Garrett v. State

Citation749 S.W.2d 784
Decision Date11 June 1986
Docket NumberNo. 642-83,642-83
PartiesJoyce Lee Lewis GARRETT, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Mark Stevens, Stephen E. Van Gaasbeck, David K. Chapman, of counsel, San Antonio, for appellant.

Charles R. Borchers, Dist. Atty., Laredo, Robert Huttash, State's Atty., and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.



By its verdict the jury found appellant "guilty of murder as charged in the indictment." Appellant was duly convicted, and her punishment assessed by the trial court at thirty five years confinement.

The cause was appealed to the San Antonio Court of Appeals, which reversed the conviction on the basis of unassigned fundamental error in the trial court's charge to the jury at the conclusion of the guilt phase of the trial. Garrett v. State, 624 S.W.2d 953 (Tex.App.--San Antonio 1981). The court of appeals held that the trial court fundamentally erred when it failed to apply the law of transferred intent to the facts of the case. See V.T.C.A. Penal Code, § 6.04(b)(2). This Court granted the

State's petition for discretionary review and reversed the decision of the court of appeals, holding that failure to apply the law of transferred intent to the facts of the case in the court's charge does not constitute fundamental error. 1 The cause was remanded to the court of appeals "for consideration of appellant's (assigned) grounds of error." Garrett v. State, 642 S.W.2d 779, 781 (Tex.Cr.App.1982). Appellant filed a motion for rehearing in this Court in which she argued for the first time that the evidence was insufficient to support the jury's verdict. This motion was denied

Subsequent to our remand of the cause to the court of appeals appellant filed an amended brief in that court in which he reiterated his argument that the evidence was insufficient to support the conviction. The court of appeals agreed, again reversed appellant's conviction, and this time remanded to the trial court with instructions that an order of acquittal be entered in the cause. It was observed, however, that "[t]he State is not precluded from retrying appellant on a lesser included offense of murder." Garrett v. State, 656 S.W.2d 97, 101-02 (Tex.App.--San Antonio 1983).


The State has raised what essentially amounts to three grounds for review in its petition. We will examine these grounds seriatim.

Initially the State argues that after this Court remanded the cause to the court of appeals for consideration of appellant's assigned grounds of error, that court was without jurisdiction to entertain an amended or supplemental brief raising grounds of error not contemplated under the terms of our remand order. We disagree.

Effective September 1, 1981, by virtue of approval of amended Article V, § 5, Constitution of Texas and enactment of amendments to Articles 4.04 and 44.24, and of Article 44.45, V.A.C.C.P., this Court has jurisdiction, power and authority to exercise sound judicial discretion to review decisions of courts of appeals in criminal cases. Like the Supreme Court, this Court has plenary power upon review to dispose of a cause "as the law and nature of the case may require," including remanding it to the court of appeals from whence it came. Articles 44.24(b), 44.25, 44.45(b)(7) and Tex.Cr.App.Rule 304(k). And when deemed appropriate the Court has routinely remanded to courts of appeals: e.g., Sanchez v. State, 628 S.W.2d 780 (Tex.Cr.App.1982); Ben-Schoter v. State, 638 S.W.2d 902 (Tex.Cr.App.1982); Finch v. State, 643 S.W.2d 414 (Tex.Cr.App.1982); Cosper v. State, 650 S.W.2d 839 (Tex.Cr.App.1983); Szilvasy v. State, 678 S.W.2d 77 (Tex.Cr.App.1984). 2

Jurisdiction, power and authority to decide an ordinary criminal cause on direct appeal is now vested alone in courts of appeals. Article V, § 6, Constitution of Texas, and Article 4.03, V.A.C.C.P. "Once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute." Carter v. State, 656 S.W.2d 468, 469 (Tex.Cr.App.1983). Now compare delineation of jurisdiction of this Court in Article 4.04, V.A.C.C.P., to "review any decision of a court of appeals in a criminal case." 3

As in this cause, where a court of appeals renders a decision that reverses judgment

of conviction without ruling on all grounds of error raised on appeal, and on discretionary review this Court determines that the reason for that decision is erroneous and reverses the judgment of the court of appeals, we have removed as a bar whatever error led the court below to pretermit determination of other matters within its jurisdiction, power and authority on direct appeal. There is nothing left for this Court to review, and if the court of appeals is to exercise its direct appeal jurisdiction the only proper disposition of the cause by this Court is to remand it to the court of appeals for that purpose

When the judgment of this Court reversing the judgment of court of appeals and remanding the cause to that court becomes final, this Court has relinquished its review jurisdiction in the cause. Finch v. State, 643 S.W.2d 415 (Tex.Cr.App.1982). Remand in that instance is purely a simple procedural device to return the cause to the court of appeals. No order instructing the court of appeals to exercise its jurisdiction, power and authority is necessary for it to proceed to decide the direct appeal. When jurisdiction over the cause is restored by remand neither statutes nor scanty prior decisions cited above dictate that the court of appeals is limited in its renewed appellate consideration of the cause to the terms of our order of remand.

Indeed, an "order" that the court of appeals "consider appellant's grounds of error" in a criminal case is superfluous, for such is its function, and according to Article 40.09, § 9 on direct appeal an appellate court is obliged to consider every ground of error it can "identify and understand," Ben-Schoter v. State, 638 S.W.2d 902 (Tex.Cr.App.1982), especially one that might cause reversal of a judgment of conviction.

Where not inconsistent Tex.Cr.App.Rule 211 incorporates Rules of Civil Procedure "to govern proceedings in the court of appeals in criminal cases." Pursuant to Rule 431, T.R.Civ.P. in effect when the San Antonio Court of Appeals rendered its decision, a brief may be amended or supplemented at any time when justice requires upon such terms as the court of appeals may prescribe [see now Rule 414(n), T.R.Civ.P. and prospective Rule 64(o ), T.R.App.P.]. A routine general remand should not foreclose availability of applicable rules of procedure. Thus, sufficiency of the evidence was properly made a ground of error in the court of appeals.

Finally, since review jurisdiction of this Court was invoked solely to correct a sua sponte finding of "fundamental error"--a disposition that caused the court of appeals to conclude further exercising its own jurisdiction over the cause--for this Court to issue an "order of remand" to restrict the court of appeals in renewed exercise of its own jurisdiction, power and authority would seem to be an impermissible and unwarranted abridgement of constitutional grant of same to courts of appeals by Article V, § 6, Constitution of Texas, as implemented by Articles 4.03, 44.24 and 44.25, V.A.C.C.P.

For these reasons we conclude that the court of appeals was within its authority in entertaining appellant's amended brief, and we turn now to consider the substance of its holding that the evidence was insufficient to support appellant's conviction.

The indictment alleged that appellant "knowingly cause[d] the death of an individual, Betty Lynn Bennett, by shooting her with a gun." Though already set out in both opinions by the court of appeals below, we briefly rehearse the evidence in the light most favorable to the jury's verdict. On the evening of September 22, 1977 the deceased, her husband and their three children were having a barbeque at a table outside of their trailer home in a trailer park in Carrizo Springs. Also present was a neighbor, Bill Rankin. Sometime during the course of the evening appellant drove up and asked the deceased's daughter, Sarah Gail Bennett, to obtain permission for appellant to join them at table. Sarah saw a rifle in the car, and appellant told her it was loaded, that it had no safety and that appellant wanted to shoot Rankin because he had previously shot appellant's dog. Nevertheless, appellant was allowed to join the group.

Sarah and the deceased soon retired to the trailer to do the dishes. Subsequently they heard an argument break out between appellant and Rankin about the dog that had been shot. Sarah watched from the door as appellant approached her car, retrieved the rifle and leaned over the trunk of the car, pointing the rifle toward the trailer. Although no witness could testify positively that appellant was aiming at Rankin, Rankin himself testified he was somewhere between the car and trailer, with his back to appellant. Sarah beckoned to the deceased to come to the door, and as they looked on appellant fired. The bullet struck the deceased in the head, killing her.

In its charge to the jury the trial court authorized the jury to convict appellant upon a finding that she "did ... knowingly cause the death of an individual, Betty Lynn Bennett, by shooting her with a gun." Immediately thereafter appears in the charge an abstract statement of the law of transferred intent as defined under § 6.04(b)(2), supra. Nowhere in the charge was the law of transferred intent applied to the facts that were developed at trial. See, e.g., P. McClung, Jury Charges For Texas Criminal Practice (1985 ed.), at pp. 222-23. Neither appellant nor the State...

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