*1 Wayne NORRIS, Appellant, Michael Texas, Appellee.
The STATE of 69,856. No. Texas, Appeals Court of Criminal En Banc. March 1995. Rehearing May 17, Denied
OPINION
McCORMICK, Presiding Judge. *3 appellant A convicted mur- V.T.C.A., Code, der under Penal Section 19.03(a)(6)(A).1 The trial court sentenced him jury affirmatively to death after the special Appellant pres- answered the issues. points ents nineteen of error. affirm. Appellant challenges sufficiency conviction; support of the evidence to therefore, we set out the relevant evidence guilt-innocence stage. from the The evi Georgia dence shows Rollins and romantically Appellant were involved. some babysat Georgia’s two-year times son old (the offense, baby). evening On the Georgia babysit would not allow baby church, Georgia while attended as they previously agreed. Georgia had took baby Appellant ap to church with her. peared during at the the services to church get baby, type and had some of confron Georgia during security tation with which a guard Appellant had to intervene. became angry, baby, went home without the and took nap. Appellant lived a short distance from apartment. the mother’s Appellant attempted claimed he to contact Georgia by telephone night later that but she hang up phone would each time he called. Appellant high-powered took a rifle deer Georgia’s apartment, which she shared with family other members of her who were home time, baby Georgia at the and shot the (the mother) range at close inside the moth- Schaffer, Odom, Jr., Randy Wendell A. baby instantly, er’s bedroom. The was killed Houston, Cynthia Henley, appeal only, night died later that at a mother appellant. hospital. local Holmes, Jr., Atty., B. John Dist. & Timo- Taft, Mantooth, members, thy family G. Ira Jones & Debbie The mother’s none of Huttash, Houston, entirety Attys., position Asst. Dist. Robert whom in a to see the were Austin, Atty., occurring State’s for the State. of the events inside the mother’s person "A commits an offense if he commits this subsection was renumbered V.T.C.A., Code, 19.03(a)(7)(A). 19.02(a)(1) Section Penal murder defined Section under identical; provisions are we refer to The two Section this code and the murders more than 19.03(a)(6)(A) opinion in this since that person during one the same criminal transac- applicable provision. Section tion.” 19.03(a)(6)(A) states: spent three rifle he found bedroom, testimony testified provided Gafford one mother’s bedroom and casings the mother’s bedroom win- inside the appeared outside dow, glass spent and fired a shot into her Another broke the window. outside her bedroom talking to some- The mother was rifle. Gaf- casing bedroom. found telephone appellant broke one on the five total wounds he observed ford testified glass in her bedroom window. photo- baby. crime-scene on the Several to the into the bedroom and said climbed multiple on the graphs, showing wounds mother, Georgia, “I but told hate to do this baby, admitted into evidence.2 were you. you you mess me over. told couldn’t show- presented other evidence The State you you He then 1 told couldn’t leave me.” entry four initial ing suffered direction. fired several shots the mother’s chest, head, to the one wounds: two room, doorknob on He left the turned the *4 thigh, was right leg or which and one to the apartment, door in the and another bedroom to the head gunshot The wounds nonfatal. then returned to the mother’s bedroom. He were fatal. The mother suffered and chest the mother he hated to see her suffer told “irregular gunshot to the head three wounds” couple in her and fired a of more shots face, fragment wounds to her and chest and family tes- direction. The mother’s members chest, neck, going left arm into the chest. and they they heard five shots but tified about gunshot wound to the chest sure. The mother’s sons saw be gunshot going arm into the wound to left appellant leave the mother’s bedroom with of the wounds the chest were fatal. Most them, get “Y’all the rifle. said fragments were from of bul- mother suffered my way. go I out of Let me out. done come baby.3 that first hit the lets go and do what I come to do. let me Just out.” also showed that The State’s evidence home, Appellant returned where he lived out- appellant fired the first shot from mother, with his told her he had killed the the mother’s bedroom the mother was side baby, sorry. mother and the and he was kneeling her sitting or on the floor next to Appellant’s mother testified bed, lying on the bed. The and the child sobbing. Appellant pastor also called and baby right leg or first shot hit the police police turn himself in. The thigh, picked up the nonmor- and the mother appellant shortly arrested thereafter at his tally baby him to her wounded and held without home incident and seized the rifle. crying, “my baby, my baby.” Appel- breast night, appellant Later that confessed to the bedroom and lant climbed into the mother’s police baby, he had killed the mother and the fired another shot. This shot entered the sorry. and he was frag- baby’s fragmented; and forehead baby’s police quickly ments came out of the back of the arrived at the mother’s hit mother in apartment places and secured the scene. head in three Officer “irregular injuries, you “Q. Now other than the head did 3. The medical examiner testified injury probably see more indications of bullet gunshot hit wound” means the bullet splatter body blood to the that would indicate a hitting something mother. else before injury bullet other than the rather massive describing: ‘ir- word I used in here "A. The ones to the head? Now, say regular gunshot wound.' when I Yes, "A. “Q. sir. There were four others. wound,’ 'irregular gunshot it means that the they? were Where been touched. missile was not one that has not leg. I believe "A. There would one 'irregular.' a wound I called It can be approximately inches—extended This it was approximately four knee, foreign fragment I four inches above the or the of the bullet. bullet away leg; from the part which the flesh was tom say a bullet or can’t if it's whole armpit. say bullet, I 'under the one under the And say. I because—I can't But know certain, armpit’; exactly just by I’m not recol- shape. perfect this area is not in bullet that hit lection, was, it the arm- which arm but under something else first and then It could be—hit pit very large there was a wound and then one why ‘irregular I it hit that area. That’s call ” (sic) large wound to the center chest. gunshot wound.’ are the ones that I recall at this mo- “Those were ment. I know that —I know there five wounds, total.” neck, sir, Yes, fracturing jaw and “A. because the —it is consistent the face and her through tongue. hitting thigh hit- exiting her The medical with the missile ting something upward. examiner testified the mother’s wounds from else Thereafter, appel- this shot were nonfatal.4 Assume, further, “Q. hap- that after that baby lant shot the and the mother several picks up pened, [mother] more times. that a holds to her chest and comes and stands at the foot of the bed Doctor, “Q. pose hypothetical a want to her, holding and fires shots at while she is facts; you. Just assume certain baby in front of or to the side of her you then will ask to render a medical her. facts; just assuming opinion, these all body upon [baby’s] “Are the wounds right? that? consistent with going you “I’m to show what’s been Yes, sir, especially “A. the one on the 2; right? marked as State’s Exhibit all head with the three exits and then those— Assume, will, you diagram, part (indicating). some laceration on this apartment Exhibit is an floor- State’s earlier, IAs said there was some lacera- chair, you plan okay—and that have a a — tion, see, as I over here. Those could be television, bathroom, closet, bed, a by fragment flying frag- done of bone— dresser, rug upon and a the floor here. *5 An intact would ment of missile. missile pillows. rectangu- These will be And this produce small lacerations. It’s those bed; Assume, object okay? lar will be a something per- like shattered and hit the also, will, you if that a woman with the my why opinion I son. That’s formed shape body figure [the same size and my opinion something on the mother — (sic) sitting were on the floor mother] hit first before it hit and made this form of here, right about State’s Exhibit injury part of the mother. on this knees, talking phone, possibly her on the “Q. angle of the From the bullets bed; okay? leaning on the baby] angle of the struck [the “Assume, also, a child about the size fragments bullets and the which struck baby], approximately twenty-nine [the mother], they would be consistent [the bed, lying within a pounds, is on the foot or here, right person standing with a about woman, facing two of this its head with angle? firing at a downward pillows. toward the many “A. It could be consistent with di- rections, you provided align the— “Assume, also, person that some sticks through this window 30-30-ealiber rifle “Q. [the mother] But assume that —let’s shot, goes clips and fires one which say but a woman of [the mother] it’s not fragments right leg of the child and then possibly shape her size and wounded —is leaning who is [the mother] and strikes holding while the child to her. forward, talking phone, facing the on the the wounds to the front of the “Are bed the left side. head, back, fragmenting out the child’s chest and face consistent [the mother’s] right “Would the wound to the [child’s] person standing of a with a downward shot leg [of and the wound to the left chest here, firing downward at her while she is you’ve fragmented area that mother] —the holding the child? consistent with such described —be “A. It could be. wound? you "Q. to determine the tract of Were able
4. The medical examiner testified: that missile. perforated "A. missile the subtissue and Yes, entered, exit- "A. sir. Where it where it face, maxilla, jaw of the of the left side ed, mandible; the direction of the missile is from left right tongue, the exited on the side right, par- downward towards the front. This right jaw one inch to of the at a gunshot kill the [mother] ticular wound did not eight top inches below the midline and coordinate, any struc- it does not involve vital it were that's where head. If that ture.” exited. through went right breast but the shot “Q. it? er’s Is it consistent with head, hit the mother in baby’s and also direction, yes, up If lined in that “A. it’s face or the neck. sir. hit the “Q. that first shot would have So Assume, also, “Q. here right baby in—what?—the side of the goes shots and he out this door fires two head? something minutes and and does for a few out Right “A. side of the head and come and then fires two more shots. comes back open. the front and blow back your findings with a “Are consistent baby’s off. “Q. the back of the head possi- Blow holding still woman—who child— bly lying against the bed or on the now Open, Open. not off. “A. floor? also; “Q. is hit isn’t [the mother] And Yes, sir, provided alignment “A. that correct? see, you the wound is line— probably hit her in Right. “A. think opposite direction of the missile—we call it through it went the face or the neck when gun coming where the from.” baby]. [the guilt-innocence Appellant testified at the “Q. or neck? Face stage that he did not intend to use the rifle like “A. Face or neck somewhere apartment, when he to the mother’s went that.” protection that he took the rifle with him for According appellant, this was when the from the mother’s sons case there was baby, my baby.”7 began crying, “my mother trouble. He testified he wanted to talk to “Q. [the Tell the whether or not why treating him the mother about she was moved the before the bullet mother] badly, but she refused to answer the door.5 struck, you know.” emotionally Appellant testified he was dis- you, happened “A. To be honest with so *6 traught because the mother embarrassed moved; quick, I can’t tell how she but church, hung up phone him at the way, some kind of the first shot went appellant tried to call her and to talk refused her, too, through baby’s head and hit apartment. to him when he came to her shot, [mother’s because after the first Appellant depressed also testified he was ran out the room. sons] problems relationship. because of the in their you “Q. did do next? Tell the What Appellant testified he kill intended to you what did next. baby. Appel- the mother when he shot the stepped I into bedroom and “A. lant also testified when he fired the first up walked and looked at them. shot from outside the mother’s win- bedroom baby appear you? “Q. How did the kneeling by dow the mother was the side of shape. holding baby against her “A. in real bad The bullet the bed left He was know, and, you away breast.6 He said he aimed from the had went in blowed open. baby, and fired in the direction of the moth- side of his head said, ‘Well, daughter-in- ically. right stood there and 5. One of the mother’s sons and her I they anything go?' got law testified wrong did not realize was ‘First we where did the bullet breaking they glass until heard in the got baby Then we her in the face in the head. mother's bedroom. neck,’ you'll check back in the testimo- or the ‘Oh, true, going say, ny. how is If that’s she baby lying State claimed the was on the The oh, baby?’ jaws my baby; my are when both appellant fired the shot from bed when first by high-powered rifle. the blast of a shattered outside the mother’s bedroom window. Nobody through tongue. is went It even ‘Oh, my baby; going clearly you say, hear presented at 7. The State had evidence that this oh, your my baby.’ You can’t do it because probably incapable say- time mother was mangled. [appellant] says mouth is jaw ing anything her because this shot fractured Well, And, See, baby. fired to hit that through tongue. supra. one bullet was and went her are; they prosecutor argued jury: we have this evidence to the doctor said it ain't so. Here pictures it.” [appellant] says [the mother] "The one hit specif- I asked him the face. Remember that? out, I “Q. you you figure “A. Can’t it never How did feel when saw that to, always baby you him like that. I was you had hit the had been was behind behind; side, say, so taking of? like I behind care the — somebody don’t know. If how stuff —I (sic). I “A. didn’t feel real bad baby al- tampered with the after was “Q. you What did do next? ready things like I dead to make look moaning, saying, ‘My baby, “A. She was it, definitely intended to do then it’s know, crying.” my baby,’ you I’m possibility. happened. It could have Appellant testified he then climbed into the going try all sure the State of Texas is her two or mother’s bedroom and shot three try get penal- they can to me the death baby shot the times. claimed he it, you you’ll ty. going However to do do only once. rig you going I don’t know how it. “Q. many you times did shoot So how up. baby? mother] and the [the “Q. baby after it police Did the shoot the baby got “A. I shot —the shot one time. you’re saying? was dead? Is that what through his head and The first shot went Something that. I don’t know “A. like mother].” hit [the how it done like that. someone, possibly police, He testified make shot “Q. baby. the dead it look like It’s cruel baby and unusual several more times to intentionally punishment; killed with one bullet? “Q. [*] Your view is all this [*] [*] [*] happened [*] [*] just you just blasting away to start so decided My did that dam- “A. view is one bullet baby? with her woman him, I age to its head. And after looked baby instantly. nothing wrong with —with his chest “A. The was killed wasn’t already attempt legs, myself— I I I dead. didn’t or his as far as a saw. just there. After I left— it at all. stood there and I’m the one that was to move him —I damage happened to shooting or three more times. And all this other two shot, happened. all this is com- how it But like having me another don’t know every- say, y’all going to do ing to side. And that’s how her I’m sure are her left Judgment Day thing you can. It’s a final they say her arm was shot or some- arm — (sic) 2in end of the world. thing. probably how it was shot. after this That’s *7 they I in The Resurrection.” From there —all them other shots believe baby claim was in the don’t know how —I appellant on the The State cross-examined they I they get in there. But when left his mother prior statements he made to two only saw that one wound to the head from just killings in police after the and to the shot, if that. How all these that first it did killing the mother and which he admitted I get holes on him don’t know. other accidentally killed baby, but never claimed he n n n n n n he told the baby. Appellant testified amazing get bullets “Q. baby Isn’t it how two accidentally killed the but police he body, any- baby’s that without right into in confession. The they put did not that body trying put to— miti- police other prosecutor noted such appellant’s in statement gating matters figure it out. Amazing. I can’t “A. killings. Appellant being sorry for the as his why stand and That’s I wanted to take the pulled pistol previously testified he also my up it to the to part. tell And kill threatened to her the mother and they want to believe. believe what ever left him. himself she n n n n n n forensic and other evidence Exhibit Based on the “Q. take a look at State’s Let’s record, testimony, including in baby’s] right leg, shot [the 36. Here’s argument following behind; prosecutor made the leg right open. blew his from stage: guilt-innocence at the happened? to the you suppose that How do you really “... I happened submit to what “It’s a from reasonable deduction the doc- [appellant] testimony. is that fired that bullet and he tor’s probably clipped [baby’s] leg. that That’s gun, “A in hull was found which was put chest, baby say- when she to her [appellant] If recovered. did not intend to ‘Oh, ing, my baby.’ gun And he took this intent, baby kill why that there was no —if he came there and he stood at the consumed, is it his mind is from his testi- foot of that bed. How far is that? Six statement, mony going and his with ‘I’m Eight feet? feet? Whatever is. And he get baby; going get baby; that I’m that looked and aimed down that rifle he me; going bring I’m going she’s it to you shot. I probably And submit to go get baby; I to the church and want the first one is the one that blew [the baby now?’ He’s fascinated with that off, because, baby’s] holding baby head baby. really And what does he want with chest, going what’s the mother baby? He wants to control the moth- do? She’s down giving there. She’s it this you keep baby prisoner er. If can ‘Oh, (indicating), saying, my baby.’ The it, your and control it and have hands baby’s going little head is to be toward got you’re saying. mamma has to do what going him. She’s not him look at head really [appellant’s] That’s what was going on. She’s to look at him like this. beginning mind from the to the end. It’s a right The bullet through went the little objective: got you. got your control I head. got That’s when [the mother] baby you jack and when me around and splatter. gun again. chest He cocked the you me, going your I’m embarrass to crush you He fired another shot. I submit to baby. probably that’s the one that hit moth- [the you evidence, “I submit from from er], going down into the chest. Then he hatred, [appellant’s] you what know about goes out into the hall and tries a door. him, aiming baby he was at that him, Ramona; looking asked “Youwere you get how in world do two bullet you? Ramona;
weren’t You don’t like do big you hulls in a skull little unless you?’8 get He couldn’t in. And then he you stand this close and aim down that gun again came back and cocked this Why Why rifle? two in the head? one again. Conceivably, fired that’s the one Why the chest. does mother suffer (sic) baby’s came the left side of the fragments? bigger target, a much She’s head, particular because these wounds are you Certainly, can see here. I’m not angles. downward Mamma is on her being say offensive when I that. Her head knees, down standing up, from him. He’s bigger baby’s]. Why a lot than isn’t [the downward, shooting probably with this aiming he at her head? This is a rifle. many shots. It’s natural to assume she’s barrel, long Look down that down the side. losing grasp her on her child. That’s when want, anything you You can hit and he was got the chest. And he said just away. a few feet Think about com- *8 it. It’s in gap the record. There was a mon sense. you why between them. tell gap: the because the bullet wound is to her. She’s Apply “... the test of common sense and bleeding internally from the wound. The baby. reason. meant kill He to It’s fragment lungs, bullet hit her hit her liver. worst, foul, the thing most hurtful he could bleeding internally. losing She’s She’s her baby. do to hurt ‘You [the mother]: her how, grip. you’re firing, you That’s if it; can you won’t let me have won’t let me get a through baby downward shot in it; it; you; control I’ll I’ll kill crush and shot, you, the chest. The last submit to get you you in the face. I told I’d shoot face, went to you gun, her and she fell forward on in the head with this and I’m you.’ the bed. going get to Horrible. Intent. Ramona, mother,
8. There was some evidence that who of involvement with daughter-in-law, may was the mother’s appellant which knew. room, disapproved been in this and that Ramona all; verdict, “Well, you’ve going prove I’m to favorable is sufficient to seen you appellant bore with it. specifically intended kill the baby. “Probably evidence of intent to the best his kill pictures baby of this and the are agree. appellant We evidence shows The testimony. upon it and the wounds doctor’s baby inflicted fatal wounds to the from a baby in does give Even death the testimo- high powered short a distance with rifle that ny. Perhaps type a of this is resurrection had to and reaimed be recocked between (indicating).9 Intent. Intent. Intent. baby in each shot. The was full view of Intent.” appellant, seeing appellant and admitted him. jury appellant instructed appellant initially of Four the five shots fired capital could convicted of if it murder baby, most of the struck the and mother’s intentionally appellant found caused the by fragments wounds were caused of bullets shooting baby by death him with a of the baby. agree that first hit the with the intentionally firearm caused and the death of following statements the State’s brief: firearm, by shooting the mother her with a certainly “A could rational have con- during and of both the deaths occurred cluded, appellant conduct of from the same transaction. also criminal shooting high-powered hunting a riñe at instructed, V.T.C.A., pursuant Penal (whom saw) baby he admitted he Code, 6.04(b)(2), that it could find Section every baby wound to [the mother] with appellant guilty capital of murder it found being only penetration an initial some
appellant intentionally caused the death of being possi- of the [the mother] wounds to by shooting the mother her with a firearm wounds, penetration ble initial from the during the same criminal transaction appellant of the intentionally either admissions that he shot caused death of the firearm, only baby shooting him with a both and from the of by or victims mention baby being intended to cause the death the mother lack of intent to shoot the of shooting firearm, brought up her with a and caused the first time at for the trial a baby by shooting manner, death him with a appellant most incredible that the of firearm, only between intentionally the death caused of [the difference desired, actually what occurred what he baby].” contemplated, or risked is that a different review, applicable Under standard of we injured. property was rationally hold the could have concluded error, appellant point his first claims beyond appellant doubt that reasonable prove specif- evidence is insufficient he baby. kill the specifically intended to See ically to cause the intended death 614 S.W.2d Griffin And, error, baby. in his second (Tex.Cr.App.1981). doctrine, argues transferred intent con- However, inqui this does not end the 6.04(b)(2), apply tained in does not Section ry since claims he have been prosecution murder under Section impermissible legal 19.03(a)(6)(A),and, convicted under an theo application without 6.04(b)(2). 6.04(b)(2), ry See application Section Section the evidence is insufficient —the (Tex. Drinkert, parte Ex support argues conviction.10 The State evidence, op.)11 The ar light Cr.App.1991) (plurality State when viewed most support 11. Since evidence is sufficient had testified on cross-examination he finding specifically would be resurrected from the believed the intended to kill someday. dead baby, would be entitled to the *9 remedy jury were we to of a new trial decide argues it 10. also was error to submit a application erroneously on the was instructed of theory jury charge in the be intent transferred cause that 6.04(b)(2), appellant Section and that suffered theory alleged was not in the indict Drinkert, parte some harm. See Ex 821 S.W.2d However, Court has ment. held trans State, 157, 955-57; 686 v. S.W.2d Almanza theory alleged ferred intent need not in the (actual degree (Tex.Cr.App.1984) 171 of harm application for it to have later in the indictment charge assayed jury must be from error 264, State, case. (Tex. v. Dowden evidence, light jury charge, of state of the entire 1988). Cr.App. gues danger jury no question legislative there was convicted volves a of intent. See appellant capital 782, Boykin of murder based on the 785-86 S.W.2d 6.04(b)(2) transferred intent instruction because the (Tex.Cr.App.1991). pro- Section jury punishment phase spe found at the vides: “appellant deliberately cial issue one that criminally person “A is nevertheless re- baby.12 caused the death” of the sponsible causing only if the result disagree. jury actually The found in actually difference between what occurred special the first issue that conduct desired, contemplated, he or what baby that caused the death of the com- was person prop- risked is that: different or deliberately mitted and with the reasonable harmed, erty injured, was or otherwise expectation that the death of the deceased or affected.” special another would result. Since issue 19.03(a)(6)(A)provides per- Section that a one focused on the con- deliberateness capital if son commits murder he commits duct that caused death and a reasonable V.T.C.A., Code, murder as defined in Penal expectation that the death of the deceased or 19.02(a)(1), Section and murders more than result, say jury another would we cannot person during one the same criminal transac- appellant specifically
found intended to kill 19.02(a)(1)provides tion. per- Section that a baby jury’s based on the affirmative an- intentionally son commits murder special swer to special issue one. The first knowingly causes the death of an individual. type issue contains a of “transferred intent” 19.03(a)(6)(A), therefore, requires Section provision since the could have affirma- knowing two or more intentional or murders. tively special answered issue one even if it appellant specific believed lacked the intent 6.04(b)(2) plain language The of Section baby. to kill the legislative policy evinces to make a defen- Therefore, dant, who, appellant, specif- we address whether Section like acts with the 6.04(b)(2) applies capital kill, to a prose- criminally responsible murder ic intent to for the 19.03(a)(6)(A) cution And, under Section in- consequences voluntary which of his acts.13 including weight proba (D.C.Cir.1980) (former contested issues and F.2d Chilean evidence, arguments tive of counsel and oth Ambassador to the United States and another record). er relevant information in the were killed the same act when a bomb attached to the former ambassador’s car was appel- defensive issue at trial was whether words, control). detonated to remote In other baby. lant intended to kill The main contest- appellant's would had to have believed ed appellant issues of fact were whether shot the testimony capital to convict him of murder under once, baby more baby than whether the was on theory. Although theory a transferred intent shot, the bed when fired the first appellant specifically intended to kill both began crying "my baby, my when the mother theory supported by victims is the best the evi- baby.” baby The State’s evidence shows was dence, prosecutor emphasized we note the shot, on the bed when fired the first once, during closing transferred intent instruction ar- baby was shot more than and the mother guments argued that even if the believed probably incapable saying anything everything appellant guilty said he still would be began crying, “my baby, claimed she murder based on the transferred intent my baby." pen- suffered four initial instruction. Cf. Johnson v. wounds; etration most mother’s wounds (Tex.Cr.App.1987). 302-05 by fragments baby. were caused that first hit the And, appellant jury rationally told what the case, applicable special 12. Under law to this totally story have concluded was a incredible one issue asked: light prosecutor of this evidence. The used the discrepancies [appellant] between the forensic evidence and “Was the conduct of the appellant’s testimony argue appellant ly- baby] caused the death of committed delib- [the ing accidentally killing baby. erately expectation about and with the reasonable addition, since the State’s evidence shows the death of the deceased or another would re- baby’s the first fatal shot to the head was nonfa- sult?” appellant presented tal to the mother and no statutory special other evidence that this shot also was fatal We have noted the first issue mother, only raising type provision evidence the transferred contains a of "transferred intent” appellant’s testimony legislative policy intent issue is that he in- which indicates a to make this special applicable appel- tended to kill the mother when he shot the issue ato defendant in baby. Compare Sampol, position. supra. United States v. lant's See *10 438 defendant, 6.04(b)(2) that a who inten be result would be can
this Court has held Section
19.02(a)(1)
spouse and “accidental
tionally murders his
mur
applied to establish a Section
320,
ly”
bystanders, could not be
kills several
Aguirre v.
der. See
prosecuted
capital
for
murder because
(op.
reh’g). There
(Tex.Cr.App.1982)
326
However,
19.03(a)(6)(A)
victim.
fore,
incorporates murdered his intended
since Section
19.02(a)(1)
the intent to murder
murders and
defendant who with
more
two or
Section
6.04(b)(2)
spouse
“acci
spouse fails to murder his
but
can
used to establish a
Section
be
19.02(a)(1)
bystanders
be
murder,
dentally” kills
could
light
several
Section
murder,
though
prosecuted
capital
for
even
underlying
legislative
policy
Section
6.04(b)(2)
hypo
people than in the above
statutory
special is
he killed less
first
6.04(b)(2)
prosecuted
not be
sue,
for which he could
applies to
thetical
we hold Section
19.03(a)(6)(A)
Legislature
did not
capital
prose
capital
murder
for
murder.
Section
it enact
anomalous results when
intend such
cution.
19.03(a)(6)(A). See Tex.Gov’t
ed Section
on two
interme
Appellant relies
California
311.021(3) (in
Code,
enacting a stat
Section
which,
opinions
in ef
appellate
diate
court
ute,
just
presumed
that a
and reasonable
is
fect,
intent doctrine
hold the transferred
Code,
intended); Tex.Gov’t
Section
result is
prosecu
applied to a murder
should not be
311.023(5) (in
statute,
construing a
whether
victim where the
tion for the unintended
ambiguous, a
is considered
or not the statute
also kills the intended victim. See
defendant
may
consequences of a
court
consider the
1468,
Czahara,
Cal.App.3d
250
People v.
203
construction).
particular
Birreuta,
(1988);
162
Cal.Rptr.
People
836
(1984).
Also,
analyze Califor-
454,
the California cases
Cal.App.3d
Cal.Rptr.
in-
concept
transferred
appears to
nia’s common-law
decisions
The rationale of these
that,
case,
than a statute similar to Section
can be
tent rather
in such a
the defendant
6.04(b)(2).
Legislature
killing
Because the Texas
punished for
the intended
adequately
subject
spoken on this
Section
intent doc
has
applying
so
the transferred
victim
6.04(b)(2),
policy considerations set out
which is
promote
purpose
not
its
trine would
appropriately
are more
the California cases
adequate punishment of those
to “insure the
not the courts.
bystanders,
Legislature,
accidentally kill
left
our
who
innocent
And,
not so well-settled
Cali-
victims.”
the issue is
failing to kill their intended
while
Birreuta,
cases
cites
fornia since one of the
Cal.Rptr. at 638.
See
interme-
acknowledges at least one California
Here, however,
Legislature in
the Texas
way
going
appellate court
the other
diate
mul
aggravate
punishment
tended to
Czahara,
Cal.Rptr. at
the issue. See
herein,
murders,
to that for a
tiple
like those
legislative
decline to frustrate
838.14 We
See, e.g., Narvaiz v.
single capital offense.
6.04(b)(2)based on two Cali-
intent in Section
(Tex.Cr.App.1992),
opinions
appellate court
fornia intermediate
—
U.S.-,
denied,
113 S.Ct.
cert.
concept of
analyzing
common-law
California’s
(under
(1993)
Section
439
review,
Beltran,
standard of
the evidence outlined
are alike.
728
at 390. We
S.W.2d
support
jury’s
distinguishable primarily
above is sufficient to
affir
find
be
these cases
special
mative
showing
answer
issue one. See
cause
no
in them that
there was
State,
(Tex.
v.
746
224
originally
S.W.2d
“murder or violence was
intended.”
Huffman
Beltran,
Cr.App.1988). Appellant’s
225;
point
Huffman,
sixteenth
746
at
728
S.W.2d
390;
error is
Roney,
overruled.
at
at 601-03.
S.W.2d
evidence,
Here,
light
in the
most
viewed
Appellant’s
point
seventeenth
of error
verdict,
favorable to the
shows that murder
asserts the evidence
support
is insufficient to
originally
and violence were
intended.
jury’s
special
affirmative answer to
issue
Appellant
argues
also
the evidence is insuf-
guilt-innocence
two.15 The
at
evidence
shows
aggravating
ficient
con-
evidence is
appellant had threatened the mother with a
together
sidered
with the evidence that he
pistol.
two-year-
He later killed her and her
upset
killings;
after the
he did not kill
baby
old
high-powered
with a
deer
rifle
apartment
though
others
even
he had
range in
apartment occupied by
close
an
so;
opportunity
immediately
to do
he
family
other
Appellant’s
members.
ex-wife
mother,
reported
police
offense to his
punishment stage
testified at the
during
remorse;
pastor;
expressed
and his
he
and
marriage
appellant
their
“knocked her
peacefully
police
he
surrendered
around,” was violent and threatened her with
cooperated
by giving
thereafter
with them
a
weapons. Appellant
physically
abusive
Appellant argues
written statement.
the evi-
to her children
they
and told her if
ever
essentially
dence shows “he
a
committed
up
broke
youngest
he would take her two
passion
experiencing
crime of
while
extreme
children from her. She also stated she lived
However,
emotional distress.”16
it was the
day appellant
fear that one
would shoot
jury’s
weigh
function to evaluate and
these
appellant
her.
Evidence
committed
factors;
this Court does not sit as a thir-
day
murder on Christmas
in 1979 also was
juror.
teenth
Point of error seventeen is
eyewitness
introduced. An
to the murder
overruled.
unprovoked
testified the murder was
victim
was unarmed.
had been on
Appellant’s
third
of error as
parole for that
murder for
about six
overruling
serts the trial court erred in
months when he committed this offense.
suppress
admitting
motion to
his confes
The evidence is
support
sufficient to
appel
sion because the
did not rebut
State
jury’s
special
affirmative answer to
issue two.
testimony
suppression hearing
lant’s
at the
support
argument
of his
the evidence is
that he was told
the confession was true it
insufficient, appellant
Huffman,
State,
help
relies on
would
him. See Dunn v.
721
State,
(Tex.Cr.
Beltran v.
(Tex.Cr.App.1986).
S.W.2d 382
S.W.2d
App.1987),
Roney
any
v.
argues appellant
S.W.2d State
waived
error in
(Tex.Cr.App.1982),
agree.
each of which in
the admission of the confession. We
volved a murder
during robbery
appellant affirmatively
committed
The record reflects
with the
objections
death sentences reformed to life on stated he had no
when the State
appeal
during
because the evidence was insufficient
offered his confession into evidence
support
jury’s
Therefore,
affirmative answers to trial.
waived
error.
(Tex.Cr.App.1992),
course,
118,126
special issue one. Of
no two cases
See Jones
Special
tempted
phone,
issue two asked:
to call the mother on the
that he
violence,
originally
probability
[appellant]
did not
intend murder and
“Is there a
would commit criminal acts of violence that
and that he knocked on the mother’s door before
continuing
would constitute a
threat to soci-
the deer rifle
and her
used
mother
ety?"
baby.
theory, appellant
Under the State’s
inten-
tionally
deliberately
front
killed the
juiy
accept
16. The
did not have to
this view of
punish
treating
of the mother to
her for
him
light
the evidence. Viewed in the
most favorable
badly, and then killed the mother as he had
verdict,
supports
finding
the evidence
promised he would do if she "messed him over.”
intended
and murder
violence
accept
was entitled to
this view of the
when he left his home with the deer rifle. The
evidence.
did not have to believe that
at-
*12
—
denied,
U.S. —,
asking
already
Court
the Court —the
has
t.
cer
in;
(1993).
coming
ruling
made
that it’s
but
of
the
S.Ct.
“Well, speech Your in his jury murder the was trial for there, beyond getting purpose for he’s prior of his conviction have used the nature trying to He’s which he’s introduce it. had a to motive to determine that talking intent and motive and all about accidentally lie when testified he killed purpose prosecutor] [the The that. baby.17 all set out for which introduc- first of he’s ing simply impeach jury this conviction is to appeal, appellant claims should On is, credibility [appellant]; prior felony be- of not have his con- been informed felony Appellant argues person a was convicted of a for murder. cause viction was felon, properly apply to not and he’s a it tends make him the trial court failed to 609(a) (sic). balancing trustworthy, as It’s in Tex.R.Crim.Evid. under law test probative of determining a murder whether value not whether he convicted of admitting appellant’s prior con- robbery or or a theft or It’s the nature whatever. outweighed prejudicial its effect. He he’s a felon. there’s no viction the fact that And that, prejudice in- claims since murder does not involve pure other than reason appellant’s prior nature of get dishonesty, that the to this flammation State wants for; probative value in assess- felony in conviction had no part of the so we’re murder murder, offense, Honor, going properly as for which he is assaultive such 17. “Your if the to convicted, to they needs know that felony, has been evaluate the effect of the former weigh credibility and also know how thing his what it is. It’s one to know that know guy has to in his much a motive the lie pickpocket somebody else's wallet and he’s took offense, greater type of testimony. The quite a of theft from a been convicted might greater probability that he not be tell- thing hijacker. that he's an different armed ing the truth. fact lack of intent to kill. We think the defense is already been convicted of an intentional “Also, that he's dealing here with intent. we’re issues of probative credibility crime; is of his of whether offense not a crime It’s an reckless intentional they or was an intentional act. And not this types negligent of of- such as a homicide. they of so very should know what he convicted you've been convicted is fenses for which may testimony properly your credibility. his to what probative weight evaluate as to and has crime; lose, (sic) got variety give see he’s And we be allowed to that to should they driving example, for while to make decision. their intoxicated— type ought for all that. The of offense and flow of of our law to know “I feel the movement varying weights upon give jurors and let deal you’re has the facts them which convicted is ought felony thing; your credibility. we handcuff Your DWI is one with it. I don't think And allowing your pickpocket you them felony If have a them or blindfold them another. believability properly this wit- second-degree felony possession drugs offense, evaluate testimony.” you’re charged ness’s an with intentional ing credibility. Appellant argues prior lant’s conviction was within the “zone of highly prejudicial evidence was Theus, because the disagreement.” reasonable See offense for which he was on trial and the S.W.2d at 881. prior conviction both involved murder. record, Finally, on this error must decide whether the trial court admitting the evidence was harmless. The clearly abused determining its discretion in prosecutor beginning elicited it at the *13 probative value of appel- the nature of prosecutor cross-examination. The did not prior lant’s outweighed murder conviction its during closing arguments mention it instead prejudicial State, effect. See Theus v. 845 emphasizing the inconsistencies between the 874, S.W.2d (Tex.Cr.App.1992). 879-81 appellant’s State’s testimony. evidence and Here, appellant testified and made an issue And, appellant even this cold record reflects of baby. By so, his intent to kill the doing he major made a contribution to his conviction credibility also made his jury an issue for the testimony jury rationally with could have to decide. The State’s case on the issue of totally concluded light incredible in of all appellant’s respect intent with baby overwhelming the other evidence to the cont largely appellant’s circumstantial as rary.18 Point of error four is overruled. statements to his police mother and the after Appellant’s fifth of error asserts the killings necessarily were not inconsistent trial in allowing prosecutor court erred to with his claim at trial he did intend to kill appellant long cross-examine on baby. how prison prior served in on his murder convic- And, record, on this there is some merit to improper tion because it was an comment on argument the State’s jury at trial that the cross-examination, parole laws. On prior have used the murder conviction prosecutor appellant asked how much time appellant to conclude had a motive lie. eight year he did on his sentence for the Appellant testified on cross-examination he conviction, answered, appellant murder believed the try State would all it could to years, months, days.” “Two nine and five got make sure he penalty, death even prosecutor responded by stating, “Two suggesting police may tampered years, months, days nine and five out of baby’s therefore, with the dead body; it eight?”, answered, “Yes, appellant to which would not have been improper for the sir.” prior use the murder conviction to conclude “Q. you Aren’t the same appellant had a motive to lie about his intent —Michael Wayne Norris —who was convicted of mur- to kill the escape order to the death der, 29, 1988, August in the 174th Dis- penalty. State, See Bustillos v. 464 S.W.2d Court, trict 118, Cause No. 366535. (a 128 (Tex.Cr.App.1971) defendant should not be immunized from attacks on his Yes, “A. sir. credibility by proof prior convictions be- “Q. you much get How time did for that? keeps offense). repeating cause he the same Eight years, “A. sir. addition, In the trial court instructed the “Q. you When killed [the mother and the prior to use the murder conviction baby], long you pris- how had been out of the issue of credibility which on? prejudice. lessened the See Robinson v. Right “A. at six months. State, 895, 701 (Tex.Cr.App.1985). S.W.2d “Q. you How much time did do on that And, it would have been within the trial eight years? court’s discretion to have concluded it would years, months, “A. Two nine and five prejudicial appellant be less for days. prior know the nature of the conviction than speculate about it. “Q. years, months, We hold the trial Two nine and five
court’s appel- decision to admit the days eight? nature out of testify
18. The record reflects
chose to
vice.
guilt-innocence contrary
lawyers’
to his
ad-
Yes,
question, 415
“A.
sir.”
want
a substantial
federal
1547, 39
U.S.
94 S.Ct.
L.Ed.2d
objected.
Appellant then
(1974);
State,
Young v.
preserve
appel
complaint
To
addition,
(Tex.Cr.App.1964).
review,
timely objection
late
must be made.
how his trial was
has failed
demonstrate
52(a).
Tex.R.App.Proe.
See
Failure make
fundamentally
Tex.R.App.Proc.
unfair. See
timely objection
unless
waives the error
74(f). And,
appel-
our review of
based on
prejudicial
error is so
that an instruction to
are not
exceptions,
persuad-
lant’s bills of
we
disregard could not have cured the error.
trial
to allow
ed the
court’s failure
See,
e.g., Hollins v.
ed
but
State’s
stage,
During
punishment
right
shall have the
to make the
counsel
that he
explaining to the court
had one
was
concluding
jury.”
address to the
present
more witness who was not
when the
stated,
objected
prosecutor
‘Your Hon-
Relying
out of state cases and
law
or,
today.
article,
up
will
appellant argues we’re
to extortion
trial
review
object
lawyer
anything this
properly
him
rebut
to
wants
failure to allow
to
court’s
hearsay
him
to
arguments
his trial funda-
to announce
would
State’s
rendered
rule on it.”
This
has
and ask the Court to
mentally unfair.
Court
resolved
“extortion,”
adversely
objected to the
of the word
appellant’s
to him.
use
contentions
court
an instruction to disre-
See,
asked the
for
e.g., Martinez
gard, and moved for a mistrial.
instruc-
(Tex.Cr.App.1973), appeal dism’d
disregard
given;
right
appeal.
tion to
the motion for
The record
mistrial
offering
was denied.
prosecutor
reflects that as the
photos
some
of the dead
into evidence
argues appellant
pre
The State
to
failed
photos,
of other
which
lieu
by failing
get
serve error
ruling
to
on his
inflammatory,
prosecu-
claimed were too
objections. Appellant argues it makes no
tor stated:
got
ruling
difference whether he
on his
objections
prosecutor’s
because the
remarks
[photos]
those
and ask
‘We will withdraw
improper
were so
that an instruction to dis
away
that the
seal them
from the
Court
regard
Appel
could not have cured error.
jury
appellate
include
in the
rec-
but
them
argues
prosecutor’s
lant also
remarks
Appeals,
hope,
ord so that the
Court
especially
were intolerable
in a
mur
may see that
is not
State
Texas
stake,
person’s
der case where a
life
trying
unduly
inflame the
but is
However,
agree.
record,
we
on this
hold
we
fact, doing
duty
proving
its
what it’s
court’s
disregard
trial
instructions to
required
prove:
specific
intent of
prosecutor’s comments were sufficient
particular
the defendant
to kill in this
prosecutor’s
cure error. The
comments were
case.”
isolated, and the
promptly
trial court
in
Appellant objected and asked the trial court
structed
disregard
them. See
disregard
prosecu-
instruct the
(Tex.
Hendricks v.
appellate
tor’s
reference
court. The
Cr.App.1982) (prosecutor’s
objec
numerous
*15
disregard
given;
instruction to
the mo-
during
tionable sidebar remarks
trial cured
tion for mistrial was denied.
by prompt
disregard);
instruction to
Rodri
State,
(Tex.
quez
451,
v.
552 S.W.2d
454-55
Appellant cites several cases that have
Cr.App.1977) (prosecutor’s objectionable re
by
been reversed because of statements
during
mark
the defendant’s cross-examina
prosecutors
jury leading
to the
it to believe
tion of a
prompt
State’s witness cured
responsibility
determining
ultimate
for
disregard).
instruction to
appropriateness
of a defendant’s death
We find
upon
most of the eases
which
appellate
sentence rested with an
court. See
distinguishable primarily
relies
be
320,
e.g.,
Mississippi,
Caldwell v.
472 U.S.
improper
cause the
in
(1985).
comments
them oc
2633,
105 S.Ct.
cured the error. See Bell v. 614 122, S.W.2d 123 (Tex.Cr.App.1981); v. Appellant’s point Cook eleventh of error State, 258, 537 (Tex.Cr.App. S.W.2d 261-62 alleges permitting the trial court in erred State, 1976); 533, Lewis v. prosecutor inject 529 S.W.2d 534 application of the State, (Tex.Cr.App.1975); parole Anderson v. punish laws into his at summation 20, (Tex.Cr.App.1975); S.W.2d 22-23 Lopez phase appeal, appellant ment of trial. On State, 844, v. (Tex.Cr.App. complains S.W.2d following emphasized por of the 1973); State, Bray 89, v. 478 S.W.2d 90-91 prosecutor’s closing argument: tion of the (Tex.Cr.App.1972). We find the other case you [appellant] up pris- “So send [to there upon distinguishable which relies on], testified, years, As he he did two objectionable because the comments occurred months, days. nine He came five throughout tainting the trial pro the entire and, months, within six back killed two State, ceedings. See v. Fuentes 664 S.W.2d people. more You tried to rehabilitate (Tex.Cr.App.1984). 335-38 Points of er him, price you paid and look at for it. eight ror and nine are overruled. gratitude society giving Look
Appellant’s point rehabilitation, tenth of error as him a chance —a chance at failing serts the trial court in put gun erred to declare chance live his life. He prosecutor children, a mistrial helpless commented innocent For women. stop it you’ve got your chance to Now Embarrassing him. He didn’t like what? ” got something. You’ve the evidence. to do it.” a fair trial. got the law. He’s had You’ve object argument; Appellant did not at- prior rehabilitation You know about however, objection was re- argues no stop him and he does tempts. you don’t argument prejudi- quired because the was so If stop him. you had the chance to again, disregard could not cial that an instruction to You will you going to do then? are What See Romo v. have cured the error. possibly. responsibility, had some have (Tex.Cr.App.1982). say your blood on hands. going I’m not argument was a reasonable hold the them.” to wash But it will be more difficult evidence, from the deduction added).” (Emphasis argu- necessarily taken the would applica- to consider the ment as an invitation of error as- Appellant’s thirteenth parole laws. See Todd during tion of the summation court erred serts the trial (Tex.Cr.App.1980). 296-97 phase permitting punishment at the context, argument prosecutor’s Taken if the did not prosecutor argue jury appellant convey was intended penalty for a defendant impose the death beyond which is a reason- rehabilitation jury could no other persons, killed two who appel- from the evidence that able deduction on a impose penalty death defendant ever serving people after lant killed two more complains person. one who killed years pris- two and one-half approximately following portions in the emphasized committing another murder. More- on for argument: over, representation appel- contrary to the this, gentle- ladies and question “The brief, prosecutor’s argument did lant’s you your you render verdict men: When year eight appellant received an not mention statement; has public and it making a are sentence, less than one-half of and he served hears it. upon group, whoever an effect from was released that sentence when he upon criminals the effect Think about necessarily have jury would not prison. The *16 in They the jail. in will read about now invita- prosecutor’s argument as an taken the they about it. The hear paper, wherever parole application of the tion to consider the And look at them about it. defendant tells circumstances, in- these laws. Under times and four all he did: He shot any disregard have cured to could struction parole for pieces while on shot a woman Therefore, any appellant waived er- error. lightly. Isn’t got in he off a murder which point of error Appellant’s ror. eleventh cause more of the going agitate and overruled. do among population that would the same duty higher here I there’s a this? submit point of error as Appellant’s twelfth this: your Think about verdict. with permitting in the court erred serts the trial say the other going to are we What punish during at the prosecutor summation say, you and who come killers before jury if did not argue that the phase ment ‘Look, person one in folks, I went to kill penalty killed impose death the wrong. I’m I wasn’t robbery and the responsible. Appel jury again the would be you going to How are parole murder. in emphasized portions for complains of the lant You let that sentence? give me a death following argument: the People get death with all he did. guy off know, you want to offend “You I don’t than this. Is less sentences for this; just you to consider say ask ’” fair? But with And it’s not an accusation. it. object of these to either Appellant did not your in knowledge you’ve got now the however, argu- both he contends arguments; way back to jurors from all the hands as improper that an instruction so ments were way tracks of up to 1987—the 1979 all the error. have cured the disregard could not threats, violence, gunfire, arguments induced argues both something about you don’t do blood —if duty to return disregard its jury to just a again, you aren’t he kills this and law and evidence solely on the based it. verdict Think about responsible? little bit punishment unethical, and to decide the being issues based on counsel of dishonest and a (R. 1-137-38) argues collateral matters. He also eom- liar engaging and of in extor- plained-of argument point (R. in V-48); error twelve appellant’s tion commented on improper sought because it (R. to hold the 11-461-62); appellate rights proved jury personally appellant’s accountable for argued application and then of the future conduct if he spared the death (R. 11-561-63; V-87); parole law R. ar- penalty. gued jurors responsible that the would be they spared appellant if from death complained-of
We hold the portions of the (R. V-90); and, context, penalty again arguments, in killed proper taken were pleas argued impose for did not law enforcement. See Luna v.
State, 600, penalty appellant, death (Tex.Cr.App.1970) S.W.2d who had killed (no persons murder, prosecutor’s argument parole reversible error in two while on no “people properly impose that have in penalty such ideas this a death county in put the future will only on notice that on a defendant who killed one (R. V-97-98).” county going the citizens of this are not it”); put up State, with Hudson v. disagree. In our discussion of the 147, (no 148 (Tex.Cr.App.1970) re error, foregoing points of we found error prosecutor’s
versible error in
argument ask
point eight,
prosecutor accusing
ing
“going
whether it was
to be a
being
defense counsel of
unethical
a liar
part of the answer to
crime Harris Coun
nine,
guilt-innocence stage,
point
at the
ty,
part
problem”).
Texas or a
More
prosecutor accusing
defense counsel of
over, any
foregoing
error in
arguments
punishment phase.
extortion at the
heldWe
by
could have been cured
an instruction to
these errors were cured
the trial court’s
disregard.
Long
See
823 S.W.2d prompt
disregard.
instruction to
—
denied,
(Tex.Cr.App.1991),
cert.
record, any
complained
On this
errors
U.S. —,
112 S.Ct.
admitting object preserve appeal. party evidence of an extraneous murder to error for committed, 52(a); appellant allegedly Tex.R.App.Proc. Tex.R.Crim. because the See 103(a)(1). appellant mur- Evid. reason rules re State failed to connect One these objection give quire At an is to trial court or punishment phase, der.19 State sought prove appellant party opportunity the other an to correct the committed the objection. 25, murder of Louie Ardis on December error remove basis of the See, Butler, Here, e.g., penA at 239. packet was admitted into evi- 1983, appellant objected, the showing August ap- on had could have dence State by pre pellant objection of a that oc- removed the was convicted murder basis 25, 1979, senting and, appellant proof, if it could not curred December additional that, years.20 have eight do then the trial court could sentenced to testimony depriving of stricken State fiancee, Delajandro, Ardis’ former testified opportunity arguing of it to 25, 1979, that on saw a black December she Therefore, during objection summation. an However, man shoot an unarmed Ardis. she by appellant necessarily would not have been identify appellant not as asked to addition, on this too little and too late. pre- who murdered Ardis. The State record, may prosecutor have appears the connecting appel- no sented other evidence appellant identity stipulated believed to this no ob- lant offense. made appellant Ardis murder since stated jections at trial that the failed to con- State stipulate they want.” would to “whatever else nect to Ardis’ At summa- murder. This another reason should tion, the mentioned of State the details objected prosecutor may have been since the support argument Ardis of murder its appellant’s identity impression under special affirmative answer issue two. the Ardis murder was nonissue. Under argues appeal, appellant On ex- we should circumstances, fail these we hold object cuse his he had failure no object ure to error. Harris v. waived See remedy apparent viable once it became the State, (Tex.Cr.App.), link him to State the Ardis murder. — U.S. —, denied, 381,121 cert. 113 S.Ct. argues moving Delajandro’s He to strike (1992). Appellant’s L.Ed.2d 292 fifteenth testimony have been would too little too point of error is overruled. argues analyze late. He should we issue objected, objection had as if he had the sus- eighteenth point Appellant’s tained, disregard, had the instructed to 37.071, V.A.C.C.P., alleges error Article denied, had a motion for mistrial and then applied, Eighth violates the Amendment complained appeal of the trial court’s fail- I, the Federal Article Sec Constitution and grant ure to mistrial.21 13 of because the tion the Texas Constitution disagree. unduly jury’s presents good special This ease limited the con issues example why generally require mitigating rules sideration relevant evidence.22 V.A.C.C.P., 37.071, argues error 19. Article allows 21. The State waived admission phase failing punishment object failure” offenses at the to the State’s “technical extraneous *18 clearly thoroughly up more observed of a murder case if the State link the murder See, e.g., pen proves by Delajandro the with the one in the defendant committed them. shown State, 227, (Tex.Cr.App. packet. thing v. S.W.2d is no such as a "technical Butler 872 239 There 1994). prove party a the failure" to an issue has burden proving. of the 20. The record reveals State Norris, brief, provides stipulated appellant, Wayne 22. In his no substantive Michael who, Wayne analysis argument separate grounds in was the same Michael Norris 1983, 29th, protection August provided by in the Consti in Cause No. 366535 the how the Texas Texas, by County, protection provided of tution from the the 174th District Court Harris differs Constitution; therefore, only appellant’s was convicted of murder. At that time defense Federal stated, that, stipulate is will federal claim before this Court. counsel "We Your constitutional State, 681, stipulate At we that it's v. 690-91 fn. Honor. this time the See Heitman (Em- they (Tex.Cr.App.1991); 807 else 23 Morehead v. same and whatever want." 577, (Tex.Cr.App.1991). supplied). phasis S.W.2d 579 fn. 1
447
302,
at —,
Penry
Lynaugh,
v.
492
2669-70.
should
See
U.S.
109
113 S.Ct. at
We
(1989).
2934, 106
256
S.Ct.
L.Ed.2d
Pen-
with a ‘“common
evaluate the instructions
ry, the defendant
to an
was entitled
addition
in
understanding
instruction[s]
sense
of the
”
special
special
al
issue because the other
light
place
of
taken
at trial.’
the
all that has
placed beyond
issues
the effective reach of
id., at —,
at 2669.
See
113 S.Ct.
jury
mitigating qualities
the
the relevant
of
Appellant
following
relies on the
evidence
the defendant’s
of mental
evidence
retarda
surrounding
the
the offense:
of
circumstances
him
at
tion
rendered
unable
the time of
“1)
shooting
passion
was a crime of
appreciate
wrongfulness
offense to
the
the
of
arising
quarrel.
quasi-domestic
out of a
conduct or to
his conduct to
his
conform
the
308,
“2)
Penry, at
at 2941.
Appellant
emotionally distraught
law.
S.Ct.
This
was
mitigating
evidence was relevant
evidence
at the time of
[The mother]
the offense.
long-held
by society
of the
belief
had
him in front of
embarrassed
“that defendants who commit criminal acts
security
repeatedly hung
guard,
up
church
are
disadvantaged
attributable
a
telephone
he called her and re-
background, or to emotional and mental
fused to talk
him when he
came
her
may
culpable
problems,
less
than
be
defen
apartment. Appellant
depressed
as a
Penry,
dants who have no such excuse.” See
problems
relationship,
result of
in their
319,
special
at
at
S.Ct.
2947.
issues
offense,
and at
lost
the time
control
placed
mitigating qualities
of this evi
as a result of his extreme emotional dis-
beyond
jury’s
effective
dence
reach be
tress.”
cause
could not be
determined
sure
qualities of
mitigating
hold
this evi
jury
given
“appropri
whether
could have
reach of
dence
within the effective
mitigating
ate”
effect to the evidence in an
jury
answering
special
both
issues. See
swering special
issue one
(Tex.Cr.App.1992),
v.
Joiner
given
only aggravating
the evidence
—
—,
t.
U.S.
denied
cer
answering
special
effect
issue two. See
(1993) (in
S.Ct.
“7)
‘very
disagree.
Section
and
Under
Appellant was remorseful
37.071(f),
in
and
a defendant is “death-
sorry" for Ms conduct
connection with
Article
eligible”
knowingly
intentionally
or
and
the offense.”
if he
person,
know
“deliberately” kills one
and he
Appellant
following
also
on the
evi-
relies
ingly
intentionally
kills another
positive
dence
character traits:
of his
during
criminal transaction. We
the same
“1)
good
in
Appellant had been a
student
requirements
hold
the
tMs scheme satisfies
school.
by sufficiently
Eighth
of the
Amendment
“2)
always been
in Ms
Appellant had
active
death-eligible
narrowing
class of
defen
the
regularly
age
church. He attended
since
State,
dants.
v.
853 S.W.2d
See Johnson
six,
youth
sang in the choir as a
and drove
—
527,
denied,
(Tex.Cr.App.1992), cert.
533
adult.
the church bus as an
154,
—,
lant killed mother. CLINTON, concurring. Judge, 37.071(f),V.A.C.C.P.,23is argues lant Article Judge concurring in Ms Fifth, maintains Eighth Baird unconstitutional under opimon need not address the merits that we Amendments the UMted Fourteenth I, raises his first two Article 13 of the issue States Constitution Sections application of regarding points of error the Texas Constitution to 6.04(b) Code, § the facts finding of V.T.C.A. Penal requires extent it deliberateness Nevertheless, agree. the instant case. only one victim in a Section majority 19.03(a)(6)(A) addresses explanation the without prosecution.24 brief, trial, 37.071(f) provides no substantive Article read: 23. At the time of separate grounds analysis argument un- is convicted of an offense “If a defendant by protection provided Consti how Texas Code, 19.03(a)(6), court Penal der Section provided protection therefore, tution differs from three issues Subsection submit the under shall Constitution; only appellant's (b) Federal regard con- this article with claim is before this Court. federal constitutional murdering the de- duct of the defendant 23; Heitman, at 690-91 fn. See 815 S.W.2d first named in the indict- ceased individual Morehead, at 579 fn. 1. ment.” *20 anyway, readily I culpable the issue and cannot dis- was transferred to render him for cause, majority’s disposition miss the as obiter dic- the death he did the child’s. When he tum, kill, Judge subsequently again, intending Baird does. I therefore write fired separately. actually killing, Georgia, a he committed by criminally
second act which he became responsible for her murder too. Given I. case, theory of the the State was entitled to charged jury abstractly The trial court instruction transferred intent because
on the law of transferred intent out in as set jury needed to know that it was entitled 6.04(b)(2), § supra, viz: appellant to find murdered the child with the person “A criminally responsible is ... though first shot even he had intended to kill causing for a result if the difference Georgia instead. actually between what occurred and what desired, contemplated, he or is that risked requested could have an instruc- injured, a different property that, jury tion to the it should find from the harmed, or otherwise affected.” evidence that he caused the of deaths both Georgia shot, single and the child with a it application paragraph the trial court rely could not on the doctrine of transferred find, jury essentially, then authorized the any purpose. appellant intent for Had re- appellant, that if it intending found to cause instruction, quested such an and the trial Rollins, Georgia the death of caused the it, major- court then denied the issue that the instead, death of find her child it him could ity squarely presented: addresses would be criminally responsible causing the child’s 6.04(b) § using Does authorize in- the same death. The trial court further instructed the single tent twice a act the accused appellant that should it find also inten- intended, another, causes both the result tionally death, Georgia’s caused it could con- unintentional result that would constitute an appellant vict capital murder under former Instead, ap- offense he had intended it? Code, 19.03(a)(6)(A), § V.T.C.A. Penal now pellant objected globally that the should 19.03(a)(7)(A). § not be instructed on the law of transferred If conclusively the evidence showed my intent at all. In view this was an insuffi- Georgia killed both and the child in ciently specific objection present the issue act, single a I agree would that we were majority purports today. to resolve Tex. confronted this case with the issue the 52(a). RApp.Proc., ap- Rule Thus the error majority addresses, viz: whether under pellant appeal pre- raises has not been 6.04(b) § may the State in effect use the majority say. served. That is all the need twice, same finding intent both to authorize a Georgia, murdered whom he II. specifically kill, did, intended to and also finding a authorize that he Judge murdered the Baird reasons that because the ma- child, whom he specifically did not jority disposed intend to appellant’s kill, did, but and thus obtain a convic- argument transferred intent without reach- multiple merits, tion for ing murder. Under the bizarre majority’s treatment of case, facts of this might support evidence the merits constitutes obiter dictum. While finding nothing please killed both mother would me more than to be- shot, single notwithstanding and child gloss majority lieve that places upon However, 6.04(b), one, § later shots were fired. supra, is not an authoritative that, supports theory evidence simply agree also Judge intend- cannot with Baird that ing “[wjords Georgia, appellant to kill first inadver- is dictum. Obiter dictum is of an tently child, opinion caused the death of the entirely unnecessary then for the decision shortly after, act, separate in a Dictionary, intention- the case.” Black’s Law (6th ally 1990). Georgia. agree killed Judge majority with disposes ed. scenario, Baird that under this argument by the same transferred intent Instead, 6.04(b) appel- § intent was not used construing twice. to allow the to use kill Georgia lant’s intent to with the first shot the same intent to hold the both accused *21 intended, applicable capital also not to a criminally for the result he killed is liable cause, to murder under prosecution in fact and hold him liable Section did 19.03(a)(6)(A).” intend, for result he did not but inadver- the majority tently The no addi- caused. offers Majority op. respect, 441. all due at With resolution tional or alternative to is, light, a put complete to in the best it argument. only ratio- transferred intent The worst, totally sequitur. begs it the non At majority proposes nale con- the is its question. 6.04(b). § That is struction of construction 19.03(a)(6)(A) § Nobody denies that necessary majority’s entirely to therefore legislature capital as meant to criminalize disposition appeal. It is in no sense per- of more than offense the “murder” one Baird, Judge obiter dictum. Unlike feel during son the same criminal transaction. it. compelled to address here, however, question The whether both 6.04(b) majority § The first concludes that may killings during same transaction be may applied prosecution capital in a for be purposes “murder” for of this considered 19.03(a)(6)(A),supra. § Ma- murder under only provision ever intended where the killer is an jority op. at 441. This unremarkable only incidentally kill person, one language There is no of limita- conclusion. caused another to die as well. This consti- provision tion otherwise. in either indicate only if the mur- single tutes murder Next, majority proceeds reject appel- derous serve to elevate both homi- intent will 6.04(b) § argument that not be lant’s “should “murder.” are cides to the level of Thus we applied prosecution unin- to a murder for the question began with that we with: left where the also kills tended victim defendant 6.04(b) using §Does authorize the self-same Majority op. at 441. intended victim.” intent-to-kill to make both homicides—both majority’s analysis, It is here that the such specifical- and the one not intentional one is, astray. goes as it ly purposes for of intended —“murders” 19.03(a)(6)(A)? majority simply § as- majority purpose divines that the First the sumes that it does. doctrine, gleaned intent the transferred cases, California is to insure from several conjure try Rather “anomalous” than escape do not the full that criminal offenders clearly consequences a construction does simply they cause a brunt of the law majority prefer, majority op. not at condemnable result different than the one language do focus first on the would better to they to cause. California cases set out 6.04(b) meaning §of of a itself. Where that, actually if offender does reason face, statutory plain on its are provision is we intended, may result he cause the meaning obliged unless to to effectuate punished adequately for that Ancil- offense. Boykin v. do so to absurd results. leads lary liability for result he criminal other (Tex.Cr.App. at 785 caused, may neg- 6.04(b) out of recklessness or 1991). applies only § face On its ligence, may imposed, course. also be what is a “difference between there simply apply any no notion There is need actually [the accused] occurred and what de punish intent the defen- “transferred” sired, contemplated risked[.]” or It deems culpable rea dant full extent his mens “criminally responsible” to a level accused op. Majority to call for. would seem “desired, the offense he commensurate with majority premise, distin- From this contemplated, risked” whenever “the or guishes, viz: offense “what difference between” however,
“Here, actually is that “a different offense Legislature occurred” the Texas person or punishment was or “a different aggravate for committed” intended harmed, here, injured, murders, property otherwise to that multiple like those * * n 6.04(b) provide, does not affected.” capital offense. There Section single for a however, actually fore, occurred” rationale in the cases “what California “desired, contemplated, or doc both offense applying for the transferred intent not offense that was risked” an additional prosecution the unin in a murder trine intended, may then the State specifically victim is victim where intended tended prosecute the accused for the unintended her fatal. wound was not After the infant’s *22 death, respon appellant offense at the same level of criminal entered the room and con- sibility prosecute at it will him Appellant which also for tinued to shoot the mother. left desired, contemplated room, “the or risked” of returned and shot the mother provision speak fense. The does not of “ad again. The evidence is clear the mother was offenses, shot, ditional” but of mortally “different” ones. subsequent wounded a af- ter the infant was killed.1 6.04(b) plain reading § Nor does this reap absurd Legislature may results. The murdering was convicted of well multiple have intended that in a homi- person during more than one the same crimi- situation, only cide where the killer intention- nal transaction. Ann. Tex.Penal Code ally knowingly or caused the death of one of 19.03(a)(6)(A).2 § Tex.Penal Code Ann. victims, prosecuted the killer should be 19.02(a)(1) § provides person that a commits dually for murder and some other lesser “intentionally knowingly murder if he or homicide, capital Surely but not for murder. Thus, causes the death of an individual.” legislative judgment hard to credit a State’s burden the instant ease was to that such a scenario does not call for the prove appellant specific had the intent to kill remedy most disposal. extreme at its both victims. Id. majority clearly favors a construction of may A defendant not avoid criminal re- 6.04(b) § that would render such a killer sponsibility simply person because the killed eligible for penalty death under was not the intended victim. The doctrine of 19.03(a)(6)(A), § supra. The best indicator intent, transferred codified at Tex.Penal legislative intent, however, plain is the 6.04(b)(2), § provides: Code Ann. 6.04(b) language §of majority itself. That a prefers of this Court (b) different construction person A criminally is nevertheless re- plain language than the affords is no basis to sponsible causing for a result if the reject apparent legislative intent as ab- only actually difference between what surd. desired, occurred and what he contem- plated, or risked is that:
For this reason I can concur in the majority result the join reaches. I cannot its n n n n 9fC # ill-considered, event, in any gratuitous, (2) property different in- rationale. harmed, jured, or otherwise affected. BAIRD, Judge, concurring. An illustration of the doctrine of trans- In points of error one and two ferred intent is found in Williams v. contends the evidence was sup- insufficient to (Tex.Cr.App.1978). S.W.2d 507 The de- port his conviction because the doctrine of visiting fendant and several others were at a transferred apply intent does not to the in- friend’s residence. The defendant stood and See, stant case. Tex.Penal Code Ann. pointed friend, pistol at Cook. Another 6.04(b)(2). § majority holds the doc- Busby, entered the room. The defendant trine of applies transferred intent when the Busby. shot at Cook but the bullet struck bystander defendant kills a as well as the The attempt- defendant was convicted of the separately intended victim. I write Id., Busby. ed murder at 507- S.W.2d majority’s expansive believe the discussion appeal 508. On the defendant contended the unnecessary. of this issue is evidence was insufficient to demonstrate he case,
In the instant specifically shot at the Busby’s intended to cause death intending However, mother kill her. and that the doctrine of transferred intent (§ 6.04(b)(2)) mortally bullet hit and wounded the infant. apply did not to Tex.Penal Although injured mother, 19.02(a)(1). Williams, the shot § also Code Ann. Appellant's testimony
1. Legislature expanded establishes that shot the acts the infant once and then shot the mother. The which constitute murder under Tex.Penal 19.03(a)(6) State’s case indicates that § § both the infant and the Code Ann. 19.03. is now found gun 19.03(a)(7). mother suffered § several shot wounds. appellant’s invitation to held We should decline at 508-509. We the defendant’s
S.W.2d reasoning of this presumed kill when he determine the correctness intent to Cook 6.04(b)(2) applicable § in- to the instant because it is not pistol. Under fired realized he had killed support case. When tent was sufficient a conviction mother, Williams, appellant con- Busby. the infant but not the attempted murder also, eventually tinued to killed the at 509. See McNeal shoot and Thus, murders were not com- (Tex.Cr.App.1980) mother. (Tex.Penal 6.04(b)(2) Consequently, ap- § applies single to mitted act.” Code Ann. “a *23 criminally responsible both prosecutions pellant Tex.Penal Ann. for under Code and, 19.02(a)(1)); Aguirre of transferred in- § 732 murders and the doctrine v. (Tex.Cr.App.1982) expanded. (Opinion impermissibly on tent was not 320 (Doctrine of intent Rehearing) transferred hand, majority accepts On the other applies prosecutions under Tex.Penal invitation, considers those cases 19.02(a)(3).). § Code Ann. reasoning, applied holds but that such 19.03(a)(6) § would lead “anomalous Consequently, under the doctrine of trans- majori- 6.04(b)(2), 441. Because the intent, results.” Ante at § is crimi- ferred not ty’s of that issue is essential discussion death. nally responsible infant’s merely case it the resolution of the instant is However, appellant contends the evidence is dictum,3 obiter to support insufficient a convic- nevertheless Ann. tion under Tex.Penal Code join only judg- With these comments 19.03(a)(6). § Specifically, appellant con- ment of the Court. intent to death he lacked the cause the tends intent had been the mother Appellant argues infant.
transferred to the improper to transfer the intent to that it is infant, and, death to cause the mother’s mur- prove intent to the mother’s retain that der. correctly argues that we issue, us to and invites never addressed BEASLEY, Appellant, Roosevelt reasoning of two from the adopt eases v. People v. Appeal California. Courts of Texas, Appellee. Birreuta, Cal.Rptr. Cal.App.3d 208 STATE 162 and, Czahara, (5th Dist.1984); People No. 1365-93. (1st Cal.Rptr. CaLA.pp.3d Dist.1988). these cases the rea- Courts Texas, Appeals of Court of Criminal soned: En Banc. intent purpose of the transferred 28, 1995. June prosecution pun-
rule —to ensure culpability accord with ishment —would by convicting a of two defendant be served single attempted murders for
or more kill one he intended to act which person. Czahara, (emphasis add- Cal.Rptr.
ed). single in "a not committed majority’s the murders were Judge discussion Clinton believes majority’s than Consequently, is more obiter dictum because discussion of of this issue act.” majority which the frames and intent, the manner in to two murders in as it relates transferred Ante, disagree. at 434. resolves the issue. act,” single to resolve this “a is not essential Regardless the issue of the manner which point of error. same; resolved, the facts remain framed