*1 misstating position witness; accidentally into facts dur- does not attack the Therefore, attacks the cross-examiner. series ing questions. one of his prior out-of-court statements that she investigator police made to and a CPS
investigator possibly qualify could or explicit
statements offered to rebut
implicit by of recent fabrication
complainant. ROBERTS, Appellant Sheldon 801(e)(1)(B) party
Rule to reha- allows who, on bilitate witness cross-examina-
tion, subtly has been or direct- accused— The STATE of Texas. ly recently fabricating changing or his —of No. PD-1054-07. testimony for improper some reason.1 essence, party accusing is opposing Appeals Court of Criminal of Texas. recently making up witness and of lying Dec. occurs, that lie. the sponsoring When this party rehabilitate witness of-
fering out-of-court statements that are
consistent tes- with that witness’s in-court
timony and made that were before change had his testi-
witness motive
mony. The rehabilitation evidence shows thing, has said the same witness tune, same before
sung the both and after alleged influence or motive improper Thus, goes logic,
arose. purported (such motive as a
improper influence or
bribe, co-defendant, offer of to a a “deal” lawsuit, forth), not, civil and so
pending did fact, change testimony. the witness’s consistently
The witness has said the same bribe, deal,
thing, regardless any plea lawsuit,
civil etc.
Appellant’s in this is not position case improperly the child was influenced bribe, threatened, or promised
with a or
something way. if in a she testified certain prosecutor
It is that the confused her with on the That questions witness stand. 801(e)(1)(B) testimo- 1. Rule reads: ... consistent the declarant's ny express or and is offered to rebut an hearsay "A ... [t]he statement is not charge against implied declarant of re- hearing declarant at the trial testifies subject improper influence or cent fabrication to cross-examination con- statement, 801(e)(1)(B). cerning the and the statement motive.” Tex.R. Evid. *2 Souza, T.
Christian Asst. Public Defend- er, Dallas, Appellant. Schaefer,
Kim Asst. Criminal District Dallas, Atty., Horn, Jeffrey L. Van State’s Austin, Atty., for State. ment, rounds of firing gunfire numerous
OPINION killing occupants inside three of the J., JOHNSON, opinion delivered the resident, apartment: Laury, Heath MEYERS, PRICE, Court which Laury’s Jennifer Thompson, visitor and COCHRAN, WOMACK, HOLCOMB and and, in the south bedroom girlfriend, *3 JJ., joined. bedroom, Ramirez, north a resi- Virginia mur- charged with Appellant was early stages in the of preg- dent who was indictments, separate alleg- der one by two shooting ended, had Ra- nancy. the When pregnant ing the death of a woman and in daughter mirez’s was also two-year-old alleging her the other the embryo and Bolden, Royale the north a resi- bedroom. person. more than one A deaths of of and the father of apartment dent the of un- appellant convicted two-year-old, the testified that he and a state der indictments. Because the both visitor, Smith, hid in the in Corey closet appellant’s death penalty, did not seek the escaped and harm. the north bedroom imprison- sentences assessed life were by of escaped jumping Another out visitor appealed ment.1 both convic- Appellant the bedroom. in the south window tions, appeals and the court affirmed mother, Moncayo, Elsa Ms. Ramirez’s opinion. each separate Appellant awith daughter testified had in the that her lived sought discretionary review of both deci- apartment her two children from appeals, grant- sions the but court we her death March 2003 until December appeal ed the convic- review year.2 Rogers, of that Emmanuel a co- killing pregnant woman and for defendant, gave a statement written embryo. judgment reform the We attackers knew which indicated Virgi- for the flect a conviction murder of аpartment, and he residents of the court nia Ramirez and remand the trial earlier in the a confrontation described charge. sentencing for on that evening the Mex- apartment at the “where FACTS stayed,” girl ican and Heat3 which fight” girl “the Mexican tried Brandon midnight on December Around Shaw, in the murders.4 apart- a Dallas co-defendant multiple assailants invaded trial, co-defendant, Moncayo. grandmother, At the time of Ms. joint appellant's 1. In a Shaw, trial, living was also convicted of children Brandon Okeith Ramirez’s were Ms. impris- capital murder and sentenced to life Moncayo. with Ms. State, No. 11-05-00265-CR onment. Shaw 11-05-00266-CR, 2007 WL "Heat,” "Lil Laury 3. Heath known as was Tex.App. (Tex.App.-East- LEXIS 3966 2007 Testimony a survivor revealed Heat.” 24, 2007, land, May pet. delivered no brother, "Fifty,” had been shot Shaw’s designated publication). Anoth- for filedXnot er that "Heat” was involved Shaw believed co-defendant, Rogers, Emmanuel Dornail shooting. and was separately tried also convicted was imprison- and sentenced life these murders Royale that Shaw and oth- Bolden testified Rogers v. No. 05-05-00283-CR ment. apartment barged around ers had into the 05-05-00284-CR, WL and No. Heat about sundown and had confronted Tex.App. (Tex.App.-Dallas, LEXIS 1609 Fifty’s shooting. Heat what about he knew 1, 2006, filed)(not pet. no delivered March had knowledge, denied and Ms. Ramirez designated publication). for get others to out of screamed at Shaw and the two-year-old daughter was Ramirez’s Ms. her house. present Her seven- at the time of attack. year-old spending night his was son grounds Vineyard appellant’s two of granted Detective James testified We review, door examination of the north bedroom assert that court of bullets, by made each en- showed holes appeals erred De- tering angles.5 door at different (1) holding that the evidence was Vineyard differing tective stated that the factually sufficient legally both angles impact indicated that either verdict; jury’s door closed being was when the shots were (2) holding did not stationary fired or door a material or lack a contain variance stated, moving. the shooter He culpable mental state. required position body “The and transferred blood behind the [on wall door] brief, “rephrases the door *4 relationship to would indicate questions sufficiency issues” and shе obviously was behind the door. Indi- participation to establish his a evidence probably cation that trying she was upon the state relied when turning close the and door was toward testimony from two who were witnesses or the of the as she wall inside bedroom accomplices in murder and his another was shot.” testimony place did little more than whose alleged appellant indictment shooting him at the scene of the and estab- had intentionally knowingly caused the of the friendship lish his one shooters. by death of shooting Ms. Ramirez her with that, He because the evidence asserts firearm, deadly weapon, a merely presence established his at the lo- intentionally same criminal transaction had friendship his cation of offense and knowingly “anoth- caused death of shooters, of the the evidence with one was individual, er to-wit: an unborn child of insufficient to the conviction. Virginia by shooting Ramirez Ra- Virginia proof Appellant questions whether mirez gesta- while said unborn child inwas pregnant killed a and her that he woman Virginia said Ramirez.” The in the same transaction estab- embryo appellant found guilty cаpital murder as capital murder un- lished when was alleged in the indictment. He pregnancy. notes that aware On appeal, several raised that it expert the state’s medical testified 1) points of including error claims that: to look for someone at Ms. impossible was factually in legally evidence was at appearance Ramirez’s outward the time 2) conviction; sufficient to sustain the tell that of her death and be able to she by submitting trial court erred an er that, argues He because it pregnant. was require roneous that failed to for him to know she impossible was culpable mental state for the death specific intent pregnant, was he lacked the child, thereby causing egregious unborn embryo, kill an element of which is harm. of appeals The court overruled in the indict- alleged murder as both court’s issues and affirmed the trial ment. State, judgment. v. 06-05- Roberts No. 00165-CR, 1702771, Tex. 2007 WL 2007 OF THE EVIDENCE SUFFICIENCY App. (Tex.App.Texarkana, LEXIS 4605 2007)(not this court lacks designated for The state asserts that delivered June complaint publication). jurisdiction appellant’s to review by by injuries caused .40 shotgun. 5. A fifth made No All of Ramirez’s were hole was trajectory could be established from that hole. or .45 caliber bullets. that, sufficiently appeals does not cor- if appellant had been at- testimony roborate the tempting complaint two wit- raise such about accomplice-witness nesses because that claim was never raised uncorroborated testi- court appeals. Alternatively, mony, it inadequately briefed and argues requirement properly the corroboration could ap- overruled. Because accomplice-witness testimony pellant present does not did not the court of claims appeals these apply accomplice- because two witnesses were about the tried, accomplices not in the case being applicability but witness rule’s to the testimo- accomplices ny in an rather were unrelated these two and the court of witnesses appeals consequently murder case. did not rule on that issue, compo- decline to we address appeals The court of observed its appellant’s ground nent of first for review. opinion portiоn appel that there “This Court ‘decisions’of the reviews brief appeal lant’s on direct that could be appeals; courts of do reach we accomplice raising read as issue any merits party’s contention when it testimony non- by must be corroborated has ap- not been addressed the lower State, testimony. accomplice Roberts v. pellate court.” Sotelo S.W.2d *8, at n. supra 2007 WL (1995). * 23-24, n. LEXIS 4605 Tex.App. *5 concluded, however, that, It if appellant Appellant argues considering that issue, to he testimony intended raise such had failed all of the the (including evidence analysis Jackson), to cor provide any requisite light substantive of of Nero and in the that, verdict,” roboration and because his issues of “most favorable to the the analysis brief contained no of the sufficien evidence is insufficient to legally support cy the to of state’s evidence corroborate the He asserts that the bul- conviction. lets, testimony, “any him, such to accomplice-witness even attributed were not inadequately any weapons actually issues would have been connected to of the He properly briefed overruled.” used in the offense. adds that his Id. possession mere rifle the was which a type same as rifle used in the offense is raise, Appellant did not nor did we evidence that he was involved of, grant ground complaining review that, according offense. He to also notes testimony about the of the named Jackson, partici- Nero and he had denied (Nero Jackson) witnesses who had pating in the to shooting and claimed not with in re appellant been co-defendants apartment have entered the gard ato different murder. We observe had shooting place. taken in brief direct appellant’s appeal that on testimony cludes a of the of “In assessing legal discussion sufficien witnesses, Jackson, cy these two Nero the evidence to a' criminal conviction, all simply providing appellant’s evidence we consider the evidence crime, light presence at the most to the mere scene favorable verdict whether, enough that prove guilt. which was not to But determine based on evidence therefrom, any challenge it mаde no to the and reasonable inferences a ra mention testimony provided by juror those two witnesses tional could found the essential have any insufficiency beyond to of the crime a reasonable because elements State, 9, testimony, Hooper did 214 13 corroborate their nor doubt.” v. S.W.3d (2007), any v. argument citing Virginia, make that corroboration Jackson 443 U.S. 318-19, 2781, 307, 560 required. agree was We the court of 99 61 L.Ed.2d with S.Ct.
327 (1979). states, proof Appellant of factual that addressing a claim “Whether insufficiency evidence, embryo all review killed woman and her pregnant we light. of the evidence a neutral Roberts in the same transaction established State, (Tex.Crim.App.), v. 220 S.W.3d 524 Appellant murder when was unaware — denied, -, rt. U.S. pregnancy.” Appellant points out that ce (2007); 169 L.Ed.2d S.Ct. Garza charged killing him indictment (Tex.Crim. pregnant specific intent kill woman App.2007). her in the same transaction. He embryo “[bjecause specific intent argues that appeals
The court of the tes considered required embryo, to kill above and timony Roberts, of thirteen su witnesses. mother, kill beyond embryo’s *3-*8, pra 2007 WL at at of transferred intent’ ‘doctrine cannot Tex.App. It LEXIS 4605 at deter 12-23. re-assign a be used to defendant’s intent show, mined that there at was evidence to kill mother to embryo’s embryo.” an minimum, with the did the he shooting, helped men who Alternatively, appellant argues that the apartment, the shooters break into the appeals court of erred when it failed helped destroy conceal and evi find harm from the egregious lack of after *8, dence the fact. Id. 2007 Tex. at jury charge instruction in * LEXIS 4605 at App. It concluded quired jury specifically find that he that there circum enough direct and the embryo. intended to kill He asserts could, stantial evidence so that egregious error is because the “[t]he minimum, link appellant to the commis element; charge omitted the there sion these murders party. as a Id. suggestion portions is no the definitional reviewing record, After hold that we application para- *6 appeals the of court did not err in overrul- graph prove that the State must Appel- ing appellant’s general to challenges the intent to kill specific embryo.”6 lant’s [the] and legal factual sufficiency of the evi- appeals The acknowledged, court of and Accordingly, dence. ground we overrule agree, the state is appellant and that there one. the appellant no record that or evidence CULPABLE MENTAL STATE anyone that else knew Ms. Ramirez was pregnant time of her Ground at the death. Rob challenges ap- the court of erts, *9, 2007 peals’ holding regarding supra Tex.App. claim at LEXIS appellant’s * jury charge 4605 at The that contained a material evidence showed or lacked required culpable early stages variance a Ms. the of Ramirez was above, upon pregnancy. mental state. As noted brief- The state’s medical expert ex ing “rephrases the appellant plained pregnancy the issues.” “Is- that have appellant’s perceive sue Number Two” of brief now been from impossible mere ob firearm, application deadly paragraph weapon, The states follows: a and the transaction, desiring same criminal while or bearing foregoing Now in mind the instruc- Ramirez, Virginia contemplating the death of tions, you beyond believe from the evidence Virginia dеath doubt, did cause the of Ramirez’s that Decem- reasonable on or about child, individual, 19, 2003, Texas, an while said un- unborn County, ber Dallas the defendant, gestation Virginia born was in acting child said alone as de- party or as a Ramirez, herein, you guilty will find the intentionally knowingly defendant fined or Ramirez, by Virginia capital say the caused death of an indi- the offense murder and so vidual, by shooting Virginia your Ramirez with a verdict. Ramirez; reasonably to be “You couldn’t that conduct is servation Ms. aware her ... certain cause the just looking tell at that she was result. asserts that the pregnant.”7 The state Lawrence that legally evidence sufficient show cert. de (Tex.Crim.App.2007), 914-15 possessed knowledge intent or —nied, -, 2056, 170 U.S. 128 S.Ct. because, respect embryo at the to the (2008), the ac L.Ed.2d 798 defendant was out, shot, time she was the mother cried killing embryo by fatally cused an shoot my baby, baby,” my through “Not mother, he had ing embryo’s a woman argues closed door. The state also that The dating. been defendant was two-tim charged jury trial court properly mother, learning that the ing upon and intent, on the doctrine of transferred and him, he told the pregnant by mother was applying that that doctrine the unin care that “take girlfriend second he would multiple gives tended victim in a murder i.e., The problem, pregnancy. of’ the legislature’s effect to intent to proper evidence reflected the defendant increase the offense to knowledge that killed mother with the are two more victims killed.
when specific she and with pregnant held, embryo. based intent to kill the We appellant’s observe that brief We statutes, upon Penal the relevant Code appeals court of included claims that “intentionally or know person that a who legally factually insuffi- ingly” the death causes of woman cient to sustain the conviction because causes the “intentionally knowingly” material variance indictment between child, any stage death of her unborn the trial court proof, murder, gestation, commits by submitting erred an erroneous statutes plain language require culpable failed to knowing” kill prohibits the “intentional or state unborn mental for the death human, ing regardless any unborn child, thereby causing egregious harm to age. Id. at 915. included, appellant. jury charge with- objection, that, out measured argues The state when Penal Tex. “(a] stating against hypothetically correct Code criminally responsible for charge, is nevertheless sufficient legally the evidence causing knowledge if the difference be- prove result intent or appellant’s *7 he actually specifically what occurred and It respect tween what the unborn child. desired, or risked is that a contemplated testimony pregnant argues that harmed, or person injured, exclaimed, baby, my different “Not my was victim affected.” seeking otherwise behind a baby,” shelter while door, provided closed sufficient kill- correctly asserts that the Appellant juror conclude by which a reasonable could must “inten- ing of the second shooting they that the shooters knew were knowing.” statutory tional or The defini- baby pregnant at a woman and her unborn knowing culpability of intentional or tions of the on the other side door. conduct, respect to the result with of conduct’ correctly “Murder is ‘result of charge, reflected in the fense, culpable requires quire the defendant to have conscious which of the result, to the result to cause the or mental state relate objective desire death, 8-9 she was Ms. was cal examiner estimated that 7. At the time of her Ramirez pregnant. weighed pounds. medi- 5'3" tall and 229 The weeks
329 conduct, i.e., causing of the death.” The argues state that transferred intent State, 398, embryo Schroeder v. 128 400 applies S.W.3d as to the death of the State, State, (Tex.Crim.App.2003), citing v. precedent Cook under Norris (Tex.Crim.App.1994). 884 S.W.2d (Tex.Crim.App.1995). S.W.2d 428 Norris case, that, In this testified girlfriend’s witness while broke into his bedroom hiding he in a through was closet from the assail- and killed her and her window ants, (the scream, two-year-old baby) he heard Ms. Ramirez multiple “Not son with my baby. my baby,” Not right baby before she shots from a rifle. The suffered five through gunshot was shot the bedroom door. But and died The instantly. wounds testimony gunshot established that Ms. mother suffered three wounds and two-year-old daughter Ramirez’s fragments was with numerous of bul- wounds her at the time she shot. Coming baby; out lets that first hit the she died later ended, after shooting night closet in a hospital. The medical ex- testified, witness found Ms. Ramirez response with two- aminer to the state’s year-old stomach, chest”; hypothetical, on her their “[o]n wоunds were con- thus, it “my is reasonable to infer that the through sistent with a bullet fired the bed- baby” to pregnant whom the baby’s leg, victim was room that wounded the window referring during shooting fragmented mother; was the two- then and wounded the year-old embryo. thereafter, rather than the picked the mother up the chest, baby wounded and held it to her indictment, In the instant appel injured additional bullets one or both of lant charged the victims. causing individuals, the death of two Ms. testimony supported The the state’s the- Ramirez and her unborn child while ory that Norris shot and wounded gestation, during the same criminal trans outside, baby from through climbed Capital action. murder is a result-of-con window, broken again fired and struck the offense; duct oriented the crime is defined forehead, baby fragments in- objective terms of one’s to produce, or a neck, juring the mother’s face and left the substantial certainty producing, a speci time, period bedroom for a then re- result, fied i.e. the death of the named turned, fired additional bullets into the State, decedent. Kinnamon v. 791 S.W.2d victims, apartment then left the in full view (1990), 88-89 overruled on other of the mother’s older The sons. issuе of grounds, Cook v. only by transferred intent was raised Nor- 491 (Tex.Crim.App.1994). process Due re testimony, ris’s own asserted quires prosecution beyond to prove kill only he intended to the mother. every necessary reasonable doubt fact constitute the alleged. offense In re jury charge permitted Win 358, 364, ship, 397 U.S. guilty S.Ct. find Norris murder “if it *8 (1970). case, L.Ed.2d 368 In this the appellant intentionally state found caused the alleged appellant intentionally and death of by shooting the mother her with a knowingly caused the death of Ms. Ra firearm and the same criminal child; mirez’s unborn the intentionally thus state was either transaction caused the required prove beyond to a baby by shooting reasonable death of the him with a appellant firearm, doubt that possessed culpa or intended to cause the death of ble mental state with the respect by shooting firearm, to death the mother with a child, of regardless the unborn in any baby and caused death shoot- tent to kill Ms. Ramirez. ing only him awith and the firearm dif- occurred, Aguirre actually between what
ference desired, contemplated, reh’g). and what he or 326 (Tex.Crim.App.1982)(op. on 19.03(a)(6)(A)8 Therefore, person proper- risked is or Section that a since different Norris, ty was S.W.2d at injured.” incorporates more Section two (italics 19.02(a)(1) original). murders Section 6.04(b)(2) to be used can establish appeal, On Norris asserted that the evi- 19.02(a)(1)9murder, light Section dence prove was insufficient to legislative policy underlying Sec specifically intended to cause the death of 6.04(b)(2) the statutory first baby. jury The Court found 6.04(a)(2) issue, special hold we Section rationally intent; specific could have found 19.03(a)(6)(A)capital to applies a Section baby in full appellant, view of “was prosecution. murder seeing him.” Id. appellant admitted at Id. 437-38. portion Norris also asserted that a This conclusion is at odds the Nor- (in above) per- jury italics instruction that, recognition capital ris Court’s to him under jury mitted the convict 19.03(a)(6)(A), pursuant murder to Section impermissible application of transferred each death or know- must intentional intent, out as set Tex. Penal Code ing “specific must be a discrete 6.04(b)(2). § argued The state that “there —there kill” intent to to each death. A classic jury no danger was convicted example of of trans- proper application murder based on the transferred of firing ferred intent is the act at an intent instruction because found person is in a intended victim while punishment phase special issue If group persons. of other the intended deliberately one that caused the ‘appellant killed, is If the offense is murder. person baby.” death’ of the The instruction killed, different person in the group is on the issue asked whether special first pursuant offense to Tex. is murder baby Norris caused the death of the delib- 6.04(b)(2): person § “A nev- expecta- Penal Code erately and the reasonable criminally responsible for caus- ertheless baby tion that or another the death ing a result if between difference Id. at 437. would result. actually he de- what occurred what acknowledged The Norths Court sired, that: a contemplated, or risked is pursuant Tex. Penal Code property injured, different 19.03(a)(6)(A) in- § or more requires two harmed, (Empha- or otherwise affected.” knowing analy- tentional or murders. Its added.) case, sis there one either 6.04(b)(2) § application sis kill resulting intent to and one death. 19.03(a)(6)(A) § one paragraph. short killed, of Section If both are we can plain persons 6.04(b)(2) legislative charge capital use intent to policy evinces transferred defendant, who, unin appellant, make like murder based on the death of the kill, victim, using specific require crimi tended as that would acts with the the re nally responsible consequences single for the intent to kill And, knowing voluntary quirement acts. this Court has intentional and Further, applied permits held 6.04 Section can be deaths. while 19.02(a)(1) per intent if a establish a Section murder. use of transferred different *9 19.03(a)(7)(A). 19.02(b)(1). § § Now Now 8. 9. harmed;10
son in
such use is not author
embryo, by killing
this case the
the moth-
if
killed,
er,
ized the intended
separate
victim is also
as
there
be a
specific
must
intent
(shot
Lawrence,
permit
that would
to
supra
preg-
one intent
to kill to
do so. See
support more than one
girlfriend
specific
death.11 This is
nant
intent to kill
Norris;
fallacy
embryo).
It
permits
undisputed
appel-
the intent
to cause one intentional or
lant
not
knowing death
did
know that Ms. Ramirez was
deaths,
one
pregnant. Lacking knowledge
intentional and
of the em-
knowing,
bryo’s
the other
existence, appellant
unintentional.
form
We
could not
overrule Nonis to
separate specific
the extent that it
intent to kill
allows
the em-
such use. Transferred
may
bryo,
intent
be used
as is required
statute.12
as to a second death to support
charge
say
Nor can we
that intent to kill the
capital murder
alleges
the deaths of
two-year-old,
if such an
even
intent had
more than one
during
individual
the same
been proved, could transfer
embryo
to the
criminal
transaction
proof
there is
under these facts.13 Transferred intent in
of intent
kill
per
same number of
this
principle
context is based on the
died,
sons who actually
e.g., with intent to
an act
intended to kill one
instead
kill
Bob,
both Joe and
the defendant killed
If,
killed another.
with intent to kill the
Joe
may
if,
and Lou. It
also be
in
used
two-year-old, appellant had fired a bullet
tending to kill both Joe and Bob
being
that entered Ms. Ramirez’s uterus and
shot,
a bad
the defendant
Mary
killed
embryo,
killed the
transferred intent
Jane. This
resolution comports with
lie. But that
not
the case here. The
Aguirre
(Tex.
But that is not the Ap case here. We cannot conclude that there suffi- pellant A, intended to kill and did so. If cient constitutionally he is to charged with also intentionally quired proof beyond a reasonable doubt knowingly killing a person, second appellant intentionally knowingly Had two-year-old daughter 19.02(b)(1), Ms. § Ramirez’s requires because that section died separate course of this attack specific instead intent to kill. It there- mother, murder, of her appellant would have been support capital fore cannot be used criminally responsible pursuant for her death requires knowing a intentional and application to the of the doctrine of trans- murder for each victim. 19.02(b)(2, 3). through ferred § He separate charge also be vulnerable to a was, however, Appellant vulnerable to a causing murder for the death of a charge of murder for his intent to kill Ms. age years. child under the of six Ramirez and a murder for Penal Tex. 19.03(a)(8). § the death of Ms. Ramirez in the course of the Code occupants apart- murders of the other of the charged 11. The second death burglary apartment. could be ment or of the 19.02(b)(2) (intends pursuant § bodily injury cause serious evidence, and commits an 13. Based on the the attackers knew clearly life) dangerous act to human apartment the residents of the and would 19.02(b)(3) (commits attempts to commit have been aware that two children lived felony, manslaughter, other than and in the two-year-old there. The was in the bedroom unharmed, attempt, course of ... the commission or with her mother and was known, clearly dangerous commits an act though to human easy, she was a and available life), pursuant target. but not as murder *10 Code, per- a the Texas Penal Under unborn the death of Ms. Ramirez’s
caused
if he inten-
capital murder
son commits
ground two.
appellant’s
sustain
child. We
knowingly causes
death
tionally or
of the court
judgment
We reverse
...
person
than one
“more
to reflect
judgment
reform the
appeals and
includes
“person”
A
transaction.”
same
Virginia
the murder of
for
a conviction
in turn
The Penal Code
an “individual.”
trial court for
remand to the
Ramirez and
human be-
as “a
an “individual”
defines
that murder
for
punishment
assessment
alive,
an unborn
including
ing who is
conviction.14
from
every
gestation
stage
child at
It follows
fertilization
birth.”
PRICE, J.,
concurring opinion
filed
in-
that a
who
provisions
these
J.,
WOMACK,
joined.
which
knowingly causes
tentionally child,
her unborn
death
woman
P.J.,
dissenting
KELLER,
filed a
capi-
commits
any stage
gestation,
opinion.
murder.2
tal
HERVEY, J.,
dissenting opinion
filed a
in this case is
us
question
The
before
KEASLER,
KELLER, P.J.,
say
permissible
legally
which
it is
whether
knowingly
J.,
intentionally or
joined.
when,
baby
so
gestating
killed Ramirez’s
PRICE, J.,
concurring opinion
filed a
reveals, he had no
far as the evidence
WOMACK, J., joined.
pregnant.
that she was even
knowledge
State,1
it clear
made
In Lawrence v.
we
State,3
expressly
the Court
In Noriis v.
under
that,
a conviction
in order to obtain
of trans
statutory doctrine
held that the
mur-
theory
capital
multiple-victims
to obtain
applied
intent
ferred
theo
multiple-victims
are a mother
the victims
der where
under
conviction
Presumably this
child,
must have
capital
a defendant
murder.4
ry
her unborn
rely
entitled to
the deaths of means that the State
intended to cause
specifically
6.04(b)(2) of the Penal Code
upon Sеction
said:
mother and child. We
both
kill,
responsible for
criminally
intent to
grant
appellant's
cific
review of
14. We did not
And,
voluntary acts.
consequences
mur-
and life sentence
conviction
6.04(b)(2)
case,
can be
judgment
companion
and that
held Section
this Court has
der in the
19.02(a)(1)
supra.
See footnote
remains undisturbed.
a Section
applied to establish
19.02(b)(1)]
Aguirre v.
murder.
[now
(Tex.Crim.App.2007).
(Tex.Crim.App.
1.
But legal review, spect sufficiency question and to that I we *13 focus not on the charge actually that now turn. given, but on “the elements of the offense (as law)7 Eight by individuals defined as by defined the hypothetically correct apartment were in the the before assail-
jury charge for the
hypothet-
case.”3 The
Laury,
ants entered. Heath
Jessica
ically
correct
general
includes
Thompson, and Bradlee
in
Bowie were
the
criminal liability elements that need not be
living
Royale
room.
Bolden and Corey
pled
indictment,
such as the
law
Smith
in
were
the front bedroom. Ra-
Though
transferred intent.4
there is a
child)
mirez (pregnant
with
unborn
potential problem
considering
with
a non-
two-year-old
Patricia were in the back
theory
indictment
liability
that is com-
bedroom. Each bedroom had a door that
pletely absent from
jury charge, any
opened out
the living
into
area. After the
theory that
encompassed
is
by
at least
assailants
apartment,
entered the
Bowie
portion
abstract
of the charge must be
fled to the back bedroom because he knew
in
review,
considered
a sufficiency
there
open
would be an
window. Before
it is not contained in
application
para-
window,
exiting through that
he noticed
graph.5 Tracking the
relevant
Ramirez and Patricia
in
statute,
transferred intent
were
the abstract
portion of
room.
then
Bowie
ran home and had no
charge in this case
provided,
further
person
knowledge
“A
happened
what
nevertheless crimi-
nally responsible
apartment.
one,
for causing a
No
other than the
result if the
assail-
ants,
difference
actually
Laury
between what
oc-
witnessed
and Thompson’s
desired,
curred and
what
movements
the house
contemplated
during the en-
counter,
risked is that a
different
but their bodies
were later discov-
injured, harmed, or otherwise
bedroom,
affected.”6
ered
the back
so an inference
(the
The identity of the actual
they
victim
cul-
could be
drawn
fled there.
transferee)
pable-mental-state
required
bedroom,
the front
Bolden and Smith hid
1995).
1. 902
(Tex.Crim.App.
S.W.2d 428
given erroneously applied only the law of
7.02(a)(2)”);
State,
parties
§
under
Grissam v.
2. See id.
(Tex.Crim.App.2008)(sufficien-
S.W.3d 39
cy
analysis
of the evidence
to both
theories
State,
burglary
should
(Tex.
have been conducted
3. Malik v.
1997).
jury charge,
where both were contained in
Crim.App.
though only
application para-
one was in the
graph).
4. Id. at 239-40.
6.04(b).
§
6. See Tex. Penal Code
(2008)("it
Vega
5. See
Patricia was unharmed. HERVEY, J., dissenting opinion filed a rationally juryA could believed have KELLER, P.J., KEASLER and in which together that Ramirez and Patricia were J., joined. fact, times, in Ramirez at all and that become in has Patricia back bedroom to The issue this case carried from the principles, escape intent” attempt front bedroom in an “transferred whether 6.04(b)(2), Tex. ra- in Section their attackers. A could likewise codified Pen. capital- in a tionally apply multiple-victim Code, believe assailants saw the defendant prosecution1 Ramirez Patricia in the back murder both and when an unin- leading in and living or area to murders intended victim bedroom (in mother and bedroom, fur- case a the front could tended victim this child). years thirteen pursued her unborn Over ther believe the assailants majority six-judge in ago, child at them both this Court a mother and and shot more than this in opinion the door. Ra- settled issue closing as Ramirez was scream, and construed baby,” paragraph”2 “one short my “Not referred mirez’s 6.04(b)(2) application permit obviously two-year-old Section most to her child in a such principles intent” indicated belief that of “transferred Ramirez’s own Statе, 902 S.W.2d or at See Norris v. attacking, the assailants least case. were (McCormick, herself, (Tex.Cr.App.1995) endangering, not but Patricia 436-39 Overstreet, Meyers, White, P.J., joined That continued to as well. the assailants 19.03(a)(7)(A), (person "Knowledge” culpable § mental 1. See a sufficient Pen.Code, Tex. involving capital the murder state for murder intentional- capital commits murder id., person. than See of more one per- than one ly knowingly more murders 19.03(a)(7)("murders per- §§ son”), more than one transaction). criminal son the same knowingly 19.02(b)(l)(“intentionally or individual”)(emphasis the death causes added), (erroneously Maj. op. claim- at 330 2. But see 6.03(b)("knowingly” defined as in ing analysis intent issue of transferred reasonably cer- ... “aware that conduct is paragraph”). "one short Norris.is result). prohibited a tain” to cause JJ.).3 Keller, bystanders could be Saying tally” kills several Mansfield and now murder, prosecuted capital six-judge majority opinion this for people than in the reasoned, though Court he killed less incorrectly overrules for he could adopts reasoning hypothetical much above it and capital for murder. Judge concurring oрin- prosecuted not be one-judge Clinton’s Norris.4, (the ano- Maj. op. Legislature The intend such ion See did ” it “fallacy permits of Norris “it malous results enacted stat- [the is that when murder to knowing making to cause one intentional or ute it murder deaths, person during one intention- more than the same death one unintentional”). knowing, transaction]. the other criminal al Norris, at 438 (emphasis holding majority opinion The original).5 based Norris was on the of Sec- it on the also relied A consequences consideration of the Judge “anomalous” results of Clinton’s particular construction statute is an 6.04(b)(2), construction Section at least fallacious, accepted, and not a flawed applied multiple-victim capital- statutory method of construction. See prosecution. majority opinion (in Norris, construing S.W.2d at Judge in Norris noted that under Clinton’s statute, consider consequences court concurring opinion in Norris: of particular whether or not construction defendant, result that a ambiguous); would be statute is considered
[T]he Code, (in intentionally 311.021(3), enacting spouse who murders his Tex. Gov’t statute, “accidentally” bystand- kills sеveral presumed Legislature it is ers, result); prosecuted just could not be intended a and reasonable *15 Code, (in 311.023(5), § murder because he murdered his intend- constru Tex Gov’t However, ing statute, ed victim. a defendant a court consider conse who quences construction); the intent spouse particular murder his see 782, fails murder his but also 818 spouse Boykin “acciden- v. S.W.2d 785 judges participating significant Two of the in the deci- be considered because the usual in sion Norris did not on the (and vote merits of the essentially upon rationale the one relied Norris, "transferred intent" issue. See 902 case) opinion in in the Court’s this for not J., (Maloney, concurring S.W.2d at 448 in applying principles intent" when "transferred result) J., (Baird, concurring and at 451-52 a defendant his 'intended victim and murders Thus, only judgment). six out of the "simply is that unintended victim is judges, seven who considered merits of unjust” "equally to treat defendant as this Norris, this issue in decided that transferred culpable” with the defendant "who commits principles apply in cases like this. intending people.” two acts kill two See Norris, Harris, (Clinton, Maryland Survey: 4. See 902 at 448-51 Elizabeth F. S.W.2d J., result) concurring only (noting in that ma- Maryland 1995-1996: Decisions: The Reсent jority's holding on intent” "transferred issue Appeals Court Md. L.Rev. 56 758-60 "entirely necessary majority’s was to the dis- (1997). (as, This is debatable for rationale position appeal” stating of the victim, example, dead well the unintended principles "transferred intent" in Section issue, legislators debating as individual 6.04(b)(2) apply when should not defendant in might reasonably quite consider both of these single act kills victim and an unin- intended hypothetical equally culpable). defendants victim). tended event, any rationale does not this debatable apply hypothetical defendants in to the Norris should that each It also be noted of these (each having hypothetical culpable equally defendants Norris has the since each is (each culpable having same mental state spouse). the intent to murder their spouse). intent to murder their This should 338 (court
(Tex.Cr.App.1991) subject will not to the death penalty follow while plain meaning doing of a statute if so hypothetical defendant who murdered consequences would lead “absurd” that more It cannot people fairly would not. intended). Legislature could not have And majority opinion said in Norris 6.04(b)(2) the construction of Section erroneously for rejecting reasoned Judge concurring opinion in Nor Clinton’s 6.04(b)(2).7 this construction of Section ris have the “anomalous” would allowed majority opin It also relevant that the Norris, Judge results discussed in since ion in finds Norris other out- opinion concurring Clinton’s would have of-state courts that have decided supported in a decision that “transferred intent” principles apply “transferred when 6.04(b)(2) tent” principles Section would a defendant murders both intended permit hypo the murderous intent of the victim and an unintended in a victim even defendant, fails thetical to murder his who case like involving this a murdered woman victim, all intended to be transferred to unborn child. See Pennsylvania bystanders.6 the innocent (Pa.Su Sampson, 900 889 A.2d plain This be consistent (defendant per.Ct.2006) responsible 6.04(b)(2) language of Section since each murders mother and unborn child under bystander person” innocent is a “different Pennsylvania statute similar Section 6.04(b)(2). Norris, under Section Carlson, 6.04(b)(2)); People v. Cal. (Clinton, J., concurring S.W.2d at 450-51 (1974) App.3d Cal.Rptr. (court result) only plain should follow (doctrine applies of transfеrred intent 6.04(b)(2)); of Section see though original object of the assault is § (person criminally responsi killed as as the death well whose causing ble differ “for a result result; therefore, “in unintended actually ence occurred between what present case in application per what he desired” is that “different intent, doctrine of transferred the law harmed); 811.012(b), son” was Tex. felonious intent would transfer defendant’s (singular in a Code, statute includes Gov’t to kill his to the wife fetus [murdered] the sin plural and the includes plural criminality of defendant’s act gular). toward Judge concurring Under Clinton’s *16 Norris, fetus in defen the be the same as that direct opinion hypothetical the wife”); Norris, dant less to people who murdered would be ed see also 902 And, concurring actually Judge opinion persons 6. in Nor- Clinton’s who died.” even if this stated, 6.04(b)(2) ris claim did not otherwise. is what Section then the judgment appeals the court of in this case opinion 7. in this is inconsis- The Court's case is, Presiding affirmed there should be since Judge concurring opinion Clinton’s tent out, Judge points dissenting opinion Keller’s misconstruing by plain the Norris at evidence that intended to kill person" the "diffеrent element Section persons actu- least "tire same number of who 6.04(b)(2) by stating that transferred intent ally opinion The Court’s criticizes the died.” "may be used as to a second death to majority following opinion in for not Norris alleges murder that the 6.04(b)(2) plain language the of Section but during deaths of more than one individual the give plain language then the fails to effect to only if there same criminal transaction person” element of that stat- "different proof of intent kill the same number of Norris, ute. see 902 S.W.2d 450-51 But at persons Maj. op. actually who died.” See (Clinton, J., result) (court concurring only in added). 6.04(b)(2), (emphasis 14 Section however, plain language should follow of Section plainly not that trans- does state 6.04(b)(2)). "only be used if there is ferred proof of intent kill the same number of
339 (noting split at 438 silence after a has been construed S.W.2d California statute issue).8 It legislature authorities on the clear is some that in- thus can tended should con- that reasonable minds differ on the “the same construction statute”).9 “transferred majori applied intent” issue tinue to be And opinion easily ty Legislature Norris settled even under could have done this 6.04(b)(2). 6.04(b)(2) similar to reenacting statutes Section without Section phrase, same terms but the additional It, therefore, fairly cannot be said that Medrano, really “we mean it.” See 67 disregard the Court should the rule of (Womack, J., dissenting, S.W.3d at 907-08 stare decisis and Norris on the overrule J.) (if Price, by judicially joined construed erroneously basis that Norris was rea- easily right by statute “could set clari- soned from the outset.” “flawed See fying legislative language, the choice not to Medrano, State v. 901-03 significant do so” might be more than (Cochran, J., (Tex.Cr.App.2002) joined by when a clearly unambiguous stated and Keller, J., Keasler, Hervey, P. and Hol- judicially statute is leaving misconstrued JJ.) (a comb, disregarding reason for Legislature with little choice but to reen- rule of stare that the previous decisis is act the same statute in the terms but with outset). decision was flawed from It is it”). really the additional phrase, “we mean significant Legislature also has changed not construction Section This case seems to meet all of the crite- 6.04(b)(2) ria, by approved by eight Norris the more than members of this years thirteen since Norris was Court participated decided. who decision in Medrano, Medrano, following See 67 at 902 (legislative S.W.3d rule of stare Lovett, People Mich.App. standing says explicitly 90 case law if (1979) (in this, 283 N.W.2d legislature cases like amend does not a statute after it many construed, there are as crimes as there are vic judicially has been we assume tims); Ford v. Md. 625 A.2d legislature approved judicial (1993) (McAuliffe.J., 1004-05 concur (Citations omitted). construction. Con- (and ring) particularly cases cited a 1992 un trary long-established precedent, to that published by Supreme decision the Delaware majority "legislative contends in- Court Robinson v. State Del. LEXIS necessarily equate legis- action does not (Del. 1992) construing a Delaware statute approval." lative Whether not that is very similar to Section and federal true, the is made without refer- assertion applying court principle decisions "the Second, any authority. ence to not transferred intent in cases where the intended legislature "immediately did the not victim is killed the same act that kills the applicable response amend” [the statute] in Harris, victim”); supra. unintended precedent], to [this Court's overruled it has not, day, any changes to this made to it. opinion Court's does address the Third, precedent can overrule this Court Legislature’s change failure construc- can, simply by saying that it what has be- *17 6.04(b)(2) by majority tion Section come of stare Are we now to decisis? de- opinion in Norris. The author Court’s considering cide issues without opinion in expressed this case the view in past? Finally, collected wisdom of legislative Medrano that silence after a statute legislative how are we when to know inac- judicially very persua- has been construed following judicial interpretation legislative approval sive evidence of of that agreement interpretation statute with the judicial construction: legislature sitting and when it is the back recognize addition, waiting Court to for this majority’s rationale for remedy it has made an error that error overruling prece- Court’s overruled [this precedent on its own? dent] distorts this Court's Medrano, (Johnson, J., authority. problems several 67 S.W.3d There are First, remand). majority's analysis. long- concurring only with the in the decision to is, therefore, It difficult not to
decisis. this ignores that the Court rule
conclude because, simply Norris
and overrules Medrano, at 904
can. But see
(Johnson, J., in the deci- concurring only remand) (“[I]f can this over-
sion to Court can, saying it precedent simply by
rule ”). ? become stare decisis has
what respectfully
I dissent. JOHNSON, Benny Parte John
Ex
Applicant.
No. AP-76062. of Texas. Appeals of Criminal
Court
Dec.