Aguirre v. State

• Decision Date: 14 July 1982
• Docket Number: No. 1,No. 62033,62033,1
• Citation: 732 S.W.2d 320
• Court: Texas Court of Criminal Appeals
• Parties: Benny AGUIRRE, Appellant, v. The STATE of Texas, Appellee

Page 320

732 S.W.2d 320

Benny AGUIRRE, Appellant, v. The STATE of Texas, Appellee.

No. 62033.

Court of Criminal Appeals of Texas Panel No. 1.

July 14, 1982.

On Rehearing July 1, 1987.

Leonard M. Roth, Houston, for appellant.

Carol S. Vance, Dist. Atty., John B. Holmes, Jr., Dist. Atty., Alvin M. Titus, and John S. Holleman, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ODEN, TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for murder. After finding appellant guilty, the jury assessed punishment at 99 years.

The indictment in the instant cause contains three paragraphs charging the same offense. See Article 21.24(b), V.A.C.C.P. The State ultimately abandoned one of the paragraphs and proceeded to trial with the two remaining paragraphs. In its charge to the jury, the court authorized a conviction for murder if the jury found that appellant committed the offense in either of the two manners alleged in the two paragraphs. The indictment in the instant cause alleges in pertinent part that on February 11, 1978, appellant:

"Did then and there unlawfully, intentionally and knowingly cause the death of Elizabeth Aguirre by shooting her with a gun....

And the defendant on or about February 11, 1978, did unlawfully, intentionally and knowingly attempt to commit and did commit a felony, to wit: criminal mischief and in the course of and in furtherance of the said felony did then and there attempt to commit and did commit an act which was clearly dangerous to human life, to wit: shooting a gun into an occupied dwelling which said act caused the death of Elizabeth Aguirre."

Esther Aguirre testified that she is appellant's ex-wife. Appellant and Aguirre were divorced in 1975 after 15 years of marriage. During the course of that marriage, the couple had four children including the deceased, Elizabeth Aguirre. On February 11, 1978, appellant went to Aguirre's home and demanded that she let him inside. She related that she refused to open the door and ran to the kitchen with Elizabeth. While standing in the kitchen, Aguirre heard a shotgun blast and saw that Elizabeth had sustained a gunshot wound. Aguirre related that the child died within 48 hours of reaching the hospital.

Appellant testified that he had gone to Aguirre's home on February 11 to speak to her about leaving the children alone at night. He testified that when his ex-wife refused to let him into the house, he went to his truck and retrieved a shotgun. He testified that he shot at the door in order to open it and did not consider the fact that someone could have been behind the door. Finally, appellant testified that he knew that three of his four children were probably in the house at the time he fired at the door with his shotgun.

Authorized by the charge of the court to find appellant guilty of either murder as alleged in the first paragraph pursuant to V.T.C.A. Penal Code, § 19.02(a)(1) or murder as alleged in the next paragraph pursuant to id., § (a)(3), the jury returned a general verdict finding appellant "guilty of the offense of murder, as charged in the indictment." Thus, because of the way the State structured its case and the manner the jury was charged we are unable to determine which theory of alleged criminal responsibility prevailed in the jury room. ¹

Such is the complaint of appellant under his ground of error five, assailing the verdict of the jury as being so vague and indefinite that "there is no way of ascertaining which of two alternatives ... created the basis for the jury's verdict." The point is determinative for if the jury opted for the felony-murder theory alleged in the second remaining paragraph of the indictment, its verdict could not be sustained for the reasons set forth in Garrett v. State, 573 S.W.2d 543, 545 (Tex.Cr.App.1978). See Kuykendall v. State, 609 S.W.2d 791, 794-795 (Tex.Cr.App.1980).

In Garrett v. State, supra, it was said that the felony murder rule dispenses with any inquiry into mens rea accompanying the homicide itself, for the underlying felony supplies the necessary culpable mental state. But, where, as there, the legal theory is that the intent with which the act of aggravated assault was committed is transferred to the act which caused death, the State does not sustain its theory by using "the very act which caused the homicide, committing an aggravated assault by use of a deadly weapon, as the felony which boosts the homicide itself into the murder category," id., at 545. The Court observed that "application of the felony murder doctrine to situations such as this is an attempt to split into unrelated parts an indivisible transaction," id., at 546. Accordingly, it was held that "the State improperly prosecuted appellant under the felony murder doctrine."

When, in Ex parte Easter, 615 S.W.2d 719 (Tex.Cr.App.1981), the Court revisited it, the lesson of Garrett was said to be inapplicable to a felony murder indictment for causing the death of a child when the underlying felony alleged is injury to a child, and concluded the indictment was not fundamentally defective. Id., at 721. On the evidentiary point argued in Easter--the matter with which we are more concerned in the instant case--the Court simply rejected an effort to attack collaterally the sufficiency of the evidence to support the conviction. Ibid. Nothing held in Easter militates against our application of the principles enunciated in Garrett to the case at bar. ²

Since the general verdict of the jury may well have rested upon the felony murder theory which we have held untenable in the circumstances of this case, the conviction cannot be upheld. Stromberg v. California, 283 U.S. 359, 367-370, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117 (1931).

The judgment of conviction is reversed and the cause is remanded. ³

TOM G. DAVIS, Judge, dissenting.

Appeal is taken from a conviction for murder. After finding appellant guilty, the jury assessed punishment at 99 years.

The majority reversed appellant's conviction on the basis that the felony murder allegation cannot be sustained for the reasons set forth in Garrett v. State, 573 S.W.2d 543. The majority therefore holds that because appellant's conviction may have rested upon the felony murder paragraph of the indictment, the judgment must be reversed.

Garrett was a prosecution for murder under the felony murder rule as set forth in V.T.C.A., Sec. 19.02(a)(3). There, the defendant pointed a weapon at the victim. The State prosecuted the defendant under the felony murder rule and alleged that while he was in the course of committing the offense of aggravated assault with a deadly weapon and in the furtherance of the commission of that offense he committed an act clearly dangerous to human life, namely, pulling a loaded pistol out of his pocket which in turn caused the death of the victim.

The judgment in Garrett was reversed. This Court noted that the felony murder rule calls for the transfer of intent from one criminal act to another. It was found that the defendant's conviction could not stand because the aggravated assault and the act resulting in the homicide were one and the same. It was therefore held that in order for the evidence to be sufficient to support a conviction under the felony murder rule, there must be a showing of felonious criminal conduct other than the assault which causes the homicide.

In the instant cause, the indictment alleges and the proof shows that appellant was engaged in felonious criminal conduct, namely, felony criminal mischief at the time the deceased was killed. Therefore, as required in Garrett, there was a showing of felonious criminal conduct other than the assault which caused the homicide. Unlike Garrett, appellant's act of felony criminal mischief in shooting at the house and the resulting homicide of his daughter were not one in the same. In this case, appellant attempted to blow open a door with a shotgun, a property offense, and in the furtherance of such offense, the deceased was killed. I cannot agree that Garrett requires the reversal of appellant's conviction and therefore must dissent.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

McCORMICK, Judge.

Appellant was tried for the murder of his thirteen year old daughter. The evidence showed that appellant and the child's mother were married for a strife-ridden fifteen year period. After their divorce in 1975, the trouble continued. Testimony at trial alluded to several instances in the intervening years during which appellant threatened to kill his wife. During the evening of February 10, 1978, the appellant went to his ex-wife's home. Upon discovering that she was gone and had left his three daughters, ages fifteen, thirteen and seven alone, appellant became enraged. He began berating his ex-wife's conduct to his daughters. When his eldest daughter objected to his characterizations of her mother, appellant replied that he was going to kill his ex-wife. The next afternoon, appellant drove to his ex-wife's house and parked his truck in front of the house. When his ex-wife came to the front door, he demanded that she come out and talk to him. She told him to go away and then went back inside the house. At that point, appellant got his shotgun out of the truck, walked up on the porch and fired a blast through the front door. Pellets from this blast passed through the door, through the house and into the kitchen, striking appellant's thirteen year old daughter. Next appellant went to his ex-wife's car, raised the hood and fired another shotgun blast into the car's engine. Then he walked to the back of the house and fired a final shotgun blast into the back door. Appellant then kicked in the back door and found his daughter lying wounded on the kitchen floor. Appellant testified at trial that he shot at the door only in order to open it and had no intent to kill anyone.

Frank Salazar, appella...