain death оf deceased APPELLANT’S PETITION Certainly

to result. there existed a sub- Appellant raises several contentions rele- stantial risk someone the trailer vant observation would be But is nothing killed. there ante, appeals, noted not “[t]he large the evidence to indicate how the trail- precluded retrying on a er or had any whether idea lesser included offense of murder.” part in what of the trailer deceased Initially appellant argues located when the rifle was fired. Prac- the court The 6.03, supra, did, Commentary gives authorizing, tice as if erred it § example as “recklessness” defined theory retrial some alternative (that is, statutory proscribed long ed law murder and short of it is that these do cases killing aforethought,” involve, on, they "with malice prove Acts do not nor instructive 116; P.C., Leg., p. 33rd ch. Art. question the narrower facts whether their (more (1925)), manslaughter equiva- committed, or less the knowing murder was as that term present voluntary manslaughter, lent ex- 6.03(b) is defined in of the 1974 Penal Code. § cept that certain events which were were disregard may That a reckless for life have "adequate deemed to constitute cause” were penal constituted malice under former codes P.C., defined; statutorily 1128-1139(1911); Arts. place stand does mean also (1925)), negligent P.C. Arts. 1244-1255 "knowledge" showing as to mur- so (P.C. (1911); homicide Arts. 1113-1127 P.C. 19.02(a)(1). present § der under (1925)), Arts. 1230-1243 which was death Banks, (P.C. "negligence caused and carelessness” 8. Even we were to hold that (1911); (1925)), authоrity proposition "plinking” Art. Art. 1114 apparent P.C. but with at a (P.C. passing thereby causing "no intention to kill" Art. 1118 train and the death of Thus, (1911); (1925)). person P.C. Art. we what some on board unknown to the actor recognize involuntary manslaughter "knowing” killing, now un- constitutes a the facts Code, 19.05(a)(1), distinguishable. § der V.T.C.A.Penal if was evi- it instant case are Here the all, proscribed at had fall under one of these does show dence not that intended categories. disregard It seems natural then that the Court shoot at the trailer with utter for the malice, murder, Rather, implied sug- find should hence of and lives gests only those inside. evidence presented with evidence of to shoot intentional that she intended at Rankin. which, aware, any conduct while not meant to cause That she also aware, or should been was have death, particular unjustifiable ut- nevertheless evinced "such of the substantial and risk disregard posed ter and reckless of life as act shows this towards those situated behind enemy only guilty knowing- be man to State, an to all mankind." v. Aiken Rankin could make her those, did, supra, killing theory ly by at State, That 617. the rule reiterated one of she Canedy supra, only goes 6.04(b)(2), disprove supra. in v. transferred intent under § put Stumberg, supra, theory given jury, the thesis 312-318, forward in Since that was not to the and Legislature given that proper authorizing when the was amended no convic- P.C., 1927, (1925) by p. Leg., 1256 Art. Acts 40th for the tion tary manslaughter lesser included offense of involun- 412, 274, 1, 19.05(a)(1), supra, ch. "vol- sec. redefine murder as under § another, 12, untarily killing" post, negligent the intent was in- n. and see none at all for Code, 19.07, killings param- clude intentional within the V.T.C.A. homicide under Penal § leg eters of that offense. the State is left without a on. stand

791 proper- it not could Penal banc Court determined under V.T.C.A. of murder offense judgment one theo- and Code, ly that sentence.9 and maintains reform the § However, lesser ry though conceding of murder cannot constitute he could be theory of mur- included offense of another greater offense of reprosecuted V.A.C.C.P., der, and 37.- citing Arts. 37.09 habitation, under Burks v. burglary of a 302, Day v. 315- and States, 57 United U.S. 98 S.Ct. 437 rehear- (Tex.Cr.App.1976) (Opinion on 16 Massey, 437 v. (1978) and Greene 1 L.Ed.2d ing). do not believe Because we (1978), 2151, 57 15 98 L.Ed.2d U.S. S.Ct. in appeals’ can be construed observation reversing conviction and than Moss’ rather manner, we do not address such Court ordering entry acquittal, of an from the It seems clear us contention. the observation the cause with remanded by that the court cases cited prevent nothing in those cases would that permissible reprosecution was held to be offense which for the lesser included retrial of mur- only for lesser included offenses supported by evidence at trial. had been itself, der, any theory under not for murder fact, Presiding Judge Onion noted 19.02, supra. found § dissent, Supreme expressly his Additionally appellant contends that re- question, 7 preserved in footnote prosecution for lesser included offensе Thus, Massey, supra. Greene v. while by Jeop the Double in this cause barred Burks and Greene “prevent” do Fifth Amendment to the ardy Clause Moss, at in summarily arrived so Constitution, and invites us United States they support proceed, We it. neither do State, 574 to overrule Moss v. S.W.2d then, “reasoning” of the matter (Opinion rehearing) on (Tex.Cr.App.1978) Presiding Judge for Onion called including the cases relied progeny, two others. observing emphasized should be At outset it again appellant could tried on a lesser applica- analysis our does not involve offense, viz., Rogers v. included estoppel as parte tion of the doctrine of collateral Ex (Tex.Cr.App.1979); S.W.2d Harris, Jeopardy by the Double (Tex.Cr.App.1980); is embraced Swenson, (Tex.Cr. Granger Clause. Ashe 397 U.S. S.W.2d Taylor App.1980); Surely S.W.2d 929 25 L.Ed.2d 469 S.Ct. Moss, they may (Tex.Cr.App.1982), to the extent finding, such as that reprosecution. such be read to allow to sustain a convic- that the fails aggravating of an proof for lack tion Moss, prosecution supra, involved a element, have sufficient to would been but panel A burglary of a of this habitation. lesser, nonaggravated offense establish original the evi- Court on submission found nonaggra- reprosecution of the cannot bar burglary dence insufficient to establish of a ground that some on the vated offense habitation, nevertheless, finding that but offense proof as to that critical element includ- the evidence did establish lesser against has been deсided building, burglary ed offense Rather, analysis be- prosecution. first judgment to re- formed the and sentence language gins offense, with the literal and ends flect conviction for that af- Amendment, person no “be rehearing, en Fifth firmed. On motion for though even punishment would be assessed On motion for before the Court en argued range punishment for lesser offense as banc Moss that because a Oddly enough, observed punishment improper the Court then lower. sessed his Jones, have remanded "we should as it that in Court to reform the sentence punish- reassess the trial court to had in Jones v. 532 S.W.2d 596 the cause to done 1976), and Greene defendant (Tex.Cr.App. Under Burks wherein the trial had ment.” judge no less through Judge should be punishment. Speaking tried before trial assessed Dally, appellate upon acquittal an find- improper held Court to entitled to an ing we support the ver- regardless of whether insufficient reform the by jury guilty judge punishment, defendant found dict than a assessed appeal insufficient way is determined on this Court would have to in what since either dulge presumption the same term of evidence. that 792 subject for the offence same to be twice acquittal viction or in a trial court for a

put in jeopardy of life or limb.” given offense the Jeopardy Double Clause bars offense, retrial for the “same” and prohibition

The Fifth Amendment that determination of whether a second against jeopardy fully double was made offense, statutorily defined applicablе through different from states the Four upon teenth Amendment in which the accused Mary originally Benton v. land, 784, tried, 2056, 395 U.S. 89 S.Ct. 23 L.Ed. is nevertheless the “same” so as to (1969). 2d 707 Thus the subject State is bar subsequent prosecution for that of- separate guarantees the three recognized fense is through application made to be embodied in the Jeopardy Double rule stated in Blockburger v. United Clause, protection against viz.: reprosecu States, 299, 180, 284 U.S. 52 S.Ct. 76 L.Ed. following tion for the same offense an ac (1932): 306 quittal, against reprosecution for the same “... that where the same act or transac- following conviction, offense against and tion constitutes a violation of two distinct multiple punishments for the same offense. statutory provisions, the test to be Vitale, 410, 415, Illinois v. 447 U.S. 100 plied to determine whether there are two 2260, S.Ct. 65 L.Ed.2d 228 one, offenses or is whether each In Justices Municipal Boston provision requires proof of a fact which Lydon, 294, 1805, 466 U.S. 104 S.Ct. 80 the other does not.”10 (1984) L.Ed.2d 311 Supreme Court ob- parte McWilliams, See Ex served: question before us primary goal “The barring reprosecu- now, open by left Greene, Burks and is acquittal tion after prevent is to Jeopardy whether the Double Clause also mounting prosecu- successive reprosecution lesser, bars for a “same” of- tions thereby wearing down the de- fense, applying test, the Blockburger explained fendant. As was in Green v. acquittal offense follows an States, 184, 187-188, United 355 U.S. aрpellate determination that the evidence 199, 221, L.Ed.2d 78 S.Ct. 77 Ohio L.Abs. legally insufficient to that con- 202, (1957): 61 A.L.R.2d 1119 viction. idea, underlying ‘The one that is Distinguishing reversals for “trial er- deeply ingrained in at Anglo- least the ror,” after permissible, which retrial system jurisprudence, American following from reversals appellate find- the State with all its resources evidence, Supreme insufficient power should not be allowed to opined: Court Burks repeated attempts make to convict an offense, alleged individual for an a defendant’s conviction has “[W]hen thereby subjecting him to embarrass- proof been overturned due to a failure of ment, expense compel- and ordeal and prosecution at trial ... cannot com- ling him continuing to live in a state of plain prejudice, given for it has been ‍‌​​‌‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌‌​​​​​​​​‌‌‌‌​‌‌​​​​​‌​​‍anxiety insecurity, as well en- opportunity one fair to offer whatever hancing possibility even assemble, proof it could omit- [footnote though innocent he be found Moreover, such an rever- ted] ” guilty.’ government’s sal means that case Id., 1813, S.Ct. L.Ed.2d at 324. lacking was so that it should not have jury. It was even been Since beyond peradventure established submitted Ohio, 161, necessarily finality Brown v. we U.S. 97 S.Ct. afford absolute 2221, (1977) 53 L.Ed.2d jury’s acquittal con- verdict of matter —no Ohio, Expressly (1970)] 176, reserved in Brown v. Nielsen U.S. [In re] [131 672, question repetition (1889)]." was the "whether the S.Ct. 33 L.Ed. 118 432 U.S. at 6, proof required by prosecutions the successive n. 97 S.Ct. at n. 53 L.Ed.2d at against McWilliams, parte Brown would otherwise entitle him to n. 6. See Ex J., protection (1982) (Clinton, the additional dissenting offered Ashe [v. to denial of Swenson, 397 U.S. rehearing). 90 S.Ct. 25 L.Ed.2d leave to file motion for 137, 2207, States, difficult 432 U.S. 97 S.Ct. its decision—it is United

how erroneous greater (1977). any society any has did action how 53 L.Ed.2d 168 Nor to conceive when, on retrying prevent prosecution in a defendant of part interest on review, single of law greater is decided as a matter and lesser offenses within a have jury properly not in proceeding, could case that as was the Jeffers.11 guilty.” (Emphasis statutory a verdict of Though returned the identical retrial original.) ap in may permitted, offense even absent be necessity” plication of “manifest stan 2149-50, 57 at 437 U.S. at 98 S.Ct. dard, appel is at when mistrial declared conclud- at 12-13. Thus Court L.Ed.2d behest, Dinitz, 424 v. lant’s United States constitutionally ed that the State cannot 1075, 47 L.Ed.2d 267 U.S. 96 S.Ct. reprosecute for the identical a defendant (1976), exception clearly applica is not this following appellate statutory offense an Lastly concept here. there is the of ble insufficient evidence. continuing whereby an jeopardy, accused perceive anything inherent We fail to may following appel a second time be tried reasoning Supreme Court a late reversal on the basis of trial error of preclude application of the Block- Burks to jury conviction for a lesser offense from a reprose- burger test to determine whethеr acquitted him “impliedly” which cution for “same” offense would Georgia, greater offense. Price Jeopardy the Double Clause barred under 1757, 26 L.Ed.2d 300 U.S. 90 S.Ct. appellate insuffi following an reversal for offense, jeopardy As to the lesser jury’s a cient evidence. Since verdict the accused has has “continued” acquittal at the trial level bars retrial prosecu first asserted defect in the some any included offense consti lesser which tion, implicating sufficiency not evi tutes the “same” offense under Blockbur Bal dence to establish lesser offense. Ohio, supra, clearly es ger, as Brown v. ancing fact of the accused’s “limited tablishes, isit likewise difficult to conceive being waiver” of his interest retried any greater society reprose- interest has in against society,” to “fairness “lack cuting a defendant for that included lesser id., finality” proceeding, at U.S. simply is offense because it 1761, 4, at n. 90 S.Ct. n. L.Ed.2d lacking has found the evidence 305, 4, n. the Court has held accused to support conviction for the of subject reprosecution to in this limited con fense. That same evidence well text for the lesser included offense. prove support sufficient to a verdict guilt provide of the lesser offense does not proceeding In the cause instant justification try the de the State all as soon the court but final a second of fendant time “same” that the was insuffi- determined fense in order obtain conviсtion. murder, cient conviction subject

Moreover, only to Court’s recognized excep- none of the Be- power to determination. appears apply tions rule in Brown expressly found necessary cause. event That verdict, in its neither this establishing guilty of included could murder lesser offense is nor autho- the court have occurred been discovered since pellant’s trial, conceptually rized to and sentence first even reform unlikely. a lesser included possible, highly to reflect conviction for Jeffers however, remembered, (1984) against prohibition double 11. that “it is to violate To be allega- regardless viz., jeopardy, proceed settled law in State that for the State to trial charging consequence tions in instrument the after two counts of an indictment guilt, general predecessors of to verdict of as till plead guilty to two counts the same other 37.07, V.A.C.C.P.,mandated, is but one Article charged of- lesser included indictment fenses, punishment. and one conviction Drake prohibited Tex- nevertheless be would parte (Tex.Cr.App.1985) Ex [686 S.W.2d law, “soon as as a matter state common Thus, Siller, incorporated statutory ac- into law for criminal Johnson, presumably what was found in Ohio v. Siller, supra, at tions.” 493, 104 467 U.S. S.Ct. 81 L.Ed.2d 44.24(b), V.A.C.C.P., proceeded having offense under Article greater theless on the since judgment offense, “reformation of and sen- any properly well as authorized may only tence be donе to cause those offenses, lesser included the State has finding instruments to reflect the true possibility risked the obtaining a verdict the fact finder when such a is re- greater offense, proves, on on or, trial, flected the verdict in a bench appellate review, unsupported in to be pronouncement finding.” of the court’s overreached, Having evidence. thus as it Milczanowski v. 447 were, the State cannot be heard to com- All that remains plain that it has not had its one bite at the judgment acquittal. remand is to enter apple. No consideration of “fairness to act, essentially But for ministerial society” justify can the additional “embar- there is no lack finality judgment, in the rassment, expense and ordeal” to an ac- apply continuing and hence no basis to cused under these circumstances. jeopardy. Finally, it would be anomalous to hold What, then, society? of fairness to It is asserting his Fourteenth Amend- true that when an court deter- right only upon ment to be convicted insufficiency mines of the evidence and or- every verdict for which essential element entry acquittal ders of a proven beyond has been a reasonable jury deprived effectively opportu- of the doubt, Virginia, Jackson v. 443 U.S. nity any to consider lesser included of- (1979), S.Ct. 61 L.Ed.2d 560 properly fenses raised the evidence and lant has “waived” Fifth his Amendment charge.12 submitted in the court’s But this right to be free of the onus of successive doеs not mean the State has not had its prosecutions for what constitutes the same opportunity “one fair to offer whatever offense. proof it could assemble.” Even if the evi- following We therefore hold that dentiary deficiency proof of the pellate reversal of a conviction on the basis merely greater offense lies in a failure to of insufficient evidence to the ver- prove required the additional “facts es- dict, Jeopardy the Double Clause bars [greater] tablish the commission of the of- prosecution fense,” lesser included offense greater culpable mental state, greater, acquit- which is the “same” as the proof or the establishes an at- Blockburger. tempt greater ted offense under the test in at commission of the of- fense, injury they or a less serious or risk To the extent conflict with injury required holding Moss today, than that and its offense, 37.09, Y.A.C.C.P., in progeny Article never- are overruled.13 12. In the instant cause the lesser included of- "retried for the lesser included offense of mur- voluntary involuntary manslaugh- der," However, citing Granger. Granger fenses of and its charged jury, ter were to the albeit in defective precursors long back Moss are on rote but paragraph applying forms. Like the the law of woefully analysis. pointed short on As we have facts, paragraph applying murder to the ante, out in Moss is voluntary manslaughter apply law of failed to solely ipse based on its own dixit that Burks and though jury transferred intent. And burglary "prevent" Greene do not retrial for of a supplied statutory with the definition of "reck- building. majority, protests Thus the Moss over less” in the abstract statement of the law of involuntary manslaughter, by Presiding Judge joined by Onion two others applying that law that its decision "should be made with reason- ing, facts, charge again required reason,” simply majority but the declines to appellant "knowingly” to find caused the death ruled as it willed. Thus, every paragraph of the deceased. authorizing under Moreover, others, par- because Moss and the conviction in this cause ticularly Granger, were decided before MeWil- since, acquitted, would have to be as we have liams, supra, the Court was not called on to ante, affirmed the evidence did not establish a principles jeopardy law examine and the rule knowing killing of the deceased. Blockburger adopted v. United States since progeny Moss, McWilliams. In that sense Moss and Granger followings 13. In other inapposite. sire insufficient evidence that a homicide was com- committing robbery Given the McWilliams formulation and Brown mitted in the course of therefore, murder, Ohio, supra, may longer acquittal capital no be Court orders an but gratuitously appellant may correctly generally then states that asserted that an course, we do not know for what

Of IS THE OF APPEALS COURT GUILTY offense, any, statutory the State OF CONTEMPT? attempt appellant subsequent indict majority opinion holds that there Therefore, ruling in this cause. resolu- our nothing wrong ap- with the court of particular offense is of tion whether peals refusing failing obey order as that for we now “same” Court’s decree when first remanded this await, acquittal must at the earli- entry of court, cause of to that “for consideration est, or information the State indictment grounds of error.” Garrett v. appellant’s plea by appellant, pretrial or in bar State, (Tex.Cr.App.1982). 642 S.W.2d 779 parte corpus action. See Ex Rob- habeas appeals obey The of did not court inson, 641 S.W.2d 552 mandate; opting Court’s instead to review ground of error that was not when extant judgment appeals of The court pending was first before that case part. part The affirmed in and reversed contemptuous court. Is this not conduct? for cause remanded to the trial court express I If think so. this Court’s orders entry acquittal. of a are not to be carried out a court of then, tell, expect appeals, pray how can we ONION, P.J., in result. concurs obey citizenry court’s orders? DAVIS, McCORMICK and W.C. Notwithstanding this Court’s first order of WHITE, JJ., dissent. remand, today grants the San this Court TEAGUE, Judge, dissenting. Appeals permission Court of Antonio make a de novo INTRODUCTION cause; just been like case never Laday Court. Cf. before this This reflect this is Court’s records that (Clinton, (Tex.Cr.App.1985) S.W.2d time that this cause been the second has opinion); Turner v. J., concurring Court; on before this each time the State’s (Clinton, (Tex.Cr.App.1984) 662 S.W.2d discretionary petition for review. J., dissenting opinion.) Also see Gambill (Tex.Cr.App.1985), I WHAT WOULD HOLD members voted unani- in which this Court’s state, For reasons I will this Court rehearing mously not to consider on new again remand this to the San should present- not been ground error that had Appeals, that Antonio Court for original petition for ed in the only grounds of that consider those error decision, I light today’s sup- review. Garrett, Joyce Lee Lewis hereinafter Gambill, pose the ‍‌​​‌‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌‌​​​​​​​​‌‌‌‌​‌‌​​​​​‌​​‍defendant in timely presented appellant, ferred to as the motion file a motion or amended can now prior to its decision Garrett to that court for that court of with (Tex.App. —San ground his of error. The present new 1981), becoming Antonio final. might have the “term court” fact that the defendant. expired should not inhibit THE MAJORITY’S HOLDING Williams, parte See Ex however, majority opinion, The course, you 1986). Of (Tex.Cr.App., my part opinion, first declines take majoritari- aggressive are the assertive It deci- recommended action. reviews the regime, principles law mean rules and sion of the court of that addressed them to mean. you whatever want ground of error that had not been presented to that when the cause was THIS IN CAUSE THE INDICTMENT court, pending to which first before alleges this cause respectfully I dis- indictment compelled am action September I soon state. about sent reasons that will latter the evidence on trial acquitted of know whether who is ordered offense not the "same” offense as the will that it is be tried for some show insufficient evidence specified offense, former. lesser included for we cannot knowingly lant caused the death of an indi- claimed that the evidence was insufficient vidual, Bennett, by shooting Betty Lynn jury's verdict. In the gun. alleged grounds Bennett with a This the of- of error V.T.C.A., proscribed by fense of murder as presented, she asserted miscon- Code, 19.02(a)(1). Penal Section relating duct and trial court error

alleged jury misconduct. The court of THE THE peals, STATE’S THEORY OF CASE her however, any of did not review grounds Instead, of error. it held that theory The State’s of the case was that jury charge apply because the failed to responsible death law of transferred intent to the facts of Bennett because of her acts toward a case this rendered the fundamental- person, third Bill Rankin. defective, ly and then reversed the trial judgment court’s of conviction. The cause THE FACTS OF THE CASE was then remanded to the trial court for a The facts of the case reflect that the Garrett new trial. appellant, engaged argu- while in a heated 1981). (Tex.App. Antonio —San Bill ment with Rankin outside of the resi- home) holding (a This did not set too well with the Betty Lynn dence trailer of Ben- great peti- State of Texas as it thereafter family, nett and her fired a rifle one time. tioned this the decision of The rifle into Court review bullet the traveled the appeals. granted the court of This Court trailer home in which Bennett was then only petition, situated, Bennett, the State’s but did so striking which caused appeals the of the court of her review death. charge fundamentally the was THE THAT defective. LAW GOVERNS

TRANSFERRED INTENT V.T.C.A., Code, 6.04(b)pro- Penal Section DID THE WHAT THIS COURT TO “A person criminally respon- vides: is ... COURT OF APPEALS’ DECISION causing a result differ- sible Contrary appeals, the court of actually ence between what occurred and held that the trial court’s failure to Court intended, contemplated, what he or risked charge jury the of apply in the to the law (2) person is that: a different ... was transferred intent to the facts of the case harmed, or affected.” I injured, otherwise re- not fundamental error. It then was most facts to- believe that favorable judgment versed the of the court of nicely in this cause fit the ward verdict peals the cause to that court and remanded statutory definition of transferred intent. grounds appellant’s of “for consideration However, the law of transferred intent was Garrett of error.” specifically applied to the facts of never charge this case in the trial court’s to the however, appellant, jury. The never com- FILES A MOTION APPELLANT charge plained of such omission from the REHEARING FOR objecting by either or submit- counsel, through filed a appellant, The charge. ting requested jury, The a correct Court, rehearing in but this motion for however, given in was the abstract denied same without written of trans- statutory definition of the law or comment. V.T.C.A., fered intent. Also see Penal Code, 6.04(a). Section counsel In the motion for of the appellant filed on behalf for the DID THE COURT OF APPEALS WHAT first appellant, he asserted therein THE TIME FIRST AROUND appeal that the evidence adduced time on jury’s insufficient to sustain appeal direct to the San Antonio trial was On appellant guilty of mur- finding the Appeals, appellant presented verdict Court of error, grounds none of which der. three of THE OF APPEALS would find and hold that because

WHAT COURT remand, DID ON REMAND wording of order of Court’s appeals authority was the court of without was returned to the After the cause sufficiency to consider the issue appeals, pursuant to our order of remand, of appellant’s “for consideration in her presented that was the evidence error,” grounds contrary but said belatedly ground of error. presented order, appeals did not Court, opinion of this how- majority appellant’s grounds of error that were ever, great disagrees with both the State of pending the cause first extant when was me, alia, holds, inter not- Texas and Instead, that court chose to that court. withstanding the terms of this Court’s or- ground error that review a new remand, der of filed presented an amended brief consider the authorized to appellant, ground counsel ground In so belatedly presented of error. evidentiary insufficiency. error went opinionunfortunately holding, majority found that evi- The court fails to construe the terms this Court’s jury’s insufficient to dence was me, I of remand. To as will soon order appellant guilty of mur- verdict law, meaning ordered the trial court to enter a demonstrate case der and Garrett v. acquittal. wording of this Court’s order (Tex.App. Antonio key is as to whether the court of mand the —San 1983). However, gratuituously it stat- also authority permit the appeals had following: preclud- “The is not ed the State ground an amended of error lant file retrying appellant from on a lesser in- ed was not extant when the cause was (Citations offense of murder. omit- cluded previously that court. Because of before ted.)” (101-102.) order, I hold that wording of our would appeals authority court of was without HERE COMES THE STATE OF GREAT to decide the issue whether evidence TEXAS AGAIN jury’s to sustain verdict. sufficient unnecessary It is almost to state that However, agree, for I do different but appeals did what the court of on remand reasons, holding majority opinion’s with the great Texas; really upset the a fatal variance between that there was petition discretionary filed another for jury allegata and the court’s view, asserting jurisdiction therein that the cause, i.e., insuffi- the evidence is in this appeals the court of was limited finding jury’s verdict order of remand and that the evi- cient to sustain Court’s sufficient to sustain the convic- of mur- appellant guilty dence was of the offense Interestingly, the also was alleged tion. and what of what was der because pleased opinion of with the the court of find it had to instructed that she, too, appeals, petition filed for against returning guilty a verdict of before asserting discretionary review therein conjunction with appellant, have, in appeals court of should addi- proof. State’s holding insuf- tion to evidence was hold that light that I would In of the fact jury’s ficient to sustain the verdict authority have appeals did not the court of murder, guilty of that the her also held issue, relegate the I would to reach this reprosecuting her State was barred via the pursuing this issue any lesser included offense of murder. How- provisions Y.A.C.C.P. of Art. granted petitions. We both ever, legal consider way is a there to reach the AND In order I WITH THE STATE at this time. AGREE issue WITH THE is insuf- PARTLY AGREE claim that the appellant’s APPELLANT ficient, appellant’s treat I would application as an wording order Given the of this Court’s corpus. of habeas writ remand, post-conviction agree I State and for with the compare See and Basaldua v. 558 viction.” actually You can now see two S.W.2d 2 lions, you? can’t part The first statement part is one lion and the second THE FIRST PART OF THE MAJORITY the other lion. FILLED OPINION IS WITH MAGIC Ah, you really so enjoyed magical appeals that the court of feat, you? Well, did here comes another authority to consider the belat- one. “Where not Tex.Cr.App. inconsistent error, edly urged ground of that was not incоrporates Rule 211 Rules of Civil Proce- appeal raised on direct or in a motion for govern proceedings dure ‘to in the court of rehearing when originally the cause was ” appeals in criminal cases.’ pending appeals, before the court of I find put cape Now we empty over the majority opinion that the closely resembles cage. “Pursuant to Rule T.R.Civ.R.in great magical acts; one of the Houdini’s effect when the Ap- San Antonio Court of it, you you now see now don’t. peals decision, rendered its a brief up audience, To warm majority supplemented amended or time opinion first tells it about some well known justice requires upon such terms as general principles law, namely, appeals may prescribe court of [see power authority Court’s to review deci- 414(n), prospective now Rule T.R.Civ.P. and sions of the appeals; court of this Court’s 64(o), Rule T.R.App.R.].” again Now we power authority to remand cases to cape cage. remove the from the How appeals; courts jurisdiction of courts of many you lions do now see? One or two? appeals appeals; over direct the fact that if actually because, You should see three this Court reverses the of a court above, addition to the we learn that “A appeals and the court of did not general routine remand should not fore- grounds review all of thе of error raised on availability close applicable pro- rules of appeal, direct it will remand the cause to Thus, sufficiency cedure. of the evidence to review those properly ground was made a error error; grounds of and the fact that once appeals.” court of Here is the third lion: this Court remands a cause to a court of this Court to issue an ‘order of “[F]or appeals, jurisdiction it loses over the cause. appeals remand’ to restrict the court of Then sleight-of-hand comes the trick. jurisdiction, renewed exercise of its own any authority, Without citation of valid power authority would seem to be an majority opinion jurisdiction states: “When impermissible abridgment and unwarranted over the cause is restored remand nei- grant of constitutional of same to courts of ther scanty prior statutes nor decisions cit- Y, appeals by Article Sec. Constitution ed above dictate appeals that the court of is Texas, 4.03, implemented by Articles appellate limited in its renewed considera- 44.25, 44.24 and V.A.C.C.P.” tion of the cause to the terms of our order of remand.” COURT, THE WHICH THIS COURT OR cape And now we remove the that covers AP- SAN ANTONIO COURT OF cage. you Do see one or lions two PEALS, IS REALLY CONTEMPTU- you only cage?

when before empty saw an OUS? “Indeed, an ap- ‘order’ that the court of peals appellant’s grounds ‘consider of er- When I asked the court of whether cоnduct, superfluous, ror’ in a criminal peals guilty contemptuous case is for function, statement, according ante, by such is its ma- to Arti- see the above appeal By cle 9 on appel- jority opinion Sec. direct causes me to now ask: Court, obliged opinion, late is every majority to consider if this in a ground ‘identify appeals, of error it can and under- remand order to a court of stand,’ appeals might Ben-Schoter v. 638 S.W.2d stricted what the court of remand, (Tex.Cr.App.1982),especially this one that review on would Court might judgment contemptous conduct? guilty cause reversal of a of con- cause, I circumstances of this A THE

WE DO DISSERVICE TO Given compelled to that when this Court am hold BY COURTS OF APPEALS NOT motion for appellant’s denied the THEIR AUTHORITY CLARIFYING opinion ruling or comment such without A IS RE- TO ACT AFTER CASE precedential It no value whatsoever. MANDED FROM THIS COURT TO an endorsement certainly did not constitute AN INTERMEDIATE OF AP- COURT approval by this of the or Court PEALS insuffi- allegation that evidence was My research reflects indicates that jury, as the verdict of the cient just is the first time the issue of this liberty to appeals took the authority an court of what intermediate conclude. has to act has been after cause has remanded to that court this Court THE BEEN LAW WHAT HAS LONG presented before this Court. itself THIS STATE OF addressing intelligently this Instead of majority of this refuses What the Court issue, majority prefers instead en- is accept in this cause the well known law. gage magical tricks with the remanded legal axiоm after a cause is appeals, to the court of from Court I am I have said and what about By what following petition for dis- disposition of state, regardless the San Anto of what review, cretionary an intermediate Appeals might concluded have nio Court power authority or court has no lawful late summary denial Court’s remand the terms of this Court’s exceed rehearing, I want to appellant’s motion To an intermediate order. allow absolutely clear that what before make do is to run afoul court to otherwise today us not concern either the situa does Gambill, supra: principle expressed summarily re tion this Court has where grounds in “Belatedly present new such opinion peti or comment a fused without rights of an piecemeal inimical to fashion discretionary summarily tion for review or party and interests opposing valid denied without or comment mo procedure judicial orderly rehearing, has tion for because neither economy.” value, precedential does is before nor what grants this Court When appeals might us concern what review, appropriate court done on its motion when the have own power do authority and loses originally pending before that until and with the cause anything further court, fi its first became before that court the cause to unless we remand State, Shannon See, e.g. S.W. nal. If do something further. we to do it v. Williams (Tex.Cr.App.1985); 2d 390 authority pow- so, appeals’ court of State, (Tex.Cr.App.1985); 692 S.W.2d 100 is circum- pass er issues to thereafter State, Hill v. (Tex.Cr.App. 690 900 S.W.2d language express or limited scribed State, v. Gonzales 1985); 231 689 S.W.2d remanding In this the cause. of our order State, 650 v. (Tex.Cr.App.1985); Sheffield instance, Appeals of San Antonio Court (Tex.Cr.App.1983). Also 813 see S.W.2d it to consider expressly told that was State, Laday v. 651, (Tex. 685 653 S.W.2d declined grounds error.” It “appellant’s of J., (Clinton, concurring opin Cr.App.1985) this, opting instead to review to do State, (Tex. Turner v. 357 ion); S.W.2d extant when ground of that was not error J., dissenting (Clinton, opinion); Cr.App.1984) order of remand. entered its this Court v. brecht 681 S.W.2d 614 motion for appellant, in her did the Nor Lam (Tex.Cr.App.1984); v. (Tex.Cr. Noel of this rehearing, any clarification seek 827-83, March App., No. delivered of remand. order Court’s Lopez v. State (Tex.Cr.App., 1984). But cf. OF THIS ORDER COURT’S WAS v. Todd 28, 1984); 509-83, March No. OBVIOUSLY CLEAR? REMAND (Tex.Cr.App. v. Howeth 1983); regard, obviously appears S.W.2d 787 this it In construction a fair and reasonable language employed opinion granted in or this peti- After Court the State’s higher decision remanding court time, tion for first court, cause to the lower the issues that longer of appeals the court jurisdic- no remand, are limited on then the court lower cause; tion over the jurisdiction over the issues, should only consider those and no solely cause was then vested in this Court. others, otherwise, sponte sua or it and mat However, once this Court’s decision re- ters not that the lower court doubt the manding thе cause to that court became order, propriety higher of the court’s nor final, jurisdiction over the cause was auto- might that it opinion, differ with its deci matically appeals vested in the court sion, long or conclusions. This has been court, only but no extent of other today the law of this at least until the terms our order remand. this when this first came into contact instance, the appeals court of erred in ex- meaning with the of one of remand its ceeding the terms our remand order. Estell, Cole orders. See 6 Tex. 175 I that this believe Court’s remand order Price Gulf (Tex.Sup.Ct.1887). Also see sufficiently directed the San Antonio Court Co., Atlantic Ins. S.W.2d Life Appeals grounds only consider (Texarkana Civ.App. 1981), (No histo writ — error were that extant when the cause was ry); Kelley Page, Co. et al. Const. court, originally pending in I that and have (Waco (No Civ.App. 1954) S.W.2d 689 writ — exception might found no law that Drilling Texon Co. et al. v. El history)); have warranted the al., et (San Antonio liff terms of exceed the our remand order. If Appeals 1948) (No Court of Civil histo writ phrase “for consideration ry). grounds of error” does limit itself First State Bank of Interestingly, grounds of those error that were extant Grebe, (San Bishop v. pending cause when the the court of Appeals Antonio Civil ref. Court of I appeals, majority then believe the should w.o.m.), predecessor Antonio San get magic explain why out its wand and Appeals following: Court of stated the this is not so. “[EJvery revers- оrder of remanding a cause ... carries with Therefore, instance, I would hold instruction, it the necessary whether ex- was not autho- not, pressed proceedings or all further appellant’s belatedly rized to consider in the case ... must be ‘consistent with the urged contention that the evidence was in- opinion’ reversing court; quali- sufficient, and, being more without understood, implied by fication is necessi- I present, would reverse the that, ty, usually, nothing so at least it adds appeals, the court and remand write it into the result to those to that court it to consider include it in the mandate.” grounds appellant had of error instance, yet, prior

And Antonio timely presented San to that court could Appeals Court of reasoned that opinion and decision dated December belatedly urged ground consider of er- provisions ror because of the of Art.

V.A.C.C.P., see Tex.Cr. also Rule I TREAT THE APPELLANT’S WOULD App.R., expressly provides after AS AN POST- P.D.R. ORIGINAL the the record is filed court APPLICATION FOR CONVICTION parties supplemental may file such briefs AND HOLD HABEAS CORPUS is they may as desire the case sub- before THE IS INSUFFI- THAT EVIDENCE But, as I tried to mitted to the court. have TO SUSTAIN THE VERDICT CIENT point out, ground not the of error was THE JURY OF presented court the to that case before court; Although agree I do not with all of the submitted to it was submitted gives, majority ‍‌​​‌‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌‌​​​​​​​​‌‌‌‌​‌‌​​​​​‌​​‍opinion or what long lost reasons the to that court that court had after stated, why the evi- jurisdiction over the case. the court I, “dicta,” insufficient, nevertheless, agree, meaning only give is to the dence real word developed dealing poorly based factual in this instance we are because record, retrying prohibiting that the evidence is insufficient the State from to with jury finding the offense of mur- sustain verdict the the the lesser appellant guilty of murder. der. has Sufficiency of the evidence now risen CONCLUSIONS dimension

to constitutional be at- reasons, respectfully I dis- For the above by way post-conviction collateral tacked upholding attack, to guilty. the sent this Court plea where was not See sufficiency appeals decision to review the Virginia, Jackson U.S. S.Ct. However, I (1979). ground for reasons parte of error. 61 L.Ed.2d 560 Cf. Ex stated, Williams, I have would construe 703 S.W.2d 674 To rele- as lant’s gate challenging to the suffi- original post-conviction application for 11.07, an ciency by way of Art. the evidence corpus, V.A.C.C.P., writ of habeas would hold that not cause the record to would jury’s is insufficient to sustain the factually, become better and would certain- verdict, grant Thus, then the writ and judicial economy. and would ly promote but remand the cause to the trial court with opinion, I contrary majority to the would acquit- challenge instructions enter sufficiency as consider as to the offense of murder. tal though presented it had been this Court of Art. pursuant provisions to the Further, I saith not at this time. supra. I I my why need not set out reasons STATE’S MOTION OPINION ON agree majority opinion's with the bottom FOR REHEARING line is that the evidence insufficient CAMPBELL, Judge. jury, to sustain the verdict of the because granted mo- argument on the State’s We only elongate I opinion. that would in order to address two tion simply will refer the reader what was grounds: against alleged appellant, majority opinionerred in revers jury, developed poorly and the facts ing conviction on the appellant’s murder by prosecution, they are set out in ground legally insuffi there was opinion by majority and the support the same be cient evidence appeals. cause: (a) intent law of transferred WHAT SHOULD WHEN THIS OCCUR jury; effectively submitted THE CAUSE ARRIVES BACK IN (b) intent could TRIAL the law of transferred COURT? verdict; jury’s used majority opinion I find that unneces spends explaining why sarily much time (c) killing of deceased knowing (Tex.Cr.App. Moss only theory of murder was not the 1978), expressly progeny and its should be charge to submitted in the trial court’s Moss, Although I agree that overruled. jury. expressly progeny, and its should be overruled, acquitted is of a a defendant I do not that this believe Where offense, of a either verdict opportune to discuss that issue and time appellate of an Also see the concur make that decision. legally the evidence insufficient ring opinion that I filed in Ibanez offense, noth convictionof that Be sustain a Jeopardy in the Double Clause of prescient, I am not I am unable to second tri what, anything, Constitution forbids a might happen Federal state defendant for a lesser included in the trial court. al the the cause arrives back expressed or Therefore, there is no this unknown is to offense where to address implied finding that the is insuf- that her was reasonably aware conduct ficient to a conviction the to cause certain the actual result rather merely offense. lesser included than the desired result. V.T.C.A. Code, 6.03(b). Penal Sec. theory We hold of transferred the quite seem possible It would that a de- adequately jury intent was not before the might intentionally object fendant fail to opinion, prior extent that our jury charge proper to omite a which a jeopardy, that it discussed double was ad- application of in transferred intent order visory. require greater to the meet State to this I burden. rehearing, In its motion for the I, supra at Garrett 781. argues by case is controlled inapplicability argu- of the State’s (Tex.Cr. Romo S.W.2d 298 respect I ment with to does not Garrett App.1978) Garrett weight regard its in vitiate Romo. I). (Garrett (Tex.Cr.App.1982) In Romo, this Court refused label an ab- Romo, rejected challenge an ab we instruction stract which would have in- parties, stract on the instruction law of proof the creased State’s burden as fun- application without an of that law abstract error. so on the theory damental We did case, to the facts of the was fundamental that a defendant could elect to waive his error. instruction the law Because an on right parties applied have the law of parties the allows State to convict on facts, forcing the thus the State into meet- charged less evidence than defendant is ing proof. more onerous burden principal, as a held we that a defendant sufficiency When this examined might pursue right choose his to an support the of the evidence to defendant’s application By of the law to the facts. Romo, measured the conviction we evi- eschewing application, ap parties culpabili- dence in terms of the defendant’s pellant in Romo would force the State to ty party. as a This treatment suffi- theory principal culpa convict him on a “election” ciency point renders the ratio- that, bility. The brief notes after State’s legal nale mere fiction. Garrett I does reaching Romo, supra, this result we adopt implicit sufficiency “test” judged sufficiency later of the evidence patently in Romo. It is unfair and used “party” culpability. terms of The State charging error irrational to find the harm- jury utilizes to infer this result that the proof it burden of less raises the because was authorized to convict under the law of ignore and then that raised burden when parties. particularly urges this The State measuring sufficiency of the evidence. argument on by highlighting our reliance II, A different concern raised Garrett I. Romo Garrett although it is not mentioned the State’s tak- While the State’s observation is well rehearing, possible effect motion for is its en, it conclu- fails because relies on the inspection subsequent on cases. A close charge sion that the law of abstract product II reveals that it is Garrett put transferred was sufficient intent circumstances, set of illustrat- an unusual theory jury. curso- before Even a post-Ai- pre- tension between I, ry reading belies Garrett analysis, created a re- which have manza1 point: something appears it is not. sult that to be A blush, on transferred intent is require At first case seems nature to the State detri- sufficiency favorable that a measurement of provi- mental to the defendant. With the a sole considera- the evidence be limited to 6.04(b)(2) application from the paragraph sions of Sec. omitted tion charge. misapplication charge, prosecution presented with This would be proving “know- of rule enunciated in Boozer v. burden Ortega (Tex.Cr.App.1986); ing” act in the defendant 1985). (Tex.Cr.App. Almanza

803 State, judicial (Tex.Cr.App.1983); vests v. The Texas Constitution Court of v. (Tex. power criminal cases in the Benson 661 708 over S.W.2d appeals. Boozer, Appeals and the courts Ortega, and Ben Criminal Cr.App.1983). Const, V, 1 “‘Judicial & 5. Tex. art. sufficiency §§ of the be son hold that power power’ is of a court decide charge, against measured carry it into pronounce a charge.2 entire interpret to mean the we parties persons and who effect between before it for a decision.” Mor bring a cаse II Corbin, 553, 558, row v. 122 62 S.W.2d Tex. holding Appeals, after The Court (1933). 641, power does not 644 Judicial sup the evidence was insufficient advisory power opin include the to issue offense port appellant’s conviction 646; Id. at 562, also 62 S.W.2d at see ions. murder, following included the state Newark, v. Firemen’s Ins. Co. N.J. opinion: pre Burch, 331, “The State is not (Tex.1968); ment 333 442 S.W.2d a lesser Company retrying from United Services Insurance cluded Life v. 855, of murder.” Garrett (Tex. Delaney, v. included offense 396 S.W.2d 861 97, (Tex.App.— 1965).3 advisory opinion 101-02 results when An II, 1983). attempts to an issue that does Garrett appel In decide San Antonio controversy capa Appeals in not arise from an actual argued that the Court of lant v. See Fikes adjudication. ble of final any correctly a trial on lesser authorized Ports, (Tex.Civ.App. 806 responded to that included offenses. We —Fort Rice, n.r.e.). 1963, writ refused Cf. Worth argument with an extensive discussion 404, 246, 92 at 30 L.Ed.2d 404 U.S. at S.Ct. concerning con jeopardy, law double court, (“To cognizable in a federal at 415 be States, Blockburger v. United cluding concrete, touch a suit ‘must be definite and 299, 180, 52 76 L.Ed. 306 284 U.S. S.Ct. having legal parties relations (1932) de proper contains the standard for legal It must be interests.... adverse ciding a defendant be tried whether admitting controversy real and substantial fol particular for a included offense lesser through a decree of specific relief lowing acquittal greater offense. on the distinguished character, as conclusive the Blockbur- However, apply we did not advising would what law ger we to the instant case test because ” (cita state of facts.’ hypothetical Id. at premature. application found its omitted)). tion reconsideration, Upon we find that 795. case, Appeals jeopardy law in the instant the Court our discussion of double try appel- could petition for response appellant’s discre determined included offenses unnecessary. lesser tionary lant opinion, original opinion nonetheless inevi Arguably, II that conclusion in Garrett our law Garrett tably the doctrine of “the what was observed.” constrained follows from (Tex. ap S.W.2d 700 II, case.” See Ware Cr.App.1987); supra of the case doctrine at 788. Law 576 S.W.2d 825 I, Jordan explicit implicit holdings as plies well to held that In Garrett we Buggies E.g., Corp. & v. WilcoMarsh ones. Kori to increase the the infirm instruction acted (Fed.Cir.1985); Draglines, 761 F.2d proof burden of above what would State’s Services, 634 & Human Sec. Health Davis v. have been had the transferred intent instruction (E.D.Mich.1986); Span-Deck, F.Supp. I, supra, 781. Now been effective. Garrett (D.Minn. Inc., F.Supp. v. Fabcon Inc. final, ques opinion in I is that our Garrett Moore, 0.404[1], 1983); Practice ¶ J. Federal IB theory prove of what the State must use to tion n. Ware, guilt relitigated. may not be Jordan, I, supra; supra. In Garrett we held that power judicial un- defining breadth of 3. In intent served the abstract on transferred Const, constitution, art. U.S. see the federal der proof. A mea increase the State’s burden III, Supreme Court & the United States §§ 1 sufficiency of must be the evidence sure of Car- North the same conclusion. has reached against that standard. Rice, 92 S.Ct. 404 U.S. olina II, As Garrett I did not ex noted Garrett (1971) ("Early history, this in its L.Ed.2d 413 say pressly the State could convict power no issue adviso- that it had Court held theory appellant on a of transferred intent. opinions_"). ry "Yet while it is true that was appellant despite acquittal murder s However, point offense of murder. at that IBANEZ, Appellant, Efran Castro Appeals

the Court of did not know if the v. attempt retry appellant would for Texas, Appellee. The STATE of Moreover, some included lesser offense. without an information or indictment nam- No. 69330. offense, particular Ap- Court Texas, Appeals Criminal peals rule any specificity could not with En Banc. sum, certainty. Appeals’ the Court of 11, June 1986. did resolve an actual controver- sy capable adjudication. of final It antici- Rehearing May Denied

pated controversy presumed hypo- thetical facts. necessary

It was not for this Court Appeals’

address the merits of the Court of

holding regarding prosecution the future

appellant lesser included offenses.4 Appeals

The Court power had no

decide that issue because the issue dou jeopardy

ble could arise if subsequently charged

were with some less See, parte

er Ex e.g., included offense.

Robinson, (Tex.Cr.App. S.W.2d

1982). Therefore, we find that the Court ‍‌​​‌‌​‌​​​‌‌‌‌‌​‌‌‌‌​‌‌‌‌​​​​​​​​‌‌‌‌​‌‌​​​​​‌​​‍Appeals’ holding advisory. We ex

press no at this time as to whether be tried for lesser could some

included offense. motion State’s de-

nied. WHITE, JJ.,

TEAGUE and concur

result.

ONION, P.J., and DAVIS and JJ.,

McCORMICK, dissent.

DUNCAN, J., participating. (Tex.Cr.App.1980); 4. We this Court has same 605 S.W.2d note that made the Harris, (Tex.Cr. past addressing parte 600 S.W.2d mistake in cases double Ex Rogers prior S.W.2d jeopardy implications acquittal App.1980); of an (Tex.Cr.App.1979); capable controversy Moss v. the existence of actual See, (opinion e.g., (Tex.Cr.App.1978) adjudication. Taylor rehear of final (Tex.Cr.App.1982); Granger ing).

Case Details

Case Name: Garrett v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 20, 1988

Citation: 749 S.W.2d 784

Docket Number: 642-83

Court Abbreviation: Tex. Crim. App.