Price v. State

• Decision Date: 22 September 1993
• Docket Number: No. 0322-93,0322-93
• Parties: John Wiley PRICE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 913

861 S.W.2d 913

John Wiley PRICE, Appellant, v. The STATE of Texas, Appellee.

No. 0322-93.

Court of Criminal Appeals of Texas En Banc.

Sept. 22, 1993.

Rehearing denied Sept. 22, 1993.

James D. McCarthy, Phyllis A. Jackson and Ronald L. Goranson, Dallas, for appellant.

John Vance, Dist. Atty., Sue Korioth, Asst. Dist. Atty., Dallas, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Appellant's motion for rehearing on petition for discretionary review denied.

DISSENT TO REFUSAL OF APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The offense alleged is "criminal mischief" under V.T.C.A. Penal Code, § 28.03(a)(1) and (b)(2), viz:

"... [Appellant] did unlawfully, knowingly and intentionally damage tangible personal property, to-wit: a motor vehicle, without the effective consent of Stephani Barnes, and the amount of pecuniary loss caused by said damage was more than $20.00 but less than $200.00[.]"

Trial was to a jury which found appellant "guilty as charged in the information of the offense of criminal mischief in an amount of $20.00 or more, but less than $200.00." Tr. 80. ¹ The jury assessed punishment at a fine of $1,000.00 and confinement in the County Jail for 75 days. Tr. 82.

What thus appears to be a simple prosecution and straight forward conviction for "criminal mischief" is belied, however, by what the record reveals was a trial on a facile but flawed theory of "transferred intent."

I

A

Before the jury panel was seated in the courtroom appellant was arraigned on the information charging the offense of "criminal mischief" in Cause No. MB90-54983-G, and pleaded "not guilty." II S.F. 3-4. The trial judge then called for announcements in Cause No. MB90-34917-B, and both parties responding "ready," directed the prosecutor to read State's motion to proceed with adjudication of guilt in that cause, which motion is set out in the margin. ² The court "arraigned" appellant on the motion, to which he That done, the court took up "the only remaining matter prior to the selection of the jury." Then with all preliminary matters settled the jury was selected, empaneled and sworn, and the prosecutor read the information, to which appellant pleaded "not guilty." II S.F. 14-15. Of course, the motion to adjudicate guilt was not read to the jury before State called its first witness. See II S.F. 15-16.

                pleaded "not true to both allegations."   II S.F. 4-6
                

B

That witness is a photographer for the television station, the target of the protesters; he had videotaped the demonstration, including the alleged incident at issue. Several other witnesses testified to the instant incident, some as well to similar incidents involving themselves or others. As the court of appeals would conclude:

"The jury was the sole judge of the witnesses' credibility. Appellant's acts, words, and deeds were sufficient to show: (1) appellant's knowledge of the events, and (2) that he was aware of consequences of his acts. These same acts, words, and deeds show appellant intended to commit the act charged."

Price v. State, supra, at 4. ³

C

Apparently at some point in time before the parties rested and closed on the first phase of trial, the trial judge submitted a proposed charge and appellant reacted by filing six specially requested charges, and at the charge conference by dictating and filing requested charges numbered 7 and 8, all more or less defensive in nature. ⁴

Included in the proposed charge, to which appellant objected at length to no avail, and thus retained in the charge as given, were instructions on the theory of "transferred intent" based on the offense of "obstructing highway or other passageway" described in V.T.C.A. Penal Code, 42.03, and alleged in State's motion to adjudicate guilt in the prior cause, mentioned ante, at 1-2, n. 2. III S.F. 624-632, 634-635. They are at pages 3 and 11 of the court's charge, Tr. 67 and 76, and appended hereto.

D

On direct appeal appellant presented, among others, two points of error asserting Appellant now complains, inter alia, that the court of appeals "erred in holding that the doctrine of transferred intent applies in the circumstances of this case." PDR, ground for review one, 4-10. The State responds that the "trial court properly charged the jury on the theory of transferred intent as authorized by Tex.Penal Code Ann. § 6.04(b)," essentially reciting generally prior applications of the theory in other cases and characterizing appellant's contention as "novel, without authority [and] argument or rationale to explain [why] § 6.04 is uniquely inapplicable to Appellant's offense;" it does not address the opinion of the court of appeals. State's Reply to PDR, at 8-10.

the trial court erred in instructing the jury on the theory of transferred intent. The court of appeals examined his contentions, considered his arguments and overruled his points of error. Price v. State, supra, at 17-26. ⁵

In my judgment, we should grant appellant's motion for rehearing after PDR refused, and grant his petition for discretionary review to determine whether the legal reasons for the decision of the court of appeals comport with the concept of "transferred intent" the Legislature had in mind when enacting it. See Practice Commentary to § 6.04, as it relates to subsection (b). And, given that the court of appeals followed Bagsby v. State, 721 S.W.2d 567 (Tex.App.--Fort Worth 1986), no PDR, applying § 6.04(b) to "property crimes," we should take a look at it.

II

A

In this jurisdiction, prior to § 6.04(b) the doctrine of "transferred intent" was legislatively prescribed as follows:

"One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed."

Article 42, P.C. 1925; see also articles 43 and 44. ⁶ Thus the law transfers the mens rea of a contemplated but incomplete offense to the offense actually committed by mistake or accident; the rationale is that public policy demands that persons engaged in criminal activity not be exonerated "merely because they accidentally commit a different offense than originally contemplated." Sargent v. State, 518 S.W.2d 807, at 810 (Tex.Cr.App.1975). ⁷

Section 6.04(b) replaced article 42; it provides:

"(b) 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."

Thus the general rationale still at work is that an initial germane culpable mental state to commit a certain offense may be transferred to the offense in fact committed. ⁸ Yet, we must determine continuing viability of the proposition that criminal responsibility rests in an act done "through mistake or accident" resulting in "what actually occurred," and we should ponder the effect of a legislative prescription of alternative "results." ⁹

The first "result," subsection (b)(1), the commentators opine, "apparently was added out of an abundance of caution," because causal provisions in subsection (a) would ordinarily resolve the problem of criminal responsibility. Practice Commentary to § 6.04. However, in Honea v. State, 585 S.W.2d 681 (Tex.Cr.App.1979), recognizing that § 6.04 was derived from article 42, the Court stayed with the "well settled [rule] that one who, intending to commit a felony, accidentally commits another felony, is guilty of the felony actually committed," in that "[t]he intent to commit the contemplated felony transfers to the offense in fact committed." There because defendant clearly intended to rob the victim, who died as a result of likely suffocation from being bound gagged and placed face down on dusty barn floor during robbery, his acts resulted in aggravated robbery by causing serious bodily injury, (which by definition includes death). Id., at 684-685.

As to the second "result," the commentary explains that subsection (b)(2) was derived from former "constructive malice statutes" so that, for a classic example, "if D shoots with intent to kill V, but misses and unintentionally kills W, he is nevertheless guilty of murder[.]" That example applies only to the "different person" result mentioned in subsection (b)(2). ¹⁰

Here, however, neither the information nor charge of the court identifies any "affected" person other than Stephani Barnes. We are thus left with the sole remaining aspect of subsection (b)(2), i.e., that "different ... property was injured, harmed or otherwise affected."

B

The property alleged to have been damaged is the motor vehicle of Stephani Barnes; more specifically, the proof shows appellant bent and thereby damaged the windshield wipers on her van. So the "transferred intent" inquiry is whether such damage that "actually occurred" is different from what appellant "desired, contemplated, or risked." § 6.04(b)(2). ¹¹

However, the trial court did not put that issue to the jury. See application paragraph in appendix. Rather, the instruction authorized the jury to find that appellant intentionally or knowingly physically blocked with his person the Barnes' vehicle and further that:

"by attempting to physically block said motor vehicle [of Barnes] with his person, if he did, desired, contemplated, or risked that damage to the said motor vehicle ... would occur."

Then the instruction goes on to tell the jury that if it finds that appellant "did then and there damage ... a motor vehicle, without the effective consent of [Barnes], and [the Those instructions, to adapt a trite phrase, "put the horse of 'what he desired, contemplated or risked' in the cart of what 'actually occurred,' " effectively conveying to the...