                                     NO. 07-01-061-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                 FEBRUARY 19, 2002
                           ______________________________

                                      ROY CASTILLO,

                                                           Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

              FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                    NO. 40,537-B; HON. JOHN BOARD, PRESIDING
                         _______________________________

Before Boyd, C.J., Quinn and Johnson, J.J.

       Roy Castillo (appellant) was convicted by a jury of murder. Through seven issues,

he alleges that 1) the jury charge was improper, 2) by omitting an instruction on transferred

intent viz the lesser included offense of manslaughter, the trial court commented on the

weight of the evidence, 3) the evidence was legally and factually insufficient, and 4) the trial

court erred in admitting an autopsy report since it was hearsay. We affirm the judgment.
                                       Background

       After being involved in a fight at a local pool hall and its adjacent parking lot,

appellant and a friend drove to appellant’s home to obtain firearms, namely a pistol-grip

shotgun and a 9mm pistol. Then they returned, with the weapons, to the scene of the fight.

Upon arriving at same, the two exited their vehicle and began shooting at a black car.

Inside the car sat various people including Ambrose Bustos (Bustos), one of the

participants in the earlier fight, and Julian Moreno (Moreno). The latter was struck in the

head by a bullet and killed.

       When appellant later discovered that someone had died as a result of the shooting,

he threw the shotgun, the pistol, and its ammunition clip in T-Anchor Lake. In his

confession to police, appellant admitted firing his pistol at the car and throwing the

weapons in the lake. The weapons were later recovered from the lake.

       The State indicted appellant for murdering Moreno. One of its theories at trial

involved the concept of transferred intent. That is, the State attempted to show that though

appellant and his friend intended to kill Bustos, they succeeded in murdering Moreno.

When both litigants rested their respective cases, the court charged the jury. Included

therein were paragraphs informing the jury that they could convict appellant for murder if

they found he intentionally or knowingly caused the death of Moreno or if he intended to

kill Bustos but actually killed Moreno. So too did it instruct the jury on the lesser included

offense of manslaughter. The jury eventually found appellant guilty of murder.




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                          Issue One – Improper Jury Charge

       Appellant initially contends that the trial court’s instruction concerning transferred

intent was improper. This is allegedly so for three reasons. First, the theory was not

mentioned in the indictment. Second, the trial court was obligated to inform the jury that

it “must find that any actions taken by [him] to show transferred intent must be done

knowingly and intentionally.” And, third, while the instruction described the deadly weapon

with which appellant intended to kill Bustos, it failed to describe the particular deadly

weapon which resulted in Moreno’s death. We overrule the contentions.

       As to the need to plead transferred intent in the indictment as a prerequisite to

mentioning it in the charge, we cite Dowden v. State, 758 S.W.2d 264 (Tex. Crim. App.

1988) and In re K.W.G., 953 S.W.2d 483 (Tex. App.–Texarkana 1997, pet. denied). Each

holds that the theory may be incorporated in the charge though omitted from the

indictment. Dowden v. State, 758 S.W.2d at 274; In re K.W.G., 953 S.W.2d at 488.

       As to the remaining contentions, we feel the need to quote pertinent aspects of the

indictment and charge. Through the former, the State accused appellant of “intentionally

and knowingly caus[ing] the death of . . . Julian Moreno, by shooting the said . . . Moreno

with a deadly weapon, . . . a firearm.” Through the latter, i.e. the charge, the court

informed the jury that:

       [1] [n]ow, if you find from the evidence beyond a reasonable doubt that on
       or about the 24th day of February, 1999, in Potter County, Texas, the
       Defendant, ROY CASTILLO, did then and there intentionally or knowingly
       cause the death of an individual, namely Julian Moreno, by shooting the said
       Julian Moreno with a deadly weapon, to-wit: a firearm, you will find the
       defendant guilty of murder. . . [;]




                                             3
         [2] [y]ou are further instructed that a person is 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 was injured
         harmed or otherwise affected. . .[; and]

         [3] [n]ow bearing in mind the foregoing instructions, if you believe from the
         evidence beyond a reasonable doubt, that the defendant, ROY CASTILLO,
         on or about the 24th day of February, 1999, in the County of Potter and State
         of Texas, intending to cause the death of an individual, Ambrose Leon
         Bustos, by shooting the said Ambrose Leon Bustos with a deadly weapon,
         to-wit: a firearm, did then and there cause the death of an individual, namely,
         Julian Moreno, by shooting the said Julian Moreno with a deadly weapon,
         you will find the defendant guilty of the offense of murder and so say by your
         verdict.

With these provisions in mind, we turn to the arguments.

         Regarding the supposed need to instruct the jury that the “acts taken by appellant

to show transferred intent must be done knowingly or intentionally,” we see two possible

interpretations of the appellant’s contention.1 The first is that the court must inform the jury

that it can convict only if the actions directed towards the individual whom appellant

actually wanted to kill were taken with the requisite mens rea. Here, the trial court did just

that. It informed the jurors that they could convict only if appellant caused the death of

Moreno while “intending to cause the death of an individual, Ambrose Leon Bustos . . . .”2

 (Emphasis added).

         The second interpretation of appellant’s argument involves the supposed need to

state that appellant acted with a particular mens rea towards Moreno as he caused the


         1
           W hat appellant means when alluding to the “actions taken by Appellant to show transferred
intent” is unc lear. T hus , we are left to interpret the nature of his argum ent.

         2
          By using the word “intending” in the application paragraph and m entioning no other mens rea, it could
be said that the trial court enhanced the burden of the State or restricted the jury’s ability to convict for m urder.
For instan ce, the om ission den ied the factfinder the oppo rtunity to co nvict if ap pellant acted “know ingly.” And,
such a mind set is sufficient to secure a conviction fo r m urde r. T EX . P EN . C O D E . A N N . §19.02(b)(1)(Vernon
1994) (stating that a p erson c om m its murder if he intentionally or know ingly causes the death of an individual).

                                                          4
death of Moreno while actually trying to kill Bustos. We find this proposition meritless

based upon a plain reading of §6.04(b) of the Penal Code. Though euphemistically called

“transferred intent,” the concept espoused in that section of the Code does not deal with

intent or any other mens rea. Rather, it depicts an effort by the legislature to criminalize

an act which resulted in injury or harm to someone other than the person to whom the

injury or harm was actually directed. As much can be garnered from the wording of the

statute. In stating that one “is nevertheless criminally responsible for causing a result if

the only difference between what actually occurred and what he [intended, knew or risked]

is that a different person was” harmed or injured, the legislature was addressing the results

of the conduct. TEX . PEN . CODE ANN . §6.04 (b)(2) (emphasis added). That is, it was telling

the public that it did not matter who was hurt or affected by the act. As long as the

accused intended, knew or risked hurting or affecting a particular person and someone was

affected, the accused would be culpable for the crime he tried to commit. So, acting with

a particular mens rea viz-a-viz the actual victim was and is unimportant, and such a mens

rea need not be alleged nor proved. Indeed, if this were not so, and if the State were

required to allege and prove that the accused acted with a particular mens rea towards the

ultimate victim, then their concept of transferred intent would be superfluous. 3

        Finally, we address appellant’s contention about describing the nature of the deadly

weapon used to cause the death of Moreno. He believes that it was not enough to simply

allude to it as a deadly weapon; this was so despite the trial court’s description of it as a



        3
           For instance, if the State was obligated to prove that appellant intended to cause the death of Moreno
wh ile intending to kill Bustos, there would be no need to eve n refer to B usto s. Inten ding to cause the death
of M oren o an d ca using it wou ld be e nou gh to warrant c onviction.

                                                       5
“firearm” when alluding to the deadly weapon with which appellant intended to kill Bustos.

This argument also fails for reasons similar to those mentioned in the immediately

preceding paragraph. Again, the gist of §6.04(b) involves criminalizing conduct resulting

in someone’s injury or harm, irrespective of whether the person harmed or injured was the

intended victim. And, in telling the jury what they must find to convict when §6.04(b) is

involved, the trial court need only allude to the actual victim as the person who suffered

harm or injury meant for another. The expressed wording of §6.04(b) requires nothing

more when referring to the actual victim. So, the trial court at bar was not obligated to tell

the jury that to convict appellant, it had to find that he used a “firearm” to kill Moreno; this

is so since the nature of the deadly weapon had already been described in referring to the

acts of appellant which were directed at Bustos.

                         Issue Two – Comment on the Evidence

       Next, appellant alleges that the trial court failed to incorporate the concept of

transferred intent into its instruction on the lesser included offense of manslaughter. And,

because it did not, the instruction given was a comment on the evidence. We disagree and

overrule the point.

       First, it has been held that the failure to charge the jury on transferred intent when

submitting an instruction on manslaughter is not a comment on the weight of the evidence.

Juarez v. State, 886 S.W.2d 511, 515 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d).

Second, to the extent that the case cited by appellant, Garrett v. State, 624 S.W.2d 953

(Tex. App.–San Antonio 1981), rev’d on other grounds, 642 S.W.2d 779 (Tex. Crim. App.

1982), suggests otherwise, we note that the Garrett holding was dependent upon the



                                               6
nature of the charge given by the trial court. There, “the State’s theory [regarding

manslaughter] relied upon transferred intent.” Id. at 957. Thus, the appellate court

concluded that the jury had to be told about that issue via the charge.

        Here, reference to manslaughter in the charge did not implicate transferred intent.

That is, the jury was not told that it could find appellant guilty of same, if it concluded that

his reckless conduct was directed at one person but resulted in injuring someone else.4

Instead, the trial court instructed that appellant could be found guilty of manslaughter if

appellant recklessly discharged a firearm “in the direction of” the particular decedent and

the discharging of the weapon caused the death of the decedent. In the trial court’s

focusing upon appellant’s alleged reckless discharge of the gun towards the decedent as

opposed to some third party whom appellant missed, there was no need to inform the jury

that appellant could be held responsible for the crime even though he missed this

unmentioned third party and struck the decedent. Simply put, the circumstances described

in the application paragraph at issue had nothing to do with transferred intent. So, Garrett

was and is inapposite.

                  Issues Four, Five, and Six – Sufficiency of the Evidence

        Appellant next challenges the legal and factual sufficiency of the evidence

supporting the verdict. He claims that the evidence was insufficient to demonstrate that

he intentionally and knowingly 1) shot at Bustos, 2) tried to cause the death of Bustos, and

3) caused the death of Moreno. We overrule the contentions.




        4
         Manslaughter implicates the mens rea of rec kles sne ss. See T EX . P EN . C ODE A N N . §19.04 (Vernon
1994) (statin g that a person com m its m anslaughte r if he re ck lessly causes th e death of an individual) .

                                                       7
        Standard of Review

        The standards of review applicable to questions of legal and factual sufficiency are

well-settled and need no explanation. We find it adequate to merely cite the parties to King

v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) and Clewis v. State, 922 S.W.2d 126

(Tex. Crim. App. 1996).5

        Application of Standard

        A person commits murder if he intentionally or knowingly causes the death of an

individual. TEX . PEN . CODE. ANN . §19.02(b)(1)(Vernon 1994). Furthermore, 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. TEX . PEN . CODE. ANN . §6.03(a) and (b)

(defining culpable mental states of intentionally and knowingly). Yet, as alluded to in our

discussion of the preceding issue, one may still be held liable for murder if he kills

someone other than the person he intended to kill. See TEX . PEN . CODE ANN . §6.04(b)(2)

(discussing this concept). In that regard, all the State need prove is that the only difference

between what actually occurred and what he intended or knew would occur is that he

caused the death of someone other than the one he tried to kill. Id. With this said, we now

peruse the evidence before us.

        Of record, we find evidence illustrating that: 1) appellant and Moreno were both

present at the bar the night of February 24, 1999; 2) each was there with a group of friends



        5
          W e would note, however, that in urging legal insufficiency, the appellant should focus upon the
evidence appearing of reco rd and explain why it was not enough to support the verdict. This is so because
we cannot reverse unless we explain why that evidence was deficient. In the interest of T.M., 33 S.W .3d 341,
349 (Tex. App.–Am arillo 2000, no pet.). It is not enough for us to merely conclude that the evidence was
wanting. So, an appellant should do more than simply allude to the evidence that favors an acq uittal. Rather,
he s hou ld und ertak e to explain why the evidence p urpo rting to fa vor conviction does not.

                                                      8
and/or family members; 3) Junior, one of appellant’s friends, was hit in the head with a

billiard ball by Bustos, one of the individuals in Moreno’s group; 4) the fight in the pool hall

spilled out into the parking lot, where a number of vehicles were damaged, 5) appellant’s

car was damaged by Bustos; 6) appellant left the bar with Junior and proceeded to

appellant’s house; 7) appellant retrieved a shotgun and pistol from underneath his bed and

gave the shotgun to Junior; 8) appellant and Junior then returned to the bar; 9) the

appellant recalled seeing “people around a black car;” 10) appellant drove around to the

back of the establishment; 11) at the time, the victim and Bustos were in a black car along

with four other people; 12) when the appellant drove up, people were attempting to enter

the black car; 13) the appellant and Junior exited their vehicle, aimed their weapons at the

black car, and began shooting; 14) after discharging the weapons, the two drove back to

appellant’s house and hid the guns; 15) that night Moreno died of a bullet wound to the

head; 16) the bullet removed from his head was of the same caliber as the ammunition

fired from appellant’s pistol; 17) Bustos, who allegedly hit Junior with a billiard ball, had

been sitting in the passenger seat of the car at the time of the shooting; 18) as a result of

the shooting, the window where Bustos had been sitting was shot out; 19) Bustos’ window

was the only window shot out; 20) the black car did not have tinted windows; 21) when the

shooting began at least one door of the black car was open; 22) the interior light of the car

had also been in working condition that night; 23) the parking lot was well lit at the time of

the shooting; 24) Bustos saw the shooters kneeling and aiming at the car; 25) when

appellant discovered that someone had died as a result of the shooting he threw the

weapons in T-Anchor Lake; and 26) appellant later confessed to shooting at the car in the

parking lot and throwing the weapons in the lake. From this, a jury could conclude, beyond

                                               9
reasonable doubt, that appellant caused the death of Julian Moreno, although he intended

to cause the death of Ambrose Leon Bustos. That is, a rationale jury could have

reasonably inferred that appellant intended to shoot and kill Bustos in retaliation for the

earlier happenings, saw him in the car, fired, and instead killed Moreno. Thus, appellant’s

conviction for murder is supported by legally sufficient evidence.

       That the evidence of guilt was not free of contradiction, that appellant denied

intending to kill anyone, that he denied knowing anyone was in the black car, and that the

credibility of witnesses may have been subject to question does not require us to conclude

that the verdict was factually insupportable. Those circumstances merely create issues for

the jury to resolve. And, based upon our review of the entire record, we cannot say that the

verdict was clearly wrong or manifestly unjust. Thus, the conviction also enjoyed the

support of factually sufficient evidence.

                   Issue Seven – Admission of the Autopsy Report

       Lastly, appellant claims that the trial court erred in admitting an autopsy report into

evidence. It allegedly did so because the report was hearsay and the State failed to lay

a proper predicate for its admission as a business record under Texas Rule of Evidence

803(6). We overrule the point.

       Irrespective of whether the State presented evidence satisfying the elements for

admitting a document as a business record, the trial court had before it an autopsy report.

This is of significance for such a report has been held to be, as a matter of law, a public

record. Butler v. State, 872 S.W.2d 227, 237-38 (Tex. Crim. App. 1994), cert. denied, 513

U.S. 1157, 130 L.Ed. 2d 1079, 115 S.Ct. 1115 (1995). And, as a public record, it is

admissible as an exception to the hearsay rule. Id. at 238. So, because the standard of

                                             10
review is one of abused discretion, Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App.

2000), and the report was admissible irrespective of Rule 803(6), we conclude that the trial

court did not err in admitting it. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.

App. 1990) (holding that an appellate court may affirm a trial court’s decision to admit

evidence for reasons other than those mentioned to the court).

       Accordingly, we affirm the judgment of the trial court.



                                                                 Brian Quinn
                                                                    Justice
Publish.




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