Lead Opinion
OPINION
delivered the opinion of the Court, in
The issue is whether Antonio Manrique has been punished twice for the same of-
fense. We hold as a matter of state law that he has not.
The grand jury presented two indictments against Manrique. Each indictment had one count comprising two paragraphs.
The jury heard evidence that the appellant and David Samudio showed up at a party with a rifle. Samudio said that they were going to “light up” (that is, shoot up) the house of a member of a rival gang, and they left the party. They returned tired and out of breath. The appellant told someone that he and Samudio had shot at a yellow house on a certain street nearby, that he had started the shooting, and that after the gun jammed Samudio had taken the gun and shot some more. The yellow house was riddled by bullets. It was occupied by several members of the Avilez family, including Edward and his wife Donnie, who both were shot. At the scenе police recovered 26 shell casings which matched a rifle that was found behind a couch in the appellant’s home.
The court’s charge instructed the jury to find the appellant guilty on the first indictment if they found he had committed attempted murder on a person or persons unknown to the grand jury or Edward Avilez, and to find the appellant guilty on
The jury later assessed punishments of 20 years’ confinement on each indictment. Two judgments were entered, with sentences to be served concurrently as required by law.
Manrique appealed on two points: that the evidence was insufficient to prove intent to murder, and that he was twice punished for the same offense contrary to the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States. The Court of Appeals found the evidence sufficient, and concluded that “the two convictions of appellant for identical counts of attempted murder violate the Double Jeopardy Clause. They constitute multiple punishments for the same offense.” Manrique v. State,
The Court of Appeals decided this case on two assumptions: that the appellant was convicted under Paragraph A of each indictment (that is, the paragraphs that alleged that the appellant had attempted to murder a person or persons unknown to the grand jurors), and that those paragraphs alleged the same offense. See
The assumption that the appellant was convicted under Paragraph A of each indictment is contrary to the law and the evidence. The law is that, when a general verdict is returned and the evidence is sufficient to support a finding under any of the paragraphs submitted, the verdict will be applied to the paragraph finding support in the facts. See Aguirre v. State,
Although the Court of Appeals reasoning was not in accord with Malik, it was correct in overruling the appellant’s point of error on sufficiency of evidence. Therefore we affirm the Court of Appeals decision to affirm the first judgment of conviction.
The Court of Appeals’ other assumption was that two convictions for “shooting at a person or persons unknown” must necessarily be for the same offense. Why this should be so was not explained, and we cannot agree that it is so on these facts. The appellant was trying to “light up” a house that contained more than four people, and he and his companion fired at least 26 shots. It seems reasonable to
The appellant’s claim that he has been convicted twice for the same offense fails at the outset, and it is unnecessary to decide whether the Double Jeopardy Clause permits multiple punishments for a single offense.
The dеcision of the Court of Appeals to reverse the second judgment of conviction is reversed, and the judgment of the district court is affirmed.
In No. 0589-97 (Court of Appeals No. 04-95-00943, district court no. 94-CR-5703-A), the judgments are affirmed. In No. 0834-97 (Court of Appeals No. 04-95-00944-CR, district court no. 94 — CR-5702-A), the judgment of the Court of Appeals is reversed and the judgment of the district court is affirmed.
McCORMICK, P.J., filed a concurring opinion in which MANSFIELD, KELLER and KEASLER, JJ., join.
I join the Court’s opinion. I write separately to set out my reasons for doing so. This is, among other things, a “multiple punishments” double jeopardy case in which the San Antonio Court of Appeals decided appellant was punished twice for the “same offense” in a singlе proceeding. Manrique v. State,
If the Court of Appeals correctly decided the sufficiency and the double jeopardy issues, then appellant is entitled to walk free based on the claim set out in his discretionary review petition. I agree with the holding in the Court’s opinion that the Court of Appeals incorrectly decided the sufficiency issue. I also agree with the holding in the Court’s opinion that, as a matter of state law, appellant has not been punished twice for the “same offense.” The double jeopardy issue turns on an application of state law as do most double jeopardy questions in cases like this. See Vineyard v. State,
At approximately 4:00 a.m. appellant and a co-actor fired at least 26 rounds from an AK-47 assault rifle into a house which was occupied by various persons. The surviving victims, Edward and Donnie, were the only persons to suffer gunshot wounds. There was some evidence appellant intended to shoot up the house because he believed a rival gang member lived there. Neither Edward nor Donnie were this rival gang member.
Two indictments were returned against appellant with еach indictment charging him with the offense of attempted murder. Each indictment alleged in two separate paragraphs that appellant intentionally and knowingly attempted to murder one or the other of the named victims or person and persons unknown to the grand jury.
The cases were tried in a single proceeding. In one case the jury was charged to convict if it found appellant intentionally or knowingly attempted to murder Edward or person or persons unknown to the grand jury. In the other case the jury was charged to convict if it found appellant intentionally or knowingly attempted to murder Donnie or person or persons unknown to the grand jury. The jury returned a general guilty verdict in еach case. The jury assessed punishment at twenty years confinement in each case with the trial court ordering the sentences to run concurrently.
Apparently relying on the Blockburger test
We granted ground one of appellant’s petition for discretionary review and grounds one through three of the State Prosecuting Attorney’s petition fоr discretionary review. Ground one of appellant’s petition for discretionary review claims the Court of Appeals failed to address appellant’s “essential sufficiency argument,” namely the victims were known to the grand jury since the indictments named them. See Hicks v. State,
Ground one of the State Prosecuting Attorney’s petition for discretionary review claims identically worded indictments standing alone do not demonstrate a double jeopardy violation. Ground two claims the appellate principle of evidentiary sufficiency review, that a jury is presumed to have rendered a verdict upon a theоry for which there is legally sufficient evidence,
I. STATE PROSECUTING ATTORNEY’S PETITION FOR DISCRETIONARY REVIEW
A. DOUBLE JEOPARDY
Concerning the double jeopardy question, the State Prosecuting Attorney claims:
“[T]he case at bar is one involving ‘multiple punishments.’ Therefore, the test to bе employed initially to determine any potential violation of the Double Jeopardy Clause is the Blockburger analysis. If the two offenses meet that test, they are not considered the ‘same offense’ and multiple punishments are authorized. However, if the two offenses do not meet that test, further inquiry should be made in order to determine whether there are indications of legislative intent to authorize multiple punishments. And, only if such an inquiry results in a negative finding will there be a double jeopardy bar to such multiple punishments.”
I understand United States Supreme Court precedent to support the approach advocated by the State Prosecuting Attorney in cases involving “multiple punishments” in a single proceeding when a single act (or the same conduct) violates two separate statutes that define “in some abstract sense” the “same offense” under Blockburger. See Missouri v. Hunter,
I understand the Blockburger test applies only when “the same act or transaction constitutes a violation of two distinct statutory provisions.” Blockburger,
This case is not a “multiple punishments” or a “successive prosecution” case for a violation of two distinct statutory
Having decided what this case is not, it becomes necessary to decide what it is. This case involves “multiple punishments” in a single proceeding for multiple violations of the same statute by different acts with different victims. Each round fired from the AK-47 assault rifle was a different and discrete act. See Blockburger,
Blockburger, which was in part a case involving “multiple punishments” in a single proceeding for multiple violations of the same statute by different acts, also states the double jeopardy test for “sameness” in these circumstances:
“The test is whеther the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. * ⅝ * If the latter, there can be but one penalty.” Blockburger,52 S.Ct. at 181 .
According to Blockburger, this test hinges on the legislative intent of the statute at issue.
“In the present case, the first transaction, resulting in a sale, had come to an end. The next sale was not the result of the original impulse, but of a fresh one — that is to say, of a new bargain. The question is controlled, not by (citation omitted), but by such cases as that of (citation omitted). There the accused was convicted under several counts of a willful tearing, etc., of mail bags with intent to rob. The court (citations omitted) stated the question to be ‘whether one who, in the same transaction, tears or cuts successively mail bags of the United States used in conveyance of the mails, with intent to rob or steal any such mail, is guilty of a single offense, or of additional offenses because of each successive cutting with the criminal intent charged.’ Answering this question, the court, after quoting the statute, (citation omitted), said:
‘These words plainly indicate that it was the intention of the lawmakers to pro- • tect each and every mail bag from felonious injury and mutilation. Whenever any one mail bag is thus torn, cut, or injured, the offense is complete. Although the transaction of cutting the mail bags was in a sense continuous, the complete statutory offense was committed every time a mail bag was cut in the manner described, with the intent charged. The offense as to each separate bag was complete when that bag was cut, irrespective of any attack upon, or mutilation of, any other bag.’ ” Blockburger,52 S.Ct. at 181-82 . (Emphasis Supplied).
Based on this test, it is not difficult to conclude that a separate offense was committed with each round fired from the AK-47 assault rifle and that the “intention of the lawmakers” also was to protect each victim “from felonious injury and mutilation.” See Blockburger,
V.T.C.A., Penal Code, Section 6.04(b)(2), provides:
“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 a different person or property was injured, harmed, or otherwise affected.”
This statutory principle of “transferred intent” is raised when there is evidence a defendant with the required culpable mental state intends to injure or harm a specific person but injures or harms a different person or both. See, e.g., Norris v. State,
The State Prosecuting Attorney argues that even if a transferred intent theory is the only theory for which there is sufficient evidence to support appellant’s convictions for the intentional or knowing attempted murders of the named victims, the evidence is nevertheless legally sufficient to support these convictions under Malik. The State Prosecuting Attorney also argues a trаnsferred intent theory is not the only theory for which there is sufficient evidence to support these convictions making it unnecessary to apply Ma-lik to this case.
Appellant contends the evidence is legally insufficient to support his convictions for the intentional or knowing attempted murders of the named victims because there is no evidence appellant “knew the house was occupied.” He claims all the evidence shows is that he intended to “shoot up a house.” Appellant also contends that retroactively applying Malik to his case would cause an “unjust result.”
The evidence is sufficient to support a finding that appellant at least acted knowingly. See Y.T.C.A., Penal Code, Section 6.03(b) (definition of culpable mental state of “knowingly”); Kitchens,
In addition, a transferred intent theory is not the only theory for which there is sufficient evidence to support appellant’s convictions for the knowing attempted murders of the named victims. The evidence supports a finding or thеory that appellant knowingly attempted to injure or harm anyone in the house.
It makes no difference to this sufficiency analysis whether a transferred intent theory may also have been raised by evidence that appellant’s intended victim may have been a rival gang member and the named victims may have been appellant’s unintended victims. See Norris,
And, in any event appellant’s argument that Malik should not apply to his case is unpersuasive. Malik overruled the Ben-sonr-Boozer cases in part because these cases permitted the greatest form of relief — an acquittal — to factually guilty and fairly tried criminal defendants simply because they received a windfall in the jury instructions. See Malik,
With these comments I join the Court’s opinion.
Notes
. See Tex.Code Crim. Pro. art. 21.24(b): "A count may contain as many sеparate paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense.”
. See Tex.Code Crim. Pro. art. 21.07: "When the name of [a] person is unknown to the grand jury, that fact shall be stated .... ”
. See Tex. Penal Code § 3.03(a), which requires that sentences run concurrently when the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action.
. See Boozer v. State,
. Blockburger v. United States,
. This is the argument appellant made in his direct appeal, in his petition for discretionary review and in his brief on the merits of his petition for discretionary review (Appellant’s P.D.R. in No. 834-97 at page 8; Appellant's Brief in No. 834-97 at page 6). However, in his reply brief to the State Prosecuting Attorney's petition for discretionary review, appellant claims for the first time that the "person or persons unknown to the grand jury” allegations in the indictments refer to the rival gang member (Appellant’s Reply Brief in No. 589-97 at page 9). Appellant also claims this was the prosecution’s theory of the case.
The record reference appellant provides does not support this assertion (S.F., VII at 66). The prosecution’s theory was that appellant intended to "light up [a rival gang member's] house,” not that the "person or persons unknown to the grand jury” was the rival gang member.
.See Kitchens v. State,
. The analytical approach taken in Vineyard would yield the same result. Assuming this case is like Vineyard and involves multiple violations of the same statute by appellant’s "single " act of firing 26 shots from an AK-47 assault rifle into a house full of people, each victim in this case is an "allowable unit of prosecution.” Cf. Vineyard,
. The State Prosecuting Attorney also argues the evidence is sufficient to support a finding that appellant acted "intentionally” because it was his conscious objective to kill anyone in the house.
Concurrence Opinion
concurring.
I concur in the result. I write separately to address three issues.
First, the majority states, “[a]s we have subsequently held, the evidence is not to be held insufficient because of a defect in the court’s charge. Malik v. State,
Second, the majority errs to assume that the State needed the theory of transferred intent in order to obtain convictions based on the indictment counts which named the victims. Also making this assumption, the Court of Appeals mixed evidentiary sufficiency review and double jeopardy analysis — two processes of appellate review with entirely separate purposes.
Addressing Appellant’s claim that “there was no evidence of intent to murder the complainants specified,” the Court of Appeals noted:
Appellant points out that the doctrine of transferred intent (Tex. Penal Code Ann. § 6.04(b)) was given to the jury in the abstract portion of the court’s charge but was not applied to the facts in the application paragraph. Thus he argues that the theory of transferred intent is not avаilable to the state to support the conviction. With this premise the state concedes [sic], and we agree. See Garrett v. State,749 S.W.2d 784 , 788-89 (Tex.Crim.App.1986). Therefore, we will only consider the sufficiency of the evidence as it relates to the allegation of attempted murder of a person or persons unknown to the grand jury in Paragraph A of each indictment.
Murder is defined, in relеvant part, by section 19.02(b)(1) and (2) of the Texas Penal Code: “A person commits an offense if he (1) intentionally or knowingly causes the death of an individual, or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual!)]” Criminal attempt is defined by section 15.01(a) of the Penal Code: “A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” One type of attempted murder then is when a person knows that his conduct may cause serious bodily injury or death, does an act clearly dangеrous to human life, and yet that act does not actually cause death.
The Penal Code defines the culpable mental states of “intentionally” and “knowingly”:
(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonаbly certain to cause the result.
Tex. Penal Code § 6.03(a), (b). Intent and knowledge are fact questions for the jury, and are almost always proven through evidence of the circumstances surrounding the crime. Robles v. State,
A jury may infer intent from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime and from the nature of wounds inflicted on the victims. Hernandez v. State,
In addition, as the State argued in its brief to this Court:
Initially, it must be remembered that when an individual is identified as avictim in an indictment charging a crime such as murder or assault, the identity of such victim does not become a part of the defendant’s mens rea. In other words, the defendant does not have to know the identity of the victim, nor [sic] does the State have to prove that the defendant knew such identity. Even though the identity of the victim in such a case becomes an element of proof for the State, and the failure to so prove will result in an acquittal, the identity of the victim does not become an element of the offense to which the culpable mental state of the defendant attaches.
For example, if a person picks out a particular individual named Joe Smith from a crowd of strangers, whose identity he does not know, and he then shoots that individual, the indictment charging the dеfendant with murder or some other assaultive offense will specifically name Joe Smith as the. person shot. However, that does not mean that, in order to obtain a conviction, the State will have to prove that the defendant knew this identity. Instead, such an allegation effectively means that the defendant intentionally or knowingly assaulted a particular individual, who happened to be Joe Smith.
Thus, the fact that the indictments in the case at bar specifically named the victims of the attempted murders does not mean that the State had to prove that the appellant knew the identity of his victims at the time of the offense.
I agree. The identity of the victim is not an element of the crime to which the culpable mental stаte attaches.
The record shows Appellant fired multiple shots from an AK-47 into a house located in a residential area at 4:00 a.m. There is evidence that Appellant saw at least one person in the house while he was firing. In addition, there is evidence that Appellant knew the house was occupied as he was firing. Based on this circumstantial evidence the jury could reasonably infer that Appellant had either intent to kill the persons in the house or knowledge that his actions might reasonably lead to the death of persons in the house. “Edward Avilez” and “Donnie Avilez” are the names of the persons in the house who were hit by Appellant’s gunfire. The State therefore presentеd evidence from which a jury could logically conclude that Appellant either had intent to kill Edward and Donnie Avilez, or knew that his actions might reasonably lead to the death of Edward and Donnie Avilez. The fact that Appellant did not know the identity of the persons at whom he was shooting is irrelevant. See Salisbury v. State,
While the evidence would support convictions based on the theory of transferred intent, that theory was by no means necessary. The evidence in some cases will support a conviction regardless of whether the State decides to pursue a transferred intent theory. See also Norris v. State,
Third, our recent decision in Ex parte Goodbread,
With these comments, I concur in the result.
. When in a case the question arises as to whether the accused intended to kill, the means used by him may be looked to. If a deadly weapon is used in a deadly manner, the inference is almost conclusive that he intended to kill; on the other hand, if the weapon wаs not a dangerous one, or was not used in a deadly manner, the evidence must be established by other facts.
Hatton v. State,
. In my concurring opinion in Goodbread, I raised concerns about the new measure of evidentiary sufficiency: "The problem is, how can we ascertain that the separately alleged offenses are distinct from one another, given that the face of the subsequent indictments would support the same convictions that would also have been supported under the initial indictment.” In the present case, this problem does not exist because each of the two alleged offenses has a different victim.