                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 CHRISTOPHER BUCHANAN,                            §
                                                                  No. 08-06-00203-CR
                    Appellant,                    §
                                                                    Appeal from the
 v.                                               §
                                                              168th Judicial District Court
                                                  §
 THE STATE OF TEXAS,                                           of El Paso County, Texas
                                                  §
                    Appellee.                                     (TC# 20050D01234)
                                                  §


                                           OPINION

        Christopher Buchanan appeals his conviction for murder. A jury found him guilty and

assessed punishment of 28 years’ confinement. On appeal, Appellant asserts in a single issue

containing four parts that the evidence is insufficient as a matter of law to sustain his conviction

for murder. We affirm the trial court’s decision.

        In the afternoon of February 9, 2005, Lisa Finley invited some friends to her house in

Northeast El Paso, Texas. Appellant Chris Buchanan, Terrance Ferrar, and Heather Ayon were

among the people invited. Appellant arrived with a bottle of E & J brandy for everyone to drink.

After everyone finished the bottle of E & J, Ms. Finley, Ms. Ayon, Mr. Ferrar, and Appellant

decided to go to a bar. First, they went to a bar called Sisters. After Sisters, they went to a club

called Bangkok and had more drinks. As Bangkok was closing, Ms. Finley, Ms. Ayon, and

Appellant left and got into Ms. Ayon’s car. Mr. Ferrar exited the bar a few moments later and

approached the side of the car where Appellant was sitting. He told Appellant that someone was

inside “talking shit.”
        Appellant got out of the car and went back inside the bar with Mr. Ferrar. They came

back to the car a short time later; Mr. Ferrar was angry and cursing. Appellant suggested that the

two of them should find someone to beat up. As they drove away from the club, Mr. Ferrar told

Ms. Ayon to pull over; he got out of the car and started to chase a stranger. The stranger got

away, but a short time later they found a homeless man walking through a restaurant parking lot

on Dyer Street. Mr. Ferrar and Appellant attacked the man, later identified as Mr. Roud.

Appellant struck Mr. Roud at least three times in his cheek, while Mr. Ferrar kicked and punched

him. The men ignored Mr. Roud’s pleas to stop. At one point, Appellant and Mr. Ferrar began

stomping Mr. Roud’s head, back, and body while he was down on the asphalt. Mr. Roud lost

consciousness and later died at a hospital.

        The sole issue presented to the Court is whether the evidence presented at trial was

legally sufficient to sustain his conviction for murder. This issue contains four parts regarding

the legal theories included in the court’s charge to the jury. Specifically, Appellant contends: (1)

that the jury improperly convicted him under the felony-murder doctrine in violation of the

merger doctrine as embodied in Garret v. State, 573 S.W.2d 543, 545 (Tex.Crim.App. 1978); (2)

that the evidence is legally insufficient to establish a specific intent to kill; (3) that the evidence is

insufficient to support a finding that Appellant assisted, promoted, or encouraged his

codefendant, Terrance Ferrar to commit an act clearly dangerous to human life; and (4) that there

is no proof of any agreement or overt act by Appellant in furtherance of an alleged conspiracy to

commit an assault.

        In part one of Appellant’s sole issue, he asserts that the State and trial court employed the

felony- murder doctrine. The State argues to the contrary that the jury was never charged on the


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felony-murder doctrine, but rather the charge tracked the doctrine of transferred intent under

Section 6.04(b) of the Texas Penal Code, which provides in pertinent part:

       A person is nevertheless criminally responsible for causing a result if the only
       difference between what actually occurred and what he desired, contemplated, or
       risked is that:

               (1)     a different offense was committed . . . .

TEX .PENAL CODE ANN . § 6.04(b)(1)(Vernon 2003).

       Pursuant to the Texas Penal Code, Section 19.02(b)(3), a person is guilty of felony-

murder if he commits or attempts to commit a felony, other than manslaughter, and in the course

of and in furtherance of the commission or attempt, or in immediate flight from the commission

or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes

the death of an individual. TEX .PENAL CODE ANN . § 19.02(b)(3)(Vernon 2003). There is no

such language in the trial court’s jury instructions. The trial court merely charged the jury on the

theories of individual liability, party liability, conspiracy to commit murder, and transferred

intent, under which, if all the elements were proved beyond a reasonable doubt for any one of

these theories, the jury could find the Appellant guilty for murder. Rabbani v. State, 847 S.W.2d

555, 558 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731

(1993). We overrule the first part of Appellant’s issue.

       Parts two, three, and four challenge the legal sufficiency of the evidence in support of

Appellant’s conviction. In a legal sufficiency review, we must consider all of the evidence in a

light most favorable to the verdict, and determine whether a reasonable minded juror could have

found the essential elements were proven beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13


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(Tex.Crim.App. 2007). We must give deference to, “‘the responsibility of the trier of fact to

fairly resolve all conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.’” Hooper, 214 S.W.3d at 13.

       When a jury returns a general verdict and the evidence is sufficient to support a guilty

finding under any of the allegations submitted, the verdict will be upheld. Swearingen v. State,

101 S.W.3d 89, 95 (Tex.Crim.App. 2003). Thus, we apply the legal sufficiency standard of

review to each theory submitted to the jury in the court’s charge. Rabbani, 847 S.W.2d at 558.

Sufficiency of the evidence should be measured by the elements of the offense as defined by the

hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997). This hypothetical charge accurately setting out the law, authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried. Id.

       In part two of Appellant’s issue, he urges that the evidence presented at trial is legally

insufficient to establish a specific intent to kill. A person commits murder if (1) he intends to

cause serious bodily injury, and (2) commits an act clearly dangerous to human life, that (3)

causes the death of an individual. TEX .PENAL CODE ANN . § 19.02(b)(2). Intent to kill is not

required to commit murder under Section 19.02(b)(2). Ramirez v. State, 229 S.W.3d 725, 729

(Tex.App.--San Antonio 2007, no pet.). Rather, there must be an intent to cause serious bodily

injury to the individual whose death results from an act clearly dangerous to human life.

Ramirez, 229 S.W.3d at 729. Serious bodily injury is bodily injury that creates a substantial risk

of death, or that causes death, serious permanent disfigurement, or protracted loss or impairment


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of the function of any bodily member or organ. Id. at 728. An act clearly dangerous to human

life is one that creates a substantial risk of death. Depauw v. State, 658 S.W.2d 628, 634

(Tex.App.--Amarillo 1983, pet. ref’d). The test for determining whether an act is clearly

dangerous to human life is an objective one. Lugo-Lugo v. State, 650 S.W.2d 72, 81

(Tex.Crim.App. 1983). We thus do not consider whether the defendant subjectively knew that

his acts were clearly dangerous to human life; rather, we focus on whether the acts themselves

were clearly dangerous to human life. Rogers v. State, No. 05-92-00507-CR, 1994 WL 121055,

at *3 (Tex.App.--Dallas Apr. 4, 1994, no pet.)(not designated for publication). To be clearly

dangerous to human life, the act committed need only threaten or risk a resulting death. Lugo-

Lugo, 650 S.W.2d at 88.

       We are persuaded that the evidence was sufficient to allow the jury to find that Appellant

committed an act clearly dangerous to human life. The record reflects that he told Ms. Ayon to

stop the car so that he and Mr. Ferrar could attack Mr. Roud, and he punched and kicked Mr.

Roud. Without question, Appellant made a conscious decision to cause serious bodily injury.

Moreover, corroborating forensic pathologist evidence reflected that Mr. Roud suffered severe

multiple blunt force trauma injuries to the head. The most common cause of a brain injury is

trauma, a violent movement of the brain inside the skull. Instances that can cause such trauma

include being struck on or about the head with an object, such as a hard object, or a foot, fist, or

hitting the head against a hard object or surface. The forensic expert further testified that the

punches and kicks Mr. Roud received to the head and body from Appellant were forceful enough

to cause serious bodily injury and death. The blunt force Mr. Roud suffered to the head caused

severe damage to the part of his brain that controlled his breathing and other vital functions,


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causing him to become comatose and ultimately die.

       Given the evidence of Mr. Roud’s injuries, we conclude that a rational trier of fact could

have concluded that Appellant intended and did cause serious bodily injury to Mr. Roud and was

therefore, guilty of committing an act clearly dangerous to human life resulting in death. Thus,

part two of Appellant’s sole issue is overruled.

       Having considered all the evidence in a light most favorable to the verdict, and

determining whether a reasonable minded juror could have found the essential elements were

proven beyond a reasonable doubt, we hold that the jury could have convicted Appellant for

murder based on the jury charge of committing an act clearly dangerous to human life that results

in death. Because the jury returned a general guilty verdict for murder, there is no need to

address the other theories of which the jury could have convicted Appellant for murder.

Rabbani, 847 S.W.2d at 558. We therefore overrule Issue One.

       We affirm the trial court’s judgment.




August 14, 2008
                                               DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., Not Participating

(Do Not Publish)




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