            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

               K ELLER, 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.
                                                                         ROBERTS DISSENT — 2

       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




       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.
                                                                           ROBERTS DISSENT — 3

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



        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).
                                                                         ROBERTS DISSENT — 4

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
                                                                      ROBERTS DISSENT — 5

along with Ramirez, or they were reasonably certain8 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




       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).
