                                   NO. 07-00-0365-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                  SEPTEMBER 12, 2001

                           ______________________________


                     JOAQUIN VILLARREAL CASTILLO, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

              FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

               NO. 39,816-B; HONORABLE WILLIAM R. SHAVER, JUDGE

                          _______________________________

Before QUINN and REAVIS and JOHNSON, JJ.


      Upon a plea of not guilty, appellant Joaquin Villarreal Castillo was convicted by a

jury of murder and punishment was assessed at 99 years confinement. In presenting this

appeal, counsel has filed an Anders1 brief in support of a motion to withdraw. Based upon




      1
          Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
the rationale expressed herein, the motion to withdraw is granted, the appeal is abated,

and the cause is remanded to the trial court for appointment of new counsel.


       In support of her motion to withdraw, counsel has certified that she has diligently

reviewed the record and, in her opinion, the record reflects no reversible error or grounds

upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San

Antonio 1984, no pet.). Thus, she concludes the appeal is frivolous and without merit. In

compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has

discussed why, under the controlling authorities, there is no error in the court's judgment.

Counsel has also shown that she sent a copy of the brief to appellant, and informed

appellant that, in counsel's view, the appeal is without merit. In addition, counsel has

demonstrated that she notified appellant of his right to review the record and file a pro se

brief if he desired to do so. Appellant did not file a pro se brief and the State did not favor

us with a brief.


       Counsel presents three arguable points in the Anders brief, to wit: (1) the evidence

is legally insufficient to support appellant’s conviction; (2) the evidence is factually

insufficient; and (3) the trial court erred in instructing the jury on the concept of transferred

intent in the jury charge during the guilt/innocence phase of the trial. Counsel then

presents argument supported by authorities and record references establishing that no

reversible error is presented.

                                               2
       The record establishes that on the night of June 18, 1998, Matt Coots and some

friends were visiting on his front porch. A speeding car prompted Coots to yell at the driver

to slow down. Coots and his friends moved from the porch toward the street. Kenneth

Malone was sitting on the hood of a car with his fiancee positioned in front of him. A

second car driven by appellant also sped by prompting Coots to yell at appellant to slow

down. In response, appellant leaned out the car window holding a gun and fired a shot

that struck Malone in the head causing his death. An autopsy confirmed that Malone died

from a circular bullet wound on his right eyebrow.


       Brandy Wagner testified that appellant called her just hours after the shooting

claiming he shot someone in the forehead after being shouted at to slow down. She did

not take appellant seriously until she heard the crime reported on the news. She sought

out an officer and informed him that she had information about the shooting. Kim

Phonsnasinh, a passenger in appellant’s car on the night of the shooting, testified that

appellant became upset when Coots yelled at him to slow down and confirmed that he

leaned out the window and shot a small handgun. Mary Lomeli, also a passenger in

appellant’s car, likewise testified that he shot out the window after being told to slow down.


       The defense attempted to show that appellant did not aim the gun at anyone and

thus, the evidence was insufficient to establish that he intentionally or knowingly caused

Malone’s death. However, a person acts intentionally or knowingly with respect to a result

of his conduct when he is aware that his conduct is reasonably certain to cause the result.

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Tex. Pen. Code Ann. § 6.03(a) and (b) (Vernon 1994) (defining culpable mental states of

intentionally and knowingly). Firing a weapon toward a group of people supports the

rational conclusion that appellant was aware that his conduct was reasonably certain to

result in death. Medina v. State, 7 S.W.3d 633, 636-37 (Tex.Cr.App. 1999).


      Viewing the evidence presented in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of murder beyond a

reasonable doubt.2 See Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App. 1991),

overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000).

In conducting a factual sufficiency review, we ask whether a neutral review of all the

evidence, both for and against the finding, demonstrates that the proof of guilt is so

obviously weak as to undermine confidence in the fact finder’s determination, or the proof

of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.

Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000) (adopting complete civil factual

sufficiency formulation); see also King v. State, 29 S.W.3d 556, 563 (Tex.Cr.App. 2000).

Eye witnesses testified that appellant fired a shot out his car window when Coots shouted

at him to slow down, resulting in Malone’s death. Also, Brandy Wagner testified that

appellant telephoned her and told her he had shot someone in response to being told to

slow down. The evidence is legally and factually sufficient to establish that appellant


      2
          Tex. Pen. Code Ann. § 19.02(b) (Vernon 1994).

                                            4
caused Malone’s death. Thus, we agree with counsel that no reversible error is presented

on the basis of insufficient evidence.


       Counsel’s third arguable contention is that the trial court erred in instructing the jury

on transferred intent. The charge provided an abstract instruction on the law of transferred

intent in accordance with section 6.04(b)(2) of the Texas Penal Code and then applied the

law to the facts as follows:


       if you believe from the evidence beyond a reasonable doubt, that the
       defendant . . . intending to cause the death of Matt Coots by shooting him
       with a firearm, did then and there cause the death of . . . Kenneth James
       Malone, by shooting [him] with a firearm, you will find the defendant guilty of
       the offense of murder and so say by your verdict.


After the charge was examined by trial counsel he stated it was acceptable. When no

objection is made to the charge, only egregious error may be reviewed on appeal.

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1985) (on reh’g).


       The evidence established that after Coots shouted at appellant to slow down,

appellant responded by firing his gun out the car window.              Under the doctrine of

transferred intent, appellant’s intent to harm Coots transferred to Malone and he was just

as guilty as if he had shot Coots. Martinez v. State, 844 S.W.2d 279, 282 (Tex.App.–San

Antonio 1992, pet. ref’d), citing Garrett v. State, 642 S.W.2d 779, 781 (Tex.Cr.App. 1982).

Although the State did not allege transferred intent in the indictment, the inclusion of the

instruction in the charge is not considered egregious harm. See In Re K.W.G., 953

                                               5
S.W.2d 483, 488 (Tex.App.–Texarkana 1997, pet. denied). We agree with counsel that

no reversible error is presented in the court’s charge.


       We are required to make an independent examination of the entire record to

determine whether there are any arguable grounds that might support the appeal. Penson

v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d

503, 511 (Tex.Cr.App. 1991). On October 29, 1998, appellant was indicted for a murder

allegedly committed on June 18, 1998. Prior to and after the appointment of new counsel,

appellant filed numerous pro se motions. On July 27, 1999, he filed a “Petition For

Release Because of Delay” as well as a “Motion for Fast and Speedy Trial,” contending

that more than one year had elapsed since he was first taken into custody and the State

had not proceeded to trial. On April 27, 2000, appellant filed a pro se motion to dismiss

asserting that 21 months had passed since he was arrested and that the State had failed

to proceed to trial in violation of his Sixth Amendment right and Article I, Section 10 of the

Texas Constitution.3 The record does not indicate that any motions for continuance were

sought. Our independent review of the record reveals that appellant may have an

arguable contention regarding his claim that he was denied his right to a speedy trial.


       The right to a speedy trial is guaranteed by the Sixth Amendment of the United

States Constitution and applies to the states through the Fourteenth Amendment. See


       3
        Although appellant filed numerous pro se documents, he was represented by four
different appointed counsel during the course of the underlying proceeding.

                                              6
Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17 (1972).

Additionally, Article I, Section 10 of the Texas Constitution and article 1.05 of the Texas

Code of Criminal Procedure Annotated (Vernon 1977) guarantee a speedy trial. In

determining whether an accused was denied his right to a speedy trial, an appellate court

is required to balance four factors, to-wit: 1) the length of the delay; 2) reason for the

delay; 3) assertion of the right; and 4) prejudice to the accused, to determine whether a

defendant’s right to a speedy trial has been violated. Id. at 530-32; State v. Munoz, 991

S.W.2d 818, 821 (Tex.Cr.App. 1999). No single factor is a “necessary or sufficient

condition to the finding” of a speedy trial violation, and these factors must be considered

in conjunction with other relevant circumstances. Munoz, 991 S.W.2d at 821, citing

Barker, 407 U.S. at 533.


       Having found an arguable ground for appeal, this Court must ensure appellant’s

right to counsel by permitting appellant’s present counsel to withdraw and requiring the

appointment of new counsel to rebrief whether a 21-month delay is sufficient to trigger a

speedy trial analysis under Harris v. State, 827 S.W.2d 949, 956 (Tex.Cr.App. 1992), cert.

denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992). Counsel is also directed

to raise any other grounds he believes might support the appeal. Stafford v. State, 813

S.W.2d 503, 510 (Tex.Cr.App. 1991).


       To secure the appointment of new counsel, we now abate the appeal and remand

the cause to the trial court. Duncan v. Evans, 653 S.W.2d 38, 40 (Tex.Cr.App. 1983).

                                            7
Upon remand, the trial court shall appoint new counsel to brief the ground we deem

arguable, as well as any other grounds that might support the appeal. The trial court shall

direct counsel to file appellant’s brief within 30 days after his appointment and shall furnish

the name, address, telephone number, and state bar number of new counsel to the Clerk

of this Court immediately after the appointment is ordered.


       It is so ordered.


                                                   Per Curiam


Do not publish.




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