                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS

                                                NO. PD-0323-11

                                    COREY 1 DON LOUIS, Appellant

                                                          v.

                                          THE STATE OF TEXAS

               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                     FROM THE SIXTH COURT OF APPEALS
                               FANNIN COUNTY

       J OHNSON, J., delivered the opinion of the Court in which K ELLER, P.J., P RICE,
H ERVEY, C OCHRAN, and A LCALÁ, JJ., joined. M EYERS, W OMACK, and K EASLER, JJ.,
dissented.

                                                  OPINION

         Appellant was convicted of capital murder for the death of his girlfriend’s two-year-old son.

Because the state did not seek the death penalty, appellant was sentenced to life imprisonment. The

court of appeals determined that the evidence was legally insufficient to prove that appellant

intentionally or knowingly caused the death of the child and, accordingly, reversed the capital-

         1
           W e spell appellant’s first name as “Corey.” W hile the indictment and the trial court’s judgment spell his
name “Cory,” the docket sheet reflects that the trial court granted, without objection, the state’s motion to amend the
indictment to correct the spelling of the defendant’s name. The indictment itself includes a handwritten, interlined
“Corey” above the printed “Cory.” Appellant’s notice of appeal and the opinion of the court of appeals also use
“Corey.”
                                                                                                       2

murder conviction and acquitted him of that charge. Louis v. State, 329 S.W.3d 260 (Tex.

App.–Texarkana 2010). That court also determined that there was jury-charge error and remanded

the case to the trial court for a new trial on the lesser-included offenses that had been included in the

jury charge. Id.

        We granted review of all seven grounds raised by the state prosecuting attorney’s petition.

Those grounds ask:

        1. Did the court of appeals violate Jackson v. Virginia by not considering all of the
        evidence, re-assigning weight and credibility, and generally not viewing the evidence
        in the light most favorable to the verdict?

        2. Was the evidence sufficient?

        3. Is an instruction on mistake of fact appropriate when the mistaken “fact” is the
        result of the conduct in a result-of-conduct offense?

        4. Is mistake of fact applicable to lesser-included offenses when the culpability
        negated by the mistaken belief applied only to the greater offense?

        5. Does mistake of fact apply to the culpable mental states of recklessness and
        criminal negligence?

        6. Is the failure to submit a mistake-of-fact instruction that merely denies the charged
        offense ever harmful?

        7. Is instructing the jury that it may infer intent or knowledge from acts done or
        words spoken ever harmful, either alone or in combination with other erroneous
        instructions?

Although articulated in seven grounds, the state’s grounds seek review on three issues asserting that:

1) the evidence is legally sufficient, 2) the trial court did not err in refusing to submit a jury

instruction on the mistake-of-fact defense, and 3) any jury-charge error was harmless.

                                                I. Facts

        The court of appeals recites the underlying facts of this case very well. Louis v. State, supra.
                                                                                                     3

The record reflects that appellant lived with several children and his girlfriend, the mother of the

victim. The indictment alleged that appellant intentionally or knowingly caused the death of a

named child younger than six years of age by beating him about the body. The alleged beating

occurred after the two-year-old boy and his four-year-old sister arose during the night and made a

big mess in their home, spreading food, including mustard, mashed potatoes, dog food, and

household chemicals on the floor. Upon arising that morning, appellant “disciplined” the two

children for making the mess. This discipline included multiple rounds of whippings with a belt and

orders that the two children remain standing facing a wall until appellant returned home from work.

Appellant’s girlfriend also disciplined the two children, including tying the boy’s wrists to a clothes

rod in a closet when he was unable to remain standing. After removing the boy from that position

and putting him to bed, the mother later found him “stiff in bed–rigor mortis had set in.” Louis v.

State, 329 S.W.3d at 264. Emergency medical personnel arrived at the home, determined that the

boy was already dead, and took his body to the local hospital. Later, both appellant and the mother

spoke with officers about the circumstances of the child’s death and made videotaped statements.

Subsequently, they were both arrested and charged with offenses related to the child’s death.

Pursuant to a plea agreement, appellant’s girlfriend plead guilty to injury to a child and to murder

and was sentenced to fifty years’ imprisonment in each case. She also agreed to, and did, testify at

appellant’s trial. Although implicating appellant in the bulk of the beating of the children, the

girlfriend did admit to kicking the victim during the incident and hanging him in the closet by his

wrists.

          In addition to the capital murder alleged in the indictment and over appellant’s objections,

the jury charge also included instructions on several lesser-included offenses, including
                                                                                                     4

manslaughter, criminally negligent homicide, and injury to a child, which were “submitted to [the

jury] in the alternative.” Also over appellant’s objection, the jury charge included language that 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 offense was

committed[,]” with such language being included in the definitions portion and in the portion

applying the law to the facts to the capital murder and to each of the lesser-included offenses. The

trial court also overruled and denied appellant’s request that the jury charge include an instruction

on the defense of mistake of fact. The jury found appellant guilty of the offense of capital murder

as charged in the indictment. Because the state filed a notice of its intent not to seek the death

penalty, appellant was sentenced to life imprisonment.

                                   II. Court of Appeals Opinion

       On appeal, appellant raised several points of error, including challenges to the sufficiency

of the evidence to support the guilty verdict. Appellant also raised claims that the trial court

committed reversible error in refusing his requested mistake-of-fact jury instruction and in including

in the jury charge objected-to language that impermissibly commented on the evidence, specifically

that “[i]ntent or knowledge may be inferred by acts done or words spoken.”

       Appellant was accused of intentionally or knowingly causing the death of a named child who

was younger than six years of age by beating him about the body. Thus, the state had the burden of

proving that accusation. In reviewing the evidence for sufficiency, the court of appeals considered

the evidence in the light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. Louis v. State, 329

S.W.3d at 267. After setting out the facts of the case in great detail, the court analyzed the evidence
                                                                                                    5

to determine whether it was legally sufficient to prove that appellant had the requisite mens rea to

be convicted of capital murder which, as a result-of-conduct offense, is defined in terms of whether

the perpetrator’s actions were intended to produce or had a substantial certainty of producing, a

specified result. Id. The court of appeals determined that “[n]o evidence was presented that

[appellant] ever held the intention to kill [the child,]” but rather there was evidence that appellant

was engaged in disciplining the children, “albeit to an excessive, horrific, and cruel degree.” In its

opinion, the court of appeals pointed out that even a police-officer witness did not think that

appellant intended to cause the child’s death and believed that the death was accidental. Id. at 268.

The court of appeals likewise determined that there was no evidence that appellant was aware that

his spanking of the child was reasonably certain to cause the child’s death. Id. at 269. It noted that

all of the evidence pointed to appellant and the mother “doing what they did with the intent to

discipline the children, but not attempting to kill them or to engage in conduct they knew was

reasonably certain to kill them.” Id. Thus the court concluded that there was “simply no evidence

that [appellant] knowingly killed [the child] as ‘knowingly’ is defined in the Texas Penal Code.” Id.

at 270. Accordingly, the court rendered an acquittal for capital murder, found “harmful jury error,”

and remanded for a new trial on the lesser-included offenses that had been included in the original

jury charge. Id. at 270 and n.7.

                                   III. State’s Grounds for Review

       The state’s first two grounds complain about the court of appeals’ determination of

insufficient evidence. Ground one asks whether the court of appeals violated Jackson v. Virginia

in its sufficiency review, while ground two asks whether the evidence was sufficient. We follow

Jackson v. Virginia, 443 U.S. 307 (1979), as the standard for reviewing the sufficiency of evidence.
                                                                                                       6

“In determining whether the evidence is legally sufficient to support a conviction, a reviewing court

must consider all of the evidence in the light most favorable to the verdict and determine whether,

based on that evidence and reasonable inferences therefrom, a rational fact finder could have found

the essential elements of the crime beyond a reasonable doubt.” Gear v. State, 340 S.W.3d 743, 746

(Tex. Crim. App. 2011). The court of appeals properly noted that standard. Louis v. State, 329

S.W.3d at 267.

        The state argues that the evidence is sufficient for a rational juror to find beyond a reasonable

doubt that appellant intentionally or knowingly killed the victim. It asserts that “[t]he severity and

repetition of the beating, the use of an implement, and the diminutive size of the victim all support

the inference that appellant’s conduct was reasonably certain to cause death.”                The state

acknowledges that the court of appeals cited the proper standard of review, noted the relevant law

on the inference of intent, and mentioned its duty to defer to the jury’s determinations of weight and

credibility. But the state also contends that the court of appeals “ignores this duty by only assigning

weight to the testimony contrary to the verdict and by failing to mention important evidence that

supported the jury’s rational inferences.”

        The state also questions the court of appeals’s reliance on, and acceptance of, appellant’s out-

of-court statements and the testimony of witnesses who believed appellant. It asserts that, viewed

in the light most favorable to the verdict, the jury could have credited appellant’s admissions of

conduct and rejected any statement or testimony denying intent or knowledge. It also points out, that

while correctly noting that intent may be inferred from the extent of the injuries and the relative size

and strength of the parties, the court of appeals “never mentioned or apparently considered that the

asthmatic victim was almost three feet tall but weighed only 21 pounds.” The state also asserts that,
                                                                                                                           7

since the injuries from the “spanking” stretched from the victim’s thighs to marks that ran like a

railroad track on his back, a reasonable inference is that appellant knew what he was doing when he

engaged in three rounds of beatings “of this tiny child.” The state also suggests that the testimony,

if believed, that appellant wanted to beat the victim more later that day after he returned home from

work “is as much evidence of appellant’s expectation that the victim was not going to die as it is his

sadistic nature.”2

         The state criticizes the court of appeals for not finding that the type of belt used to administer

the injuries was especially germane to determining appellant’s mental statute and argues that “the

fact that appellant used a leather belt [instead of his bare hand] on a twenty-one-pound child . . . is

relevant to determining how much bodily injury he intended to inflict or knew was reasonably certain

to result.” The state also asserts that “[t]he use of the belt would be relevant if only because

appellant initially lied about using it and exhibited nervousness when it was found” and again

criticizes the court of appeals for noting these facts while giving them no moment. The state also

observes that the court of appeals wrote that appellant called the children “coarse names.” The state

asserts that those words do not appear in the court of appeals’s analysis of appellant’s mental state,

although the record reflects that appellant was not on any controlled substances at the time and “so

any words and actions accurately reflect his intent.” The state also insists that, viewed in the light

most favorable to the verdict, the medical evidence supports a finding that it was appellant’s actions

that killed the child, which in turn, supports inferential intent or knowledge attributable to appellant

alone.



         2
            This argument seems to be counter to the state’s arguments about appellant’s intent to kill the child, as it
indicates that appellant expected the child to be alive later in the day and so did not intend to kill the child.
                                                                                                      8

        Appellant asserts that the state did not produce any evidence demonstrating that he ever held

the intention to kill the child, nor was there any evidence that, with respect to the nature of his

conduct or to the circumstances surrounding his conduct, that he was aware that his conduct was

reasonably certain to cause the death of the child. Appellant points out that he told police he was

spanking the children as punishment for having made a mess in the house, and the mother’s version

of events corroborated this. He notes that an officer who questioned appellant did not think appellant

intended to cause the child’s death but rather believed that the death was accidental. He also asserts

that there was nothing in the testimony of the two child witnesses, who were also present when the

punishment took place, to suggest that he was engaged in anything more than disciplining the

children, albeit to an excessive degree.

        Appellant also argues that there was no evidence that he was aware that his “spanking” the

child was reasonably certain to cause the child’s death, thus there was insufficient evidence to

support a finding that he knowingly caused the child’s death. He points out that appellant’s

statements to police that he was disciplining the children and expressed an intention to resume the

“discipline” when he returned home from work indicates that he believed the child would be alive

when he returned. He also notes the importance of the mother’s testimony that she thought

appellant’s “spanking” was what a normal parent would do and that he spanked them like he always

did and that she believed appellant was simply engaging in a normal act of child discipline. He

suggests that this evidence further reflects that this was considered customary child discipline in that

household, thus there is no inference that appellant was reasonably certain death would result from

his conduct. Appellant also points out that both he and the mother had charge of the children, and

there is evidence that she continued the abuse of the victim after appellant left for work. We observe
                                                                                                      9

that the medical examiner who performed the autopsy of the child testified that the cause of death

was homicidal violence including blunt-force injuries, but could not pinpoint exactly which injury

was fatal and caused the death. She testified that she could not “just take one of those bruises out,”

but rather had “to do everything in totality”; “it’s all of the various bruises combined.” Because she

had a medical history that indicated that the child had been hung by his wrists in a closet, the medical

examiner also included asphyxia, along with the multiple blunt-force injuries, as a possible cause

of death. The medical examiner was unable to determine whether the child’s death was caused

specifically by the actions of appellant or of the mother.

        The state correctly contends that the court of appeals’s analysis is flawed because “the

credited evidence supporting acquittal comes from appellant’s out-of-court statements and his

accomplice.” The court of appeals failed to defer to the jury’s role as the fact finder that exclusively

determines the weight and credibility of evidence. See Wirth v. State, 361 S.W.3d 694 (Tex. Crim.

App. 2012). By applying its own common-sense understanding of the parameters of parental

discipline, the jury could have reasonably disregarded all of the evidence purporting that appellant

believed this was appropriate discipline. The court of appeals should have deferred to that credibility

assessment by the jury because it was the exclusive fact-finder. See id.

        By considering facts that the jury could have reasonably disregarded, the court of appeals

misapplied the standard for sufficiency of the evidence of capital murder. “Capital murder is a

result-of-conduct offense; the crime is defined in terms of one’s objective to produce, or a substantial

certainty of producing, a specified result, i.e. the death of the named decedent.” Robles v. State, 273

S.W.3d 322, 329 (Tex. Crim. App. 2008). The pertinent question, therefore, is whether the jury

could have rationally determined beyond a reasonable doubt from the totality of the circumstantial
                                                                                                        10

evidence viewed in a light most favorable to its verdict that appellant had intent to cause the death

of the child. See Jackson, 443 U.S. at 318; Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010).

         Viewing the evidence in a light most favorable to the jury’s verdict, the record reflects that

appellant repeatedly struck a two-year-old child with a leather belt over a large area on the child’s

thighs, buttocks, and back. The injuries to the child’s upper thighs and buttocks caused “extensive

hemorrhaging” and contributed to his death, which was caused by a combination of the acts by

appellant and the child’s mother. No evidence, however, shows that appellant knew that, after he

left the house, the child’s mother would repeatedly strike the child’s head and hang him by his arms

in a closet. Additionally, no evidence shows that appellant struck the child anywhere other than his

buttocks, thighs, and back, nor did he use a weapon other than a leather belt. From the evidence

presented to it–the description of the area where the child was struck, the use of a belt as the only

weapon, and the absence of any evidence showing that the child could or would have died from the

injuries caused by appellant alone–the jury could not have reasonably inferred that appellant intended

to cause the death of the child. The injuries caused by appellant became fatal in combination with

the later injuries separately caused by the child’s mother, who independently struck the child’s head

repeatedly and hung him from his arms in a closet. Although we disagree with its analysis, the court

of appeals properly determined that the jury could not have inferred from the totality of the

circumstantial evidence viewed in a light most favorable to its verdict that appellant intended to

cause the death of child. We therefore overrule grounds one and two.

         Grounds three, four, and five assert that the trial court did not err in refusing to submit a jury

instruction on the mistake-of-fact defense. The state insists that “[u]nder no circumstances was
                                                                                                   11

mistake of fact applicable in this case.” Ground six suggests alternatively that the failure to submit

a mistake-of-fact instruction “that merely denies the charged offense” is never harmful.

       In addressing appellant’s complaint about the trial court’s denial of a mistake-of-fact

instruction, the court of appeals discussed Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App.

2007). The court of appeals noted that, in Thompson, a case involving charges of causing serious

bodily injury to a child, a first-degree felony, and bodily injury to a child, a third-degree felony,

“Thompson’s intent to cause bodily injury was found to transfer to his having caused serious bodily

injury.” Louis v. State, 329 S.W.3d at 271 (citing Thompson v. State, 236 S.W.3d at 800). The court

of appeals also noted that this Court stated in Thompson that, under the circumstances of the case,

Thompson would have been entitled to a mistake-of-fact instruction had he requested one. Id. The

court of appeals pointed out that appellant’s jury charge included transferred intent language eight

times: in the portion of the charge for capital murder and thereafter for each of the seven lesser-

included offenses. “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 offense was committed.” Id. at 272. Because the facts of Thompson are similar to the facts

in appellant’s case–that he intended to discipline the child, an action which would clearly entail

bodily injury as defined by statute–the court of appeals held that appellant was entitled to the

mistake-of-fact instruction that he requested at trial but was denied. Id.

       The state insists that “[t]he applicable language in Thompson was dicta, was wrongly

decided, and is unsupportable in application.” It specifically purports to be “deconstructing

Thompson” and suggests that some of Thompson’s reasoning is circular. The state also argues that

the mistake-of-fact charge under Texas Penal Code § 8.02(a) requires the defendant to produce a fact
                                                                                                    12

about which he was mistaken, rather than simply denying the requisite mental state. The state also

asserts that the mistake-of-fact charge that appellant requested did not apply to all of the lesser-

included offenses that were submitted in the jury charge. It also argues that mistake of fact is never

applicable to the culpable mental state of criminal negligence.

       Appellant recognizes that, while the facts of this case are similar to those in Thompson, in

this case he did request a mistake-of-fact instruction and asserts that the court of appeals’s reliance

on Thompson was appropriate. Appellant argues that, because the trial court instructed the jury that

it should find him guilty if the only difference between what actually occurred and what he desired,

contemplated, or risked is that a different offense was committed, the evidence raised an issue as to

mistake of fact, and such an instruction should have been included in the jury charge as he had

requested.

       “It is a defense to prosecution that the actor through mistake formed a reasonable belief about

a matter of fact if his mistaken belief negated the kind of culpability required for commission of the

offense.” TEX . PENAL CODE § 8.02(a). “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 offense was committed[.]” TEX . PENAL CODE § 6.04(b)(1).

       Although the trial court denied appellant’s request that a mistake-of-fact instruction be

included in the jury charge, it included, over appellant’s objection, a transferred-intent instruction

in the definitions section of the jury charge and in the application sections regarding the capital

murder and each of the lesser-included offenses. We held in Thompson, 236 S.W.3d at 789, that a

defendant who is subject to a transferred-intent provision is entitled, upon request, to a mistake-of-

fact instruction. Appellant was indeed subjected to such an instruction, thus upon his request, he was
                                                                                                                         13

entitled to have a mistake-of-fact instruction included in the jury charge. The court of appeals

properly held that appellant was entitled to the mistake-of-fact instruction that he requested but was

denied at trial.

         The mistake-of-fact defense is broadly worded and not limited to transferred-intent situations.

In this case, however, an instruction on the transferred-intent doctrine was included in the jury

charge, even though it may not have been applicable to the capital murder, as we have held that

capital murder is a result-of-conduct offense. See e.g., Roberts v. State, 273 S.W.3d 322, 329 (Tex.

Crim. App. 2008). And in Thompson, 236 S.W.3d at 799-800, we noted that capital murder contains

what appears to be a sort of anti-transfer element; thus transferring intent from those lesser offenses

to capital murder would be impermissible.

         Besides the primary offense of capital murder, in this case the jury charge included multiple

lesser offenses such as intentionally or knowingly causing serious bodily injury to a child and

intentionally or knowingly causing bodily injury to a child. The transferred-intent doctrine could be

used to transfer intent from the bodily injury offense to the serious bodily injury offense, but the

mistake-of-fact defense would prevent such a transfer if the defendant had a reasonable, but

mistaken, belief that he was inflicting only bodily injury. Thompson v. State, 236 S.W.3d at 793.

Because the transferred-intent instruction was applied to all of the offenses in the jury charge and

authorized conviction of each specific offense, if causation were transferred pursuant to § 6.04, the

mistake-of-fact instruction was needed to permit the jury to negate the transferred intent if the jury

believed that appellant had a reasonable mistaken belief about the type of injury he was inflicting.3


         3
            Appellant asserts that, despite giving the jury eight offenses to choose from, by giving the jury the
transferred-intent instruction, the trial court was, in essence, telling jurors that, even if they believed he intended only
to injure the child, which would cause the jury to have convicted him of one of the lesser-included offenses, “they
                                                                                                               14

        Based upon the court of appeals’s correct application of Thompson as to the circumstances

of this case, we agree with its conclusion that appellant was entitled to the mistake-of-fact instruction

that he requested but was denied. Louis v. State, 329 S.W.3d at 272. Grounds three and four and

five are overruled.

        Grounds six and seven question the court of appeals’s finding of harm after finding jury-

charge error. Ground six asserts that the failure to submit a mistake-of-fact instruction “that merely

denies the charged offense” is never harmful. The state opines that, “[i]f transferred intent was

properly applied in this case and appellant was entitled to a mistake of fact instruction based on the

result of conduct, a defendant does not suffer even ‘some harm’ when he is denied an instruction that

is nothing more than a denial.” It also suggests that a jury’s finding of guilt beyond a reasonable

doubt that a defendant did intend or know the result of his actions was necessarily a rejection of his

defense that he did not, and consequently, refusing to submit a superfluous “mistake-of-result” (sic)

instruction, if error, is always harmless. The state also notes that appellant clearly wanted the

mistake-of-fact instruction to apply to the capital-murder charge, but did not ask that it be applied

to any of the lesser-included offenses.

        Appellant did request that a mistake-of-fact instruction be included in the jury charge. The

court of appeals properly analyzed the harm from the jury-charge error under the well-established

standards of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)(op. on reh’g). It pointed out

that, because appellant had objected to the jury-charge language, Almanza requires reversal if, after

taking into consideration all of the evidence, the entire jury charge, and the parties’ arguments, the



should [nevertheless] convict him of murdering the child, because the ‘only difference between what actually
occurred’ and what appellant ‘desired, contemplated or risked, was a different offense.’”
                                                                                                    15

court of appeals finds “some harm” to appellant’s rights. Louis v. State, 329 S.W.3d at 271, 272.

After conducting the appropriate analysis, the court of appeals determined that it could not say that

the jury-charge errors did not cause “some harm” to appellant. “[Appellant’s] mental state was a

hotly contested issue” and his “primary defense relied upon the position that he did not know that

his ‘spankings’ were sufficiently severe to result in the child’s serious bodily injury or death.” “The

failure to instruct the jury on the defense of mistake of fact was an impediment to [appellant’s]

ability to present his defense that he did not have the requisite mens rea to be found guilty and to

argue that defense to the jury.” Id. at 271, 273. Lack of the requested instruction effectively

prevented appellant from presenting his defense and is not harmless. Hall v. State, 225 S.W.3d 524

(Tex. Crim. App. 2007). Accordingly, we overrule ground six.

       Ground seven asserts that erroneously submitting an instruction that the jury may use to infer

intent or knowledge from acts done or words spoken is never harmful. In light of our decision on

ground six, which affirms the court of appeals’s finding of “some harm” from the absence of a

mistake-of-fact instruction, we do not address a complaint that submission of an inference instruction

is never harmful and dismiss ground seven.

       Having overruled grounds one through six and dismissed ground seven, we affirm the

judgment of the court of appeals.



Delivered: June 6, 2012
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