Aguirre v. State

732 S.W.2d 320, 1987 Tex. Crim. App. LEXIS 621

• Court: Court of Criminal Appeals of Texas
• Decided: July 1, 1987
• Docket: 62033
• Status: Published

Opinions

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

1 . The judgment of the trial court adjudicates appellant guilty of the offense of murder "as charged in the first and third paragraphs of the indictment...," and the sentence contains a like recitation. In his sixth ground of error appellant asserts the quoted finding by the trial court renders the judgment and sentence void. The recitation is erroneous in that it does not conform to the verdict rendered by the jury, Article 42.01, § 1, paras. 8 and 9, V.A.C.C.P., and when we have the necessaiy data and evidence in the record the Court is authorized by Article 44.24, id., to reform a judgment and sentence in a proper case so as to conform them with the verdict of the jury. Knight v. State, 581 S.W.2d 692, 694 (Tex.Cr.App.1979). However, since we must sustain one of appellant’s grounds of error and reverse the judgment, this is not a proper case for reformation.

2 . Easter did observe that "the crime of injury to a child is not a lesser included offense to the crime of murder," whereas in Garrett “the aggravated assault was a lesser included offense in the homicide.” When testing fundamental sufficiency of a felony murder indictment to allege an offense, however, that perceived difference is of little moment. So long as the underlying offense is a felony other than voluntary or involuntary manslaughter, the crux of felony murder under § 19.02(a)(3) is killing by committing or attempting to commit "an act clearly dangerous to human life” in the course of furtherance of the underlying felony or in immediate flight therefrom. Of course, as in Garrett, it will often be the case that the homicide is committed “while the felon is engaged in highly dangerous conduct," Practice Commentary following § 19.-02, but nothing in the statute requires that the conduct constitute a lesser offense included in homicide.

3 . In his first and second grounds of error appellant challenges sufficiency of evidence to support a conviction under the first paragraph of the indictment, contending there is no evidence that he "intentionally and knowingly” caused the death of his daughter. The State argues that when he fired through the door appellant intended to kill his former wife and that felonious intent in law transferred over to the actual slaying of the child. The trial court charged the jury on causation pursuant to V.T.C.A. Pensil Code, § 6.04(b)(2). For present purposes we are unable to say the evidence is not sufficient to support that theory of criminal responsibility.

In his third and fourth grounds of error appellant challenges sufficiency of the evidence to support his conviction under the second paragraph of the indictment. Given our disposition of his fifth ground of error and the likelihood of retrial we need not determine whether the evidence was sufficient to show the fair market value of the damaged property.