Opinion issued April 12, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00399-CR
                           ———————————
                     DENE RAY MCCARTER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1391752


                         MEMORANDUM OPINION

      Appellant, Dene Ray McCarter, was found guilty by a jury of the offense of

murder. The jury assessed Appellant’s punishment at 52 years in prison. On

appeal, Appellant raises two issues. He contends that the evidence was insufficient
to support the judgment of conviction, and he asserts that the trial court committed

jury charge error.

      We affirm.

                                      Background

      Appellant and Tanya began a dating relationship in 2012. In May 2013,

Tanya ended the relationship. Appellant was upset by the break up. Tanya later

stated that Appellant told her “that he wouldn’t let nobody else have me.”

      Following the break up, Appellant would come to Tanya’s apartment, but

she would not let him in her home. Tanya always kept her front door locked;

however, on the night of June 16, 2013, Tanya’s front door was unlocked. That

night, Tanya was at home with four of her children: William (age 19); Keara (age

18); Prezton (age 16); and Chyna (age 12). Also in the home were the children’s

cousin, Keiron (age 19), and William’s friends, Brandon and Conrad.

      Around 9:00 p.m., Appellant entered Tanya’s home through the unlocked

front door without knocking and without being invited. Appellant went directly to

Tanya’s bedroom where she was with her daughter, 12-year-old Chyna. Tanya

asked Appellant to step outside to talk. Tanya began to walk to the bedroom door

with Appellant behind her. Appellant pulled a knife from his pocket, grabbed

Tanya from behind using his left arm, and began stabbing her in her upper body

using his right arm.



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      Chyna screamed for help and grabbed Appellant’s right arm, using both her

hands. Appellant swung his arm to make Chyna release her grip. In the process,

Appellant cut Chyna’s arm with the knife. Tanya was also fighting back, pulling

his arm. Tanya fell to the bedroom floor and used her feet to push Appellant.

Appellant stood over Tanya and continued to stab her. Hearing Chyna screaming,

Prezton, William, and Keiron ran to the bedroom. Prezton jumped on Appellant.

They lost their balance and fell into the closet, breaking the closet door. William

and Keiron then began punching Appellant. At some point during the altercation,

Appellant stabbed Prezton three times: once in the neck and twice in the chest.

Prezton also received a cut on his hand.

      Tanya left the bedroom followed by Chyna. Appellant walked quickly from

the bedroom, left the apartment, and drove away in his car. Keara saw Appellant

put the knife in his pocket as he left.

      Prezton followed Appellant out of the apartment but collapsed outside on the

sidewalk. Prezton died at the scene from his stab wounds. Tanya was taken to the

hospital by life-flight helicopter. Although Appellant had stabbed her 27 times,

Tanya recovered from her injuries.

      The police used Appellant’s cell phone to help track him down. He was

eventually arrested when the police located him in the backseat of his brother’s car.

Once in custody, Appellant gave a video-recorded statement. In his statement,



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Appellant admitted to stabbing Tanya, but he denied stabbing anyone else.

Appellant stated that, when Prezton and the other two boys entered the bedroom,

they jumped on him. Appellant admitted that he took action to get the young men

off of him. Appellant demonstrated numerous times in the video how, to remove

Prezton and the other two young men, he made a backwards slashing motions

towards them with the hand holding the knife.

      Appellant was charged with the offense of Prezton’s murder. The jury found

Appellant guilty as charged in the indictment and assessed Appellant’s punishment

at 52 years in prison. Appellant now appeals, raising two issues.

                              Sufficiency of the Evidence

      In his first issue, Appellant asserts that the evidence is not sufficient to

support the judgment of conviction.

A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review, regardless of whether an appellant presents the challenge as a

legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 53–54

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding of

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This standard of review

is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.



                                         4
2781, 2789 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App.

2013).

      Pursuant to the Jackson standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts




                                          5
in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      In our review of the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B.    Legal Principles

      A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual or intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an

individual. See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (Vernon 2011). Based

on the indictment in this case, the State was required to prove, beyond a reasonable

doubt, either (1) that Appellant intentionally or knowingly caused Prezton’s death

by stabbing or cutting him with a knife or (2) that Appellant intended to cause

serious bodily injury to Prezton and committed an act clearly dangerous to human

life, namely, stabbing or cutting Prezton with a knife, which caused Prezton’s

death. See id.



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      A person acts intentionally when it is his conscious objective or desire to

engage in the conduct or cause the result. Id. § 6.03(a) (Vernon 2011). A person

acts knowingly with respect to the result of his conduct when he is aware that his

conduct is reasonably certain to cause the result. Id. § 6.03(b) (Vernon 2011).

Intent and knowledge are fact questions for the jury and are almost always proven

through evidence of the circumstances surrounding the crime. Manrique v. State,

994 S.W.2d 640, 649 (Tex. Crim. App. 1999). A jury may rely on collective

common sense and common knowledge when determining intent. Rodriguez v.

State, 90 S.W.3d 340, 355 (Tex. App.—El Paso 2001, pet. ref’d). Intent also may

be inferred from the circumstantial evidence surrounding the incident, which

includes acts, words, and conduct of the accused. See TEX. CODE CRIM. PROC.

ANN. art. 38.36(a) (Vernon 2005); Patrick v. State, 906 S.W.2d 481, 487 (Tex.

Crim. App. 1995).

C.    Analysis

      On appeal, Appellant asserts that the evidence was not sufficient to show

that he possessed the requisite intent to commit the offense of murder.       We

disagree.

      Appellant points out that the evidence showed that no one saw Appellant

stab Prezton. In his statement, Appellant said that he had gone to Tanya’s home to

speak to her. However, he was angry because she had ended their relationship and



                                        7
he knew that she was dating another man. Appellant stated that, once at her home,

he “snapped” and began stabbing Tanya with the knife that he had in his pocket.

Appellant told the police that he did not know that he had stabbed anyone other

than Tanya.

      In his brief, Appellant relies on evidence, including Tanya’s testimony,

indicating that Appellant had a loving and caring relationship with her children.

He also cites evidence showing that, on the night of the attack, he had

opportunities to harm Tanya’s children when he entered the apartment but did not

harm them. He points to the evidence showing that he walked passed Tanya’s

children when he entered the apartment without harming them. He also points to

the evidence showing that, although Chyna was cut on her arm when she grabbed

his arm to stop him from stabbing Tanya, Appellant did not attack Chyna. He

further points out that he did not harm William or Keiron, even though they fought

with him that night. He indicates that he showed restraint in not harming William

Keiron because he sustained a severe cut to his hand at some point during the

struggle.1

      In his brief, Appellant asserts as follows:


1
      To the extent that Appellant is suggesting that someone else had a knife that cut
      his hand that night, the evidence showed that the only knife reported being seen
      was Appellant’s knife. No other knives were recovered from the scene. In
      addition, during his statement, Appellant acknowledged that he possibly cut
      himself while he was stabbing Tanya.

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      All of the evidence offered at trial proves that the Appellant’s attack
      on Tanya . . . was vicious, brutal, and intentional—but that is all that it
      proves. There is no evidence that the Appellant had any intention to
      hurt any other person that night; and most certainly—none of Tanya’s
      children. The Appellant had every opportunity possible to maim,
      slash, and scar Tanya’s children—but he did not act on those
      opportunities. They were not his targets. He was a scorned lover
      seeking revenge on one person. Somewhere in the fight, though no
      one knows where or how—[Prezton] is stabbed, and dies soon
      thereafter.

      In his video-taped statement, Appellant stated that Prezton, William, and

Keiron had jumped on him to protect Tanya. Appellant admitted that he had made

backward slashing motions with his right hand, which Chyna testified held the

knife, to get Prezton and the other two young men off of him.                Appellant

demonstrated the backward slashing motions in the video, showing how he thrust

the knife backwards to break free. Keara, William, and Chyna testified that it was

Prezton who had jumped on Appellant. In short, the evidence showed that, while

Tanya was initially Appellant’s intended target, once Prezton jumped on him,

foiling the attack, Appellant’s attention turned to the person on his back: Prezton.

Appellant admitted he used the knife, slashing back at Prezton to remove him.

Once he broke free, Appellant quickly left the apartment and drove away.

      The assistant medical examiner, Dr. Darshan Phatak, testified that Prezton’s

autopsy showed that he had been stabbed twice in the chest and once in the throat.

Dr. Phatak stated that the stab wound to Prezton’s neck was two-and-three-quarter

inches deep. One of the stab wounds to his chest was two-and-three-quarter inches


                                          9
deep and the other was three-quarters of an inch deep. Dr. Phatak testified that the

cause of Prezton’s death was “the stab wound of the neck and to the chest.” Dr.

Phatak confirmed that Prezton’s stab wounds were consistent with being stabbed

by a knife.

      From the evidence—including his admission that he repeatedly thrust his

hand holding the knife backward to break free from Prezton and the multiple, fatal

stab wounds inflicted on Prezton—the jury could have reasonably inferred that

Appellant intended to either kill or inflict serious bodily injury on Prezton in an

effort to return to his frenzied stabbing of Tanya, out of anger at Prezton for

thwarting the stabbing, or to escape the scene. We conclude that a rational fact

finder could have found beyond a reasonable doubt that, at the time Appellant

stabbed Prezton, either (1) Appellant intentionally or knowingly caused Prezton’s

death by stabbing or cutting him with a knife, or (2) Appellant intended to cause

serious bodily injury to Prezton and committed an act clearly dangerous to human

life, namely, stabbing or cutting Prezton with a knife, which caused Prezton’s

death. See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2); see also Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Jones, 338 S.W.3d at 743. We hold that the evidence is

sufficient to support the judgment of conviction for the offense of murder.

      We overrule Appellant’s first issue.




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                                       Charge Error

      In his second issue, Appellant contends that the trial court erred by charging

the jury on the doctrine of transferred intent.

      The doctrine of transferred intent, as codified in Penal Code section 6.04,

provides, “A person is nevertheless criminally responsible for causing a result if

the only difference between what actually occurred and what he desired,

contemplated, or risked is that . . . a different person or property was injured,

harmed, or otherwise affected.” TEX. PENAL CODE ANN. § 6.04(b) (Vernon 2011).

The statutory principle of transferred intent is raised when there is evidence a

defendant with the required culpable mental state intends to injure or harm a

specific person but injures or harms a different person. Delacerda v. State, 425

S.W.3d 367, 397 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

      A classic example of the application of the transferred intent doctrine
      is “the act of firing [a gun] at an intended victim while that person is
      in a group of other persons. If the intended person is killed, the
      offense is murder. If a different person in the group is killed, the
      offense is murder pursuant to Texas Penal Code § 6.04(b)(2) . . . .”

Id. (quoting Roberts v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008)

(addressing transferred intent in capital murder case in which requisite mental state

was specific intent to kill)). Under Section 6.04(b), a defendant can be held

“criminally responsible”—that is, guilty—for the death of another even if he did

not intend to harm the victim so long as he caused the actual victim’s death while



                                           11
acting with the intent to kill a different person. Chimney v. State, 6 S.W.3d 681,

700 (Tex. App.—Waco 1999, pet. ref’d); see also TEX. PENAL CODE ANN.

§ 6.04(b).

      During trial, Appellant objected to the inclusion of the transferred-intent

instruction, arguing that there was no evidence showing that Appellant intended to

stab Tanya but missed, stabbing Prezton instead.         Appellant asserted that the

evidence showed that he was not in close proximity to Tanya when Prezton was

stabbed.     Appellant points to the evidence indicating that, as Prezton tackled

Appellant, the two of them fell into the closet “nowhere near Tanya.” Appellant

asserted that was where Prezton was stabbed. He claimed, “[T]here is no rational

or reasonable inference that could be drawn that he’s attempting to stab or cut

Tanya” at the time Prezton was stabbed.

      The State pointed out that the evidence had not shown “exactly at what

point” Prezton was stabbed. The State asserted, “[I]t’s reasonable for the jury to

infer that he was stabbed in the process of that struggle when he tackled the

defendant to the ground in the process of stabbing Tanya.” For this reason, the

State further asserted, “[T]here is sufficient evidence to warrant a transferred intent

charge to the jury.”

      The trial court overruled Appellant’s objection and instructed the jury as

follows with regard to transferred intent:



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      Regarding this instruction, the jury was instructed as follows:

      A person is nevertheless criminally responsible for causing a result if
      the only difference between what actually occurred and what he
      desired, contemplated, or risked is that a different person or property
      was injured, harmed, or otherwise affected.

      Now, if you believe from the evidence beyond a reasonable doubt that
      the defendant, Dene Ray McCarter, in Harris County, Texas, on or
      about the 16th day of June, 2013, did then and there unlawfully and
      intentionally or knowingly intended to stab or cut Tanya [], intending
      or knowing that serious bodily injury or death would occur to Tanya
      [], but instead stabbed or cut Prezton [], causing the death of Prezton
      [] with the use of a deadly weapon, namely, a knife, then you will find
      the defendant guilty as charged in the indictment.

      Here, even if we assume, without deciding, that the trial court erred by

submitting the jury instruction on transferred intent, such error does not require

reversal. When, as here, an appellant has properly preserved the claimed error by a

timely objection to the charge, the conviction will require reversal only if the error

resulted in “some harm” to the appellant. See Almanza v. State, 686 S.W.2d 157,

174 (Tex. Crim. App. 1984). The Court of Criminal Appeals has interpreted this to

mean that any harm, regardless of degree, is sufficient to require reversal. Arline v.

State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

      To determine whether Appellant suffered some harm, we consider: (1) the

entire jury charge; (2) the state of the evidence, including the contested issues and

weight of probative evidence; (3) counsel’s argument; and (4) the whole record.

Abdnor v. State, 871 S.W.2d 726, 733 (Tex. Crim. App. 1994); Almanza, 686



                                         13
S.W.2d at 171. The “some harm” test does not mandate reversal on a showing of

possible harm; rather, it requires that actual harm be established. Medina v. State,

7 S.W.3d 633, 643 (Tex. Crim. App. 1999). The appellate court reviews the

evidence and any part of the record as a whole that illuminates “the actual, not just

theoretical, harm to the accused.”       Id.; Almanza, 686 S.W.2d at 174.         “The

harmfulness of error in the jury charge should be measured, at least in part, against

the likelihood that the jury’s verdict was based on an available alternative theory of

culpability that was not affected by the erroneous portion of the charge.” Loredo v.

State, 130 S.W.3d 275, 283 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

      Here, the jury charge, when considered as a whole, weighs in favor of

finding no harm. The charge contained alternative application paragraphs to the

transferred intent instruction. Specifically, the jury was instructed that it could find

Appellant guilty of the offense of murder (1) if it found that Appellant had

intentionally or knowingly caused Prezton’s death by stabbing or cutting him with

a knife; or (2) if it found that Appellant had intended to cause serious bodily injury

to Prezton, and had caused the Prezton’s death by intentionally or knowingly

committing an act clearly dangerous to human life, namely, by stabbing or cutting

him with a knife. As discussed in our sufficiency-of-the-evidence analysis above,

the evidence was sufficient to support the judgment of conviction under either of

these alternate theories. The evidence showed (1) Appellant stabbed Tanya 27



                                          14
times; (2) Prezton stopped the attack by jumping on Appellant and the two tumbled

into the closet; (3) Appellant admitted thrusting his hand holding the knife

repeatedly back toward Prezton in a stated effort to remove Prezton; (4) Prezton

sustained three stab wounds, one to his neck and two to the chest, as well as a

incised wound to his hand; (5) the stab wounds to Prezton’s neck and chest caused

his death; and (6) Appellant quickly fled the scene.

      We agree with the State that, to the extent that the instruction on transferred

intent was erroneous, it was harmless because the jury did not need transferred

intent to render a guilty verdict in this case on the alternate theories; that is, the

verdict was supportable on the alternate theories in the charge. See id. (comparing

transferred intent instruction with law of parties instruction, and holding that

erroneous instruction on transferred intent is only harmful when transferred intent

is necessary for jury to decide the case).

      Moreover, although it discussed transferred intent during closing argument,

the State did not over-emphasize transferred intent and thoroughly discussed the

alternate theories. During its argument, the defense discussed and argued why the

evidence did not support a guilty finding under transferred intent. Given the record

as a whole, we hold that any error in submitting the transferred intent instruction

did not result in any harm to Appellant; thus, any error is harmless. See id.; see

also Almanza, 686 S.W.2d at 174.



                                             15
      We overrule Appellant’s second issue.

                                      Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Do not publish. TEX. R. APP. P. 47.2(b).




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