








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1054-07


SHELDON ROBERTS, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS

DALLAS COUNTY



 Keller, P.J., filed a dissenting opinion.




 From a sufficiency of the evidence perspective, the correct question is not whether
appellant's culpable mental state with respect to Virginia Ramirez can be transferred to her unborn
child; the correct question is whether appellant's culpable mental state with respect to anyone can
be transferred to Ramirez's unborn child.  The answer to the latter question is "yes" because
appellant's culpable mental state can be transferred to the unborn child from two-year-old Patricia. 

	Though inartfully phrased and argued, the pro se appellant's third ground for review appears
to contain two complaints: (1) about the use of a transferred intent instruction in the the jury charge
and (2) about the legal sufficiency of the evidence under a transferred intent theory.  Appointed
counsel and the Court have chosen to focus on the legal sufficiency complaint, but both fail to
sufficiently appreciate a complication created by legal sufficiency law with respect to the transferred
intent question.  The jury charge in this case contained an abstract instruction explaining the law of
transferred intent.  The application portion of the charge authorized the jury to transfer appellant's
culpable mental state from Ramirez to her unborn child while also using that same culpable mental
state for Ramirez's own death.  If the complaint we are addressing were one of jury charge error,
then the question would be the continuing vitality of the holding in Norris v. State, (1) which would
permit the prosecution to use this single culpable mental state for both of these purposes. (2) 
	But in a legal sufficiency review, we focus not on the charge that was actually given, but on
"the elements of the offense as defined by the hypothetically correct jury charge for the case." (3)  The
hypothetically correct jury charge includes general criminal liability elements that need not be pled
in the indictment, such as the law of transferred intent. (4)  Though there is a potential problem with
considering a non-indictment theory of liability that is completely absent from the jury charge, any
theory that is encompassed at least by the abstract portion of the charge must be considered in a
sufficiency review, even if it is not contained in the application paragraph. (5)  Tracking the relevant
language of the transferred intent statute, the abstract portion of the jury charge in this case provided,
"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 was
injured, harmed, or otherwise affected." (6)  The identity of the actual victim (the culpable-mental-state
transferee) is required for notice and must named in the indictment, but the "desired, contemplated,
or risked" victim (the culpable-mental-state transferor) can be any person - including, in this case,
Patricia, Ramirez's two-year-old daughter who survived the incident.  Of course, the evidence must
still be sufficient to show that appellant possessed the required culpable mental state with respect
to Patricia, and to that question I now turn. 
	Eight individuals (as defined by law) (7) were in the apartment before the assailants entered. 
Heath Laury, Jessica Thompson, and Bradlee Bowie were in the living room.  Royale Bolden and
Corey Smith were in the front bedroom.  Ramirez (pregnant with her unborn child) and two-year-old
Patricia were in the back bedroom.  Each bedroom had a door that opened out into the living area. 
After the assailants entered the apartment, Bowie fled to the back bedroom because he knew there
would be an open window.  Before exiting through that window, he noticed that Ramirez and
Patricia were in the room.   Bowie then ran home and had no further knowledge of what happened
in the apartment.  No one, other than the assailants, witnessed Laury and Thompson's movements
in the house during the encounter, but their bodies were later discovered in the back bedroom, so an
inference could be drawn that they fled there.  In the front bedroom, Bolden and Smith hid in the
closet.  They heard gunshots during the entire encounter.  Bolden heard Ramirez enter the front
bedroom and scream, "Not my baby.  Not my baby," followed by the last two shots.  After the
assailants left, Bolden left the closet and saw Ramirez lying on the floor, dead, with Patricia lying
on her chest and in her arms.  According to testimony based upon forensic evidence, Ramirez was
behind the bedroom door, probably trying to close it, and turning away from it, when she was shot. 
Five bullet holes were found in the door and three bullet wounds were found in Ramirez's body. 
Ramirez suffered wounds to the head, the right shoulder, and the left posterior lateral thigh. 
Miraculously, though she was shaken and upset, Patricia was physically unharmed.
	A jury could have rationally believed that Ramirez and Patricia were together at all times,
and that in fact, Ramirez carried Patricia from the back bedroom to the front bedroom in an attempt
to escape their attackers.  A jury could likewise rationally believe that the assailants saw both
Ramirez and Patricia in the back bedroom or in the living area leading to the front bedroom, and the
jury could further believe that the assailants pursued mother and child and shot at them both as
Ramirez was closing the door.  Ramirez's scream, "Not my baby," referred most obviously to her
two-year-old child and indicated Ramirez's own belief that the assailants were attacking, or at least
endangering, not only herself, but Patricia as well.  That the assailants continued to fire after hearing
Ramirez scream a reference to her child further indicates that they either intended to kill the child
along with Ramirez, or they were reasonably certain (8) their actions would cause that result and they
simply did not care.
	Because the evidence was sufficient to show that the assailants possessed a required culpable
mental state with respect to Patricia, that culpable mental state could transfer from Patricia, who
survived, to the unborn child, who did not.  We need not address the continuing vitality of Norris
to resolve the evidentiary sufficiency claim. 
	With these comments, I respectfully dissent.
Filed: December 17, 2008
Publish    









1.   902 S.W.2d 428 (Tex. Crim. App. 1995). 
2.   See id.
3.   Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
4.   Id. at 239-40.
5.   See Vega v. State, 2008 Tex. Crim. App. LEXIS 1179, *8 (October 1)("it is irrelevant in
a sufficiency review that the application paragraph of the charge actually given erroneously applied
only the law of parties under § 7.02(a)(2)"); Grissam v. State, 267 S.W.3d 39 (Tex. Crim. App.
2008)(sufficiency of the evidence analysis as to both theories of burglary should have been
conducted where both were contained in the jury charge, though only one was in the application
paragraph).
6.   See Tex. Penal Code §6.04(b).
7.   See id., §1.07(a)(26).
8.   "Knowledge" is a sufficient culpable mental state for capital murder involving the
murder of more than one person.  See id., §§19.03(a)(7)("murders more than one person"),
19.02(b)(1)("intentionally or knowingly causes the death of an individual")(emphasis added),
6.03(b)("knowingly" defined as "aware that . . . conduct is reasonably certain" to cause a
prohibited result).  
