      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00161-CR



                                   Joshua Thompson, Appellant

                                                   v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
         NO. 9034175, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                                            OPINION


               A jury found appellant Joshua Thompson guilty of injury to a child and aggravated

assault, for which it imposed prison terms of twenty-six and twenty years, respectively. See Tex.

Pen. Code Ann. §§ 22.02, 22.04 (West Supp. 2005). In two points of error, appellant contends the

trial court erred by instructing the jury on the law of transferred intent with respect to the injury to

a child offense, and by failing to require a culpable mental state with respect to his use of a deadly

weapon in the aggravated assault offense. We will overrule these points and affirm the convictions.


                                             Background

               Appellant’s father, Hank Thompson, was the pastor at Capitol City Baptist Church

in Austin. Appellant was the associate pastor in charge of the church’s Spanish-speaking ministry.

Appellant’s twin brother, Caleb Thompson, was also active in the church. The brothers were twenty-
two years old. The complainant, L.G., attended the church with his stepfather, mother, and sister.

L.G. was eleven years old.

               On the morning of July 3, 2002, L.G. was taking part in a children’s Bible-study

program at the church. His teacher, believing that he was misbehaving, reported him to appellant.

After a brief meeting with L.G. at the church, appellant drove the boy to Caleb’s nearby residence.

The child testified that after they arrived, he waited in the living room while appellant went outside

and cut a branch from a tree. When appellant returned, he took L.G. to a bedroom, directed him to

lie across the bed, and began to hit him across the back with the branch. L.G. testified that he cried

out, tried to turn away from the blows, and begged appellant to stop hitting him. Appellant told the

boy to stop squirming and continued to hit him. When the boy began to cry, appellant turned on a

radio and turned up the volume.

               L.G. testified that appellant eventually went to the telephone and called Caleb for

assistance. Other testimony, including that of appellant and Caleb, was to the effect that Caleb had

been at the church and had gone to the house with appellant and L.G. In either event, Caleb entered

the bedroom and held L.G.’s arms to prevent him from moving or deflecting appellant’s blows. L.G.

said that appellant continued to hit him until the branch he was using was shredded. Appellant

ordered the boy to pick up the pieces of the stick and take them to the trash can. L.G.’s nose was

bleeding, and when he returned to the bedroom, appellant and Caleb were cleaning blood from the

carpet.

               L.G. followed appellant back to the living room. He testified that he was having

difficulty standing and that his vision was blurred. Appellant went outside and cut another branch.



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Appellant and Caleb then returned the boy to the bedroom and the beating continued. This time,

appellant sat on L.G.’s legs as he hit him. Caleb continued to hold the boy’s arms. L.G. estimated

that appellant struck him more than one hundred times over a period of one to one-and-a-half hours.

L.G. testified that appellant was praying “to get the devil out of me” as he beat him.

               L.G.’s parents worked cleaning houses, and had gone to work that morning after

dropping off their children at the church. L.G.’s stepfather testified that shortly after 11:00 a.m., he

received a telephone call from appellant, who said that “he had a big problem that he wasn’t able to

fix.” L.G.’s parents returned home, where they found Caleb Thompson’s car sitting in the driveway.

Appellant got out of the car and told L.G.’s stepfather that he “tried to get the devil out, but he

wasn’t able to.” The stepfather testified that appellant advised him to hit his son for two more hours.

Appellant then went to the car, opened the door, and pulled out L.G. The boy was unable to stand,

but appellant said that the child was “faking it.” The witness helped his son into the house as

appellant and Caleb quickly drove away.

               L.G. told his parents that appellant and Caleb had hit him on the back. His stepfather

testified that when they lifted the boy’s shirt to look, they saw “something horrendous” and his wife

began to scream. They immediately called the police and EMS.

               Austin firefighter Tim Bailey was the first emergency worker to arrive at the house.

Paramedic Randy Trinkle arrived a few minutes later. Both men testified that when they saw L.G.’s

back, they involuntarily exclaimed, “Oh, my God.” Trinkle testified that the child’s back, from his

neck to his buttocks, was one huge bruise. It was the worst bruising he had ever seen. L.G.’s blood




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pressure was low, his heart rate was fast, and he appeared to be undergoing hypovolemic shock, an

indication that he was losing blood.

                L.G. was taken to the emergency room and then to intensive care, where he remained

for five days. His attending physician was Renee Jankowski. She testified that L.G.’s “back was

almost one confluent sheet of bruising and superficial scratches that were oozing a little bit of blood.

The bruising was quite severe and what we call palpable—it was raised up—which tells you that

there is a lot of tissue edema underneath and suggests that there is deeper tissue injury.” Jankowski

testified that L.G.’s urine was “coca-cola colored,” which indicated to her that the blood contained

myoglobin, a sign of muscle necrosis. She explained that muscle cells release myoglobin when they

die as a result of trauma. This substance collects in the kidneys and can cause renal failure.

                Jankowski testified that L.G. had bruises on his back, buttocks, and legs that were

equally fresh. All the wounds had a linear pattern. She was of the opinion that the boy had been

beaten with a long, thin object hundreds of times. She said that if L.G. had not received prompt

medical attention, he would have died from renal failure.

                Appellant testified that he had been given permission by L.G.’s parents to physically

discipline him. He said that he and Caleb took the boy to Caleb’s house because corporal

punishment was against church policy. Appellant denied hitting L.G. for an hour; he estimated that

the beating lasted for about ten minutes. He did not know how many times he struck the child, but

denied that it was a hundred or more. He also denied using more than one “switch,” but admitted

hitting the boy “very hard.” He said that he “felt it was wrong” at the time, but that he believed it

was necessary discipline. He conceded that in retrospect, it was a “terrible, terrible idea.”



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               Caleb Thompson testified that appellant told him that “he was going to discipline a

child” and needed a witness. He thought this meant that appellant was going to spank the child on

the buttocks. He claimed to be surprised when appellant began hitting L.G. on the back. Caleb

admitted holding the boy’s arms, saying that he just “froze” as the beating continued. He estimated

that appellant struck the boy about twenty-five times. He acknowledged that appellant’s conduct was

inappropriate, excessive, and brutal.

               Appellant and Caleb Thompson were indicted for injury to a child and aggravated

assault. They were convicted following a joint trial.1


                                        Transferred Intent

               Penal code section 6.04(b) is commonly referred to as the “transferred intent” statute,

although that term does not appear in the statute and it incorporates all four culpable mental states.

The statute 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:

               (1) a different offense was committed; or

               (2) a different person or property was injured, harmed, or otherwise
                   affected.




   1
    We affirm Caleb Thompson’s convictions in Thompson v. State, No. 03-04-00162-CR (Tex.
App.—Austin Dec. 8, 2005, no pet. h.) (not designated for publication).

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Tex. Pen. Code Ann. § 6.04(b) (West 2003).2 In his first point of error, appellant contends the trial

court erred by permitting the jury to apply section 6.04(b)(1) in determining whether he was guilty

of injury to a child as alleged in the indictment. The State agrees with appellant that the section

6.04(b)(1) instructions should not have been given, but asserts that the error was harmless. We

conclude, however, that no error is presented.

                Count one of the indictment alleged that appellant “intentionally and knowingly

cause[d] serious bodily injury to [L.G.], a child 14 years of age or younger, by striking [him] with

a stick, a branch and an object unknown.” See Tex. Pen. Code Ann. § 22.04(a)(1), (e). The court’s

jury charge contained appropriate definitions of the relevant culpable mental states. See Tex. Pen.

Code Ann. § 6.03(a), (b) (West 2003). In addition, over appellant’s objection, the court instructed

the jury 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 offense was

committed.” Id. § 6.04(b)(1). The court then, over appellant’s further objection, applied the law to

the facts in two alternative paragraphs that authorized appellant’s conviction for injury to a child “as

alleged in Count 1” if the jury found that appellant either: (1) “intentionally or knowingly cause[d]

serious bodily injury to [L.G.],” or (2) “intending to cause bodily injury . . . did then and there cause

serious bodily injury to the said [L.G.].” The jury returned a general verdict of guilty “as alleged in

the indictment.”




   2
     Judge Clinton summarized the background of section 6.04(b) in Prince v. State, 861 S.W.2d
913, 915-17 (Tex. Crim. App. 1993) (Clinton, J., dissenting).

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               Injury to a child is a “result of conduct” offense, that is, the culpable mental states

required for the offense relate to the result of the defendant’s conduct. Alvarado v. State, 704

S.W.2d 36, 39 (Tex. Crim. App. 1985); Beggs v. State, 597 S.W.2d 375, 377 (Tex. Crim. App.

1980). Four different punishment grades apply to the offense, depending on the seriousness of the

injury and the culpable mental state with which it is inflicted:


              • A person commits a first-degree felony if he intentionally or knowingly
       causes serious bodily injury to a child.

               • A person commits a second-degree felony if he recklessly causes serious
       bodily injury to a child.

              • A person commits a third-degree felony if he intentionally or knowingly
       causes bodily injury to a child.

               • A person commits a state jail felony if he recklessly causes bodily injury to
       a child or if with criminal negligence he causes either bodily injury or serious bodily
       injury to a child.


Tex. Pen. Code Ann. § 22.04(a), (e), (f), (g). Appellant argues that by authorizing his conviction for

a first-degree felony based on a finding that he acted with the intent to cause bodily injury, the trial

court disregarded the statutory framework of the offense and misapplied section 6.04(b)(1). He

argues more broadly that section 6.04(b)(1) should be given a restrictive interpretation in order to

avoid what he considers to be absurd results that the legislature could not possibly have intended.

See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

               The court of criminal appeals applied section 6.04(b)(1) in a closely analogous case

soon after the adoption of the present penal code. See Honea v. State, 585 S.W.2d 681, 684-85 (Tex.

Crim. App. 1979). Honea was convicted of aggravated robbery on an indictment alleging that he

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intentionally and knowingly caused serious bodily injury in the course of committing robbery. Id.;

see Tex. Pen. Code Ann. § 29.03(a)(1) (West 2003). The evidence showed that Honea and an

accomplice bound and gagged the victim, took his wallet, and left him lying on the floor of a barn.

Honea, 585 S.W.2d at 684. The victim thereafter inhaled dust which caused him to cough and then

vomit, and he died after aspirating vomitus. Id. Honea urged on appeal that the State failed to prove

that he intended to kill the victim. The court rejected this argument:


        It is well settled that one who, intending to commit a felony, accidentally commits
        another felony, is guilty of the felony actually committed. The intent to commit the
        contemplated offense transfers to the offense in fact committed. See V.T.C.A. Penal
        Code, Sec. 6.04, which is derived from Art. 42, V.A.P.C.; Sargent v. State, 518
        S.W.2d 807 (Tex. Crim. App. 1975); Hilliard v. State, 513 S.W.2d 28 (Tex. Crim.
        App. 1974). [Honea] clearly intended to rob [the victim]; his acts resulted in the
        offense of aggravated robbery, and he is guilty of that offense. No variance exists.

               [Honea] contends that the State only proved that [he] acted “recklessly,” or
        with “criminal negligence,” and that a fatal variance exists for this reason. Our
        answer to the preceding contention answers this contention as well.


Id. at 685.

               Honea compels the conclusion that if a defendant intends to cause bodily injury to

another, but his conduct actually results in serious bodily injury, he is under section 6.04(b)(1)

criminally responsible for intentionally causing serious bodily injury. Appellant does not deny that

he caused serious bodily injury to L.G. If in fact appellant intended to cause L.G. bodily injury, the

only difference between what actually occurred and what appellant desired is that a different offense,

or a different grade of the same offense, was committed.




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               Appellant asserts that the application of section 6.04(b)(1) disrupts the statutory

scheme by which injury to a child is subject to different levels of punishment based on the

seriousness of the injury and the culpable mental state of the actor. He argues that if section

6.04(b)(1) applies, the notion of recklessly causing serious bodily injury to a child is rendered a

nullity. We disagree with both contentions. The application of section 6.04(b)(1) does not disrupt

the statutory punishment scheme, but merely adds an additional manner of proving intentional

serious bodily injury to a child. See Hilliard v. State, 513 S.W.2d 28, 32 (Tex. Crim. App. 1974)

(construing predecessor statute). A person who injures a child without intending or contemplating

doing so, but under circumstances showing that he consciously disregarded a substantial and

unjustifiable risk of causing injury, is properly convicted of recklessly causing either bodily injury

or serious bodily injury depending on the seriousness of the injury.

               The State suggests that section 6.04(b)(1) was improperly applied in this cause

because section 22.04 requires proof that the defendant intended to cause serious bodily injury in

order to sustain a conviction for first-degree felony injury to a child. But section 6.04(b)(1) does not

dispense with the intent element. Instead, as noted above, the statute merely provides an additional

method for proving such intent. Id. Under section 6.04(b)(1), appellant’s intent to cause bodily

injury to L.G. “transferred” to the serious bodily injury that actually resulted from appellant’s

conduct. See Honea, 585 S.W.2d at 685. As a matter of law, appellant was shown to have intended

serious bodily injury.

               Appellant argues that section 6.04(b)(1) must be construed restrictively, asserting that

a literal interpretation of the statute would lead to absurd results. See Boykin, 818 S.W.2d at 785.



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In this cause, however, we must decide only whether section 6.04(b)(1) was properly applied in this

prosecution for intentionally causing serious bodily injury to a child. We hold, under the authorities

cited above, that it was. We express no opinion regarding the application of section 6.04(b)(1) under

other circumstances.

                Point of error one is overruled.


                                           Deadly Weapon

                Count two of the indictment alleged aggravated assault with a deadly weapon. See

Tex. Pen. Code Ann. § 22.02(a)(2). The trial court’s jury charge tracked the indictment and

instructed the jurors to convict appellant if they found that he “intentionally or knowingly cause[d]

bodily injury to [L.G.], by striking [him] with a stick, a branch, or an object unknown . . . and

[appellant] did then and there use or exhibit a deadly weapon, to-wit: a stick, a branch, or an object

unknown . . . which in the manner of its use or intended use was capable of causing death or serious

bodily injury.”    In his second point of error, appellant contends that this instruction was

fundamentally erroneous because it authorized his conviction for aggravated assault with a deadly

weapon without requiring a culpable mental state with respect to the weapon’s use. Appellant argues

that the court should have required the jury to find that he employed the stick, branch, or other object

with the intent to cause death or serious bodily injury.

                “[A]nything that in the manner of its use or intended use is capable of causing death

or serious bodily injury” is a deadly weapon. Tex. Pen. Code Ann. § 1.07(a)(17)(B) (West Supp.

2005). The statute does not require that the actor actually intend death or serious bodily injury.

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). It is sufficient that the actor uses or

                                                   10
intends to use the object in a manner capable of causing death or serious bodily injury. Id.; and see

Bailey v. State, 38 S.W.3d 157, 159 (Tex. Crim. App. 2001). There was no error in the charge.

Point of error two is overruled.

               The judgments of conviction are affirmed.




                                              __________________________________________

                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: December 8, 2005

Publish




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