                      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

      P RICE , J., filed a concurring opinion in which W OMACK, J., joined.

                               CONCURRING OPINION

      In Lawrence v. State,1 we made it clear that, in order to obtain a conviction under the

multiple-victims theory of capital murder where the victims are a mother and her unborn

child, a defendant must have specifically intended to cause the deaths of both mother and

child. We said:

             Under the Texas Penal Code, a person commits capital murder if he
      intentionally or knowingly causes the death of “more than one person . . .


      1

       240 S.W.3d 912 (Tex. Crim. App. 2007).
                                                                                        Roberts — 2


       during the same transaction.” A “person” includes an “individual.” The Penal
       Code in turn defines an “individual” as “a human being who is alive, including
       an unborn child at every stage of gestation from fertilization to birth.” It
       follows from these provisions that a person who intentionally or knowingly
       causes the death of a woman and her unborn child, at any stage of gestation,
       commits capital murder.2

The question before us in this case is whether it is legally permissible to say that the appellant

intentionally or knowingly killed Ramirez’s gestating baby when, so far as the evidence

reveals, he had no knowledge that she was even pregnant.

       In Norris v. State,3 the Court expressly held that the statutory doctrine of transferred

intent may be applied to obtain a conviction under the multiple-victims theory of capital

murder.4 Presumably this means that the State was entitled to rely upon Section 6.04(b)(2)

       2

        Id. at 915 (footnotes omitted).      See T EX. P ENAL C ODE §§ 1.07(a)(26), 1.07(a)(38),
19.02(b)(1) and 19.03(a)(7)(A).
       3

        902 S.W.2d 428 (Tex. Crim. App. 1995).
       4

        Immediately after acknowledging that the multiple-victim theory of capital murder requires
proof of “two or more intentional or knowing murders[,]” the Court in Norris continued:

               The plain language of Section 6.04(b)(2) [of the Penal Code—our transferred
       intent provision] evinces a legislative policy to make a defendant, who, like appellant,
       acts with specific intent to kill, criminally responsible for the consequences of his
       voluntary acts. And, this Court has held Section 6.04(b)(2) can be applied to
       establish a Section 19.02(a)(1) [now 19.02(b)(1)] murder. See Aguirre v. State, 732
       S.W.2d 320, 326 (Tex. Crim. App. 1982) (op. on reh’g). Therefore, since Section
       19.03(a)(6)(A) [now Section 19.03(a)(7)(A)] incorporates two or more Section
       19.02(a)(1) murders and Section 6.04(b)(2) can be used to establish a Section
       19.02(a)(1) murder, . . . we hold Section 6.04(b)(2) applies to a Section
       19.03(a)(6)(A) capital murder prosecution.

Id. at 437-8. In essence, the Court thus opened the door to allow the State to apply the law of
transferred intent to extract two murders from a single act that caused the death of both the intended
                                                                                   Roberts — 3


of the Penal Code to convict the appellant in this case.5 Section 6.04(b)(2) reads:

       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

Nothing in the plain language of this provision requires the State to prove that the appellant

was aware of or even knew of the existence of the “different person” whose injury he may

inadvertently have caused while intending to injure someone else. He may be prosecuted

under a theory of transferred intent whether he knew of the existence of the person he actually

harmed or not, so long as he had the requisite intent to harm someone. Having intended to

cause the death of Ramirez, consistent with our holding in Norris, the appellant can be found

liable for murder for having caused the death or her unborn child, regardless of whether he

was aware that the child even existed. Liable in this way for both the murder of Ramirez and

the murder of her unborn child, the appellant can be found guilty of multiple-victims capital

murder—again, at least under our express holding in Norris.

       I do not agree that a defendant who intentionally or knowingly causes the death of his

intended victim should also be liable for the murder of another victim whom, by the same act,

he also killed, albeit inadvertently. I do not think that the plain language of Section


victim and an unintended victim, and thereby sustain a conviction for capital murder under the
multiple-victims theory of that offense.
       5

       T EX. P ENAL C ODE § 6.04(b)(2).
       6

       Id.
                                                                                        Roberts — 4


6.04(b)(2) accommodates the double use of a single specific intent to elevate two homicidal

results, flowing from a single act, to the level of full-blown murder.7 Accordingly, I would

likely have joined that part of Judge Clinton’s concurring opinion in which he said:

       Where the meaning of a statutory provision is plain on its face, we are obliged
       to effectuate that meaning unless to do so leads to absurd results. Boykin v.
       State, 818 S.W.2d 782, at 785 (Tex.Cr.App.l991). On its face § 6.04(b)
       applies only when there is a “difference between what actually occurred and
       what [the accused] desired, contemplated or risked[.]” It deems an accused
       “criminally responsible” to a level commensurate with the offense he “desired,
       contemplated or risked” whenever “the only difference between” that offense
       and “what actually occurred” is that “a different offense was committed” or “a
       different person or property was injured, harmed, or otherwise affected.”
       Section 6.04(b) does not provide, however, that if “what actually occurred” was
       both the offense “desired, contemplated, or risked” and an additional offense
       that was not specifically intended, then the State may prosecute the accused for
       the unintended offense at the same level of criminal responsibility at which it
       will also prosecute him for “the desired, contemplated or risked” offense. The
       provision does not speak of “additional” offenses, but of “different” ones.

              Nor does this plain reading of § 6.04(b) reap absurd results. The
       Legislature may well have intended that in a multiple homicide situation, where
       the killer only intentionally or knowingly caused the death of one of his
       victims, the killer should be prosecuted dually for murder and some other lesser
       homicide, but not for capital murder. Surely it is not hard to credit a legislative
       judgment that such a scenario does not call for the most extreme remedy at its
       disposal.8

       7

         When an actor intentionally causes the death of his intended victim and, by the same act,
recklessly or negligently causes the death of another, unintended victim, then as far as I am
concerned he may be prosecuted both for the murder of his intended victim and the manslaughter or
negligent homicide of his unintended victim. T EXAS P ENAL C ODE §§ 19.04 and 19.05. But, for
reasons given in the text immediately post, I do not believe a plain reading of the transferred intent
statute allows for the actor’s prosecution for two full-blown murders under Section 19.02(b)(1) of
the Penal Code, much less for capital murder under Section 19.03(a)(7)(A).
       8

        Norris v. State, supra at 450-51 (Clinton, J., concurring).
                                                                                        Roberts — 5


For these reasons I disagree with the Court’s holding in Norris.

       To my way of thinking, the Norris holding was “poorly reasoned” and “flawed from

the outset.” 9 True, “[t]he interests underlying the doctrine of stare decisis are at their height

for judicial interpretations of legislative enactments upon which parties rely for guidance in

attempting to conform to those legislative enactments.”10 However, my research does not

reveal a single case, from the time we first decided Norris in 1995 to the present, in which the

State has ever invoked Norris to uphold an otherwise unsustainable murder conviction, much

less a capital murder conviction. I perceive no reliance interest weighty enough as to justify

a conclusion that rote consistency should overcome right interpretation.11 I therefore vote to

overrule Norris.

       With these additional observations, I join the Court’s opinion.




Filed:          December 17, 2008
Publish


       9

        See, e.g., Paulson v. State, 28 S.W.3d 570, 571-72 (Tex. Crim. App. 2000) (“if we conclude
that one of our previous decisions was poorly reasoned or is unworkable, we do not achieve [the]
goals [of stare decisis] by continuing to follow it”); Hammock v. State, 46 S.W.3d 889, 893 (Tex.
Crim. App. 2001) (one factor favoring overruling precedent is “when the original rule of law is
flawed from the outset”).
       10

          Busby v. State, 990 S.W.2d 263, 267 (Tex. Crim. App. 1999).
       11

         See id. (“The doctrine of stare decisis indicates a preference for maintaining consistency
even if a particular precedent is wrong.”) I regard this “preference” as a rebuttable presumption. See
State v. Colyandro, 233 S.W.3d 870, 886-87 (Tex. Crim. App. 2007) (Price, J., concurring).
