Garrett v. State

749 S.W.2d 784, 1988 Tex. Crim. App. LEXIS 69, 1986 WL 60

• Court: Court of Criminal Appeals of Texas
• Decided: April 20, 1988
• Docket: 642-83
• Status: Published

Opinions

OPINION ON APPELLANT’S AND STATE’S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

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).

STATE’S PETITION

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, Y.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 voiced any objection to this (or any other) deficiency in the charge; nor are there special requested instructions from either party pursuant to Art. 36.15, Y.A.C.C.P. in the record.

En route to finding that this omission did not constitute fundamental error, this Court observed:

A charge on transferred intent is by its nature favorable to the State and detrimental to the defendant. With the provisions of Sec. 6.04(b)(4) omitted from the charge, the prosecution is presented with the greater burden of proving a ‘knowing’ act in which the defendant was aware that her conduct was reasonably certain to cause the actual result rather than merely the desired result. V.T.C.A. Penal Code, Sec. 6.03(b).”⁴

Garrett v. State, 642 S.W.2d at 781. Seizing upon this language the court of appeals concluded that the State had failed to sustain the greater burden of proving a knowing killing of the deceased in this cause.

The State’s second argument is that the court of appeals erred in interpreting our opinion on the State’s first petition for discretionary review as holding that under the charge as given the jury was not authorized to convict appellant on a theory of transferred intent. Yet, while it is true that was not the holding of our opinion, that conclusion nonetheless inevitably follows from what was observed. The court of appeals relied on Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982), where it was determined that appellate courts should “review the sufficiency of the evidence in a light most favorable to the verdict by comparing the evidence to the indictment as incorporated into the charge.” Id., at 715. Here the theory of murder incorporated in the paragraph authorizing the jury to convict did not allow for a guilty verdict based upon a finding that appellant, while desiring, contemplating or risking the death of Rankin, committed an act which resulted in the death of the deceased, as was clearly the theory propounded by the State in its presentation of the evidence.⁵ Rather, the jury was required to find that appellant was aware her conduct in discharging the rifle was reasonably certain to cause the death of the deceased. Section 6.03(b), supra. If it did not wish to shoulder this particular burden of proof it was incumbent upon the State to bring the discrepancy to the attention of the trial court for correction; otherwise we must assume the State acquiesced in the authorization of the jury to convict only on the theory contained in the charge. Benson, supra; Ortega v. State, 668 S.W.2d 701, at 705, n. 10 (Tex.Cr.App.1983) (Opinion on original submission); Boozer v. State, 717 5.W.2d 608 (Tex.Cr.App.1984) (Pending on State’s motion for rehearing).⁶ The court of appeals was correct in concluding that sufficiency of the evidence must be measured against that theory of murder which was submitted to the jury, viz., that appellant knowingly caused the death of the deceased.

Finally the State argues that the evidence is sufficient to prove a knowing killing of the deceased, and that the court of appeals erred in holding it was not. In support of its argument the State cites cases decided before enactment of the 1974 Penal Code, viz., Canedy v. State, 507 S.W.2d 743 (Tex.Cr.App.1974); Davis v. State, 106 Tex.Cr.R. 300, 292 S.W. 220 (1927); Salisbury v. State, 90 Tex.Cr.R. 438, 235 S.W. 901 (1921); Banks v. State, 85 Tex.Cr.R. 165, 211 S.W. 217 (1919). Upon examination of these same cases the court of appeals found “that without exception they are dependent upon a finding that the defendant possessed the requisite knowledge or the conviction is premised upon a theory not available in support of the instant jury verdict.” Garrett v. State, 656 S.W.2d at 101. We agree with the latter part of this finding, as our exegeses of these cases in the margin will show.⁷

The record is devoid of proof of any animosity between appellant and the deceased. Indeed, by all accounts they met for the first time on the night of the offense. On the other hand the record does show appellant had expressed an intent to shoot Rankin, that an argument had erupted between these two, and that appellant then obtained a rifle and shot it in Rankin’s direction. The court of appeals found significant that the record does not establish appellant “knew” the deceased was in the trailer when she fired. But whether or not she knew deceased was in the trailer, we do not believe the evidence can support a finding that she acted with an awareness that death of deceased was reasonably certain to result. Certainly there existed a substantial risk that someone in the trailer would be killed. But there is nothing in the evidence to indicate how large the trailer was or whether appellant had any idea in what part of the trailer deceased was located when the rifle was fired. The Practice Commentary to § 6.03, supra, gives as an example of “recklessness” as defined in subsection (c), “plinking at beer cans in a lake while water skiers go by in the center of the lake.” Absent availability of the law of transferred intent in this case, the facts support no more than a finding of “conscious risk creation” very similar to the example given in the Practice Commentary.⁸

We conclude therefore that the court of appeals was correct in holding the evidence insufficient to support a verdict that appellant “knowingly” caused the death of deceased, and proceed to examine appellant’s petition for discretionary review.

APPELLANT’S PETITION

Appellant raises several contentions relevant to the observation of the court of appeals, noted ante, that “[t]he State is not precluded from retrying appellant on a lesser included offense of murder.”

Initially appellant argues that the court of appeals erred in authorizing, if it did, a retrial upon some alternative theory of the offense of murder under V.T.C.A. Penal Code, § 19.02, and maintains that one theory of murder cannot constitute a lesser included offense of another theory of murder, citing V.A.C.C.P., Arts. 37.09 and 37.-14, and Day v. State, 532 S.W.2d 302, 315-16 (Tex.Cr.App.1976) (Opinion on rehearing). Because we do not believe the court of appeals’ observation can be construed in such a manner, we do not address this contention. It seems clear to us from the cases cited by the court of appeals that reprosecution was held to be permissible only for lesser included offenses of murder, not for murder itself, under any theory found in § 19.02, supra.

Additionally appellant contends that re-prosecution for any lesser included offense in this cause is barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, and invites us to overrule Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978) (Opinion on rehearing) and its progeny, including the cases relied on by the court of appeals in observing that appellant could be tried again on a lesser included offense, viz., Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979); Ex parte Harris, 600 S.W.2d 791 (Tex.Cr.App.1980); Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980); Taylor v. State, 637 S.W.2d 929 (Tex.Cr.App.1982), to the extent they may be read to allow such reprosecution.

Moss, supra, involved a prosecution for burglary of a habitation. A panel of this Court on original submission found the evidence insufficient to establish burglary of a habitation, but nevertheless, finding that the evidence did establish the lesser included offense of burglary of a building, reformed the judgment and sentence to reflect conviction for that offense, and affirmed. On motion for rehearing, the en banc Court determined it could not properly reform the judgment and sentence.⁹ However, though conceding he could not be reprosecuted for the greater offense of burglary of a habitation, under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), rather than reversing Moss’ conviction and ordering entry of an acquittal, the Court remanded the cause with the observation that nothing in those cases would prevent retrial for the lesser included offense which had been supported by the evidence at trial. In fact, as Presiding Judge Onion noted in his dissent, the Supreme Court expressly preserved this question, in footnote 7 of Greene v. Massey, supra. Thus, while Burks and Greene do not “prevent” the holding so summarily arrived at in Moss, neither do they support it. We proceed, then, to the “reasoning” of the matter called for by Presiding Judge Onion and two others.

At the outset it should be emphasized that our analysis does not involve application of the doctrine of collateral estoppel as that is embraced by the Double Jeopardy Clause. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Surely an appellate finding, such as that in Moss, that the evidence fails to sustain a conviction for lack of proof of an aggravating element, but would have been sufficient to establish the lesser, nonaggravated offense cannot bar reprosecution of the nonaggra-vated offense on the ground that some critical element of proof as to that offense has been decided against the State in the first prosecution. Rather, our analysis begins and ends with the literal language of the Fifth Amendment, that no person “be subject for the same offence to be twice put in jeopardy of life or limb.”

The Fifth Amendment prohibition against double jeopardy was made fully applicable to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Thus the State is subject to the three separate guarantees recognized to be embodied in the Double Jeopardy Clause, viz.: protection against reprosecution for the same offense following an acquittal, against reprosecution for the same offense following a conviction, and against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

In Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) the Supreme Court observed:

“The primary goal of barring reprosecution after acquittal is to prevent the State from mounting successive prosecutions and thereby wearing down the defendant. As was explained in Green v. United States, 355 U.S. 184, 187-188, 2 L.Ed.2d 199, 78 S.Ct. 221, 77 Ohio L.Abs. 202, 61 A.L.R.2d 1119 (1957):

‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ”

Id., 78 S.Ct. at 1813, 2 L.Ed.2d at 324.

It was established beyond peradventure in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) that upon conviction or acquittal in a trial court for a given offense the Double Jeopardy Clause bars retrial for the “same” offense, and that determination of whether a second statutorily defined offense, different from that upon which the accused was originally tried, is nevertheless the “same” so as to bar subsequent prosecution for that offense is made through application of the rule stated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

“... that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”¹⁰

See Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982). The question before us now, left open by Burks and Greene, is whether the Double Jeopardy Clause also bars reprosecution for a lesser, “same” offense, applying the Blockburger test, when acquittal for the greater offense follows an appellate determination that the evidence was legally insufficient to support that conviction.

Distinguishing reversals for “trial error,” after which retrial is permissible, from reversals following an appellate finding of insufficient evidence, the Supreme Court in Burks opined:

“[W]hen a defendant’s conviction has been overturned due to a failure of proof at trial ... the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble, [footnote omitted] Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.” (Emphasis in the original.)

437 U.S. at 16, 98 S.Ct. at 2149-50, 57 L.Ed.2d at 12-13. Thus the Court concluded that the State cannot constitutionally reprosecute a defendant for the identical statutory offense following an appellate finding of insufficient evidence.

We fail to perceive anything inherent in the reasoning of the Supreme Court in Burks to preclude application of the Block-burger test to determine whether reprose-cution for the “same” offense would be barred under the Double Jeopardy Clause following an appellate reversal for insufficient evidence. Since a jury’s verdict of acquittal at the trial level bars retrial of any lesser included offense which constitutes the “same” offense under Blockburger, as Brown v. Ohio, supra, clearly establishes, it is likewise difficult to conceive any greater interest society has in reprose-cuting a defendant for that lesser included offense simply because it is an appellate court that has found the evidence lacking to support conviction for the greater offense. That the same evidence may well prove sufficient to support a verdict of guilt of the lesser offense does not provide a justification for the State to try the defendant a second time for the “same” offense in order to obtain a conviction.

Moreover, none of the recognized exceptions to the rule in Brown appears to apply to this cause. That any event necessary to establishing a lesser included offense could have occurred or been discovered since appellant’s first trial, even if conceptually possible, is highly unlikely. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). Nor did any action on appellant’s part prevent prosecution of greater and lesser offenses within a single proceeding, as was the case in Jeffers.¹¹ Though retrial upon the identical statutory offense may be permitted, even absent application of the “manifest necessity” standard, when mistrial is declared at the appellant’s behest, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), this exception clearly is not applicable here. Lastly there is the concept of continuing jeopardy, whereby an accused may be tried a second time following appellate reversal on the basis of trial error of a conviction for a lesser offense from a jury which “impliedly” acquitted him of the greater offense. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). As to the lesser offense, jeopardy has “continued” in that the accused has asserted some defect in the first prosecution, not implicating sufficiency of the evidence to establish that lesser offense. Balancing the fact of the accused’s “limited waiver” of his interest in not being retried against “fairness to society,” and “lack of finality” in the proceeding, id., 398 U.S. at 329, n. 4, 90 S.Ct. at 1761, n. 4, 26 L.Ed.2d at 305, n. 4, the Court has held the accused subject to reprosecution in this limited context for the lesser included offense.

In the instant cause the proceeding was all but final as soon as the court of appeals determined that the evidence was insufficient to support the conviction for murder, subject only to this Court’s discretionary power to review that determination. Because the jury expressly found appellant guilty of murder in its verdict, neither this Court nor the court of appeals is authorized to reform the judgment and sentence to reflect conviction for a lesser included offense under Article 44.24(b), V.A.C.C.P., since “reformation of judgment and sentence may be done only to cause those instruments to reflect the true finding of the fact finder when such a finding is reflected in the verdict or, in a bench trial, the pronouncement of the court’s finding.” Milczanowski v. State, 645 S.W.2d 445, 447 (Tex.Cr.App.1983). All that remains upon remand is to enter judgment of acquittal. But for this essentially ministerial act, there is no lack of finality in the judgment, and hence no basis to apply continuing jeopardy.

What, then, of fairness to society? It is true that when an appellate court determines insufficiency of the evidence and orders entry of a judgment of acquittal the jury is effectively deprived of the opportunity to consider any lesser included offenses raised by the evidence and properly submitted in the court’s charge.¹² But this does not mean the State has not had its “one fair opportunity to offer whatever proof it could assemble.” Even if the evi-dentiary deficiency in the proof of the greater offense lies merely in a failure to prove the additional “facts required to establish the commission of the [greater] offense,” or the greater culpable mental state, or the proof establishes only an attempt at commission of the greater offense, or a less serious injury or risk of injury than that required of the greater offense, Article 37.09, Y.A.C.C.P., in nevertheless having proceeded on the greater offense, as well as any properly authorized lesser included offenses, the State has risked the possibility of obtaining a verdict on the greater offense, which proves, on appellate review, to be unsupported in the evidence. Having thus overreached, as it were, the State cannot be heard to complain that it has not had its one bite at the apple. No consideration of “fairness to society” can justify the additional “embarrassment, expense and ordeal” to an accused under these circumstances.

Finally, it would be anomalous to hold that in asserting his Fourteenth Amendment right to be convicted only upon a verdict for which every essential element has been proven beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), appellant has “waived” his Fifth Amendment right to be free of the onus of successive prosecutions for what constitutes the same offense.

We therefore hold that following an appellate reversal of a conviction on the basis of insufficient evidence to support the verdict, the Double Jeopardy Clause bars re-prosecution for any lesser included offense which is the “same” as the greater, acquitted offense under the test in Blockburger. To the extent that they conflict with our holding today, Moss v. State, supra, and its progeny are overruled.¹³

Of course, we do not know for what statutory offense, if any, the State may attempt to indict appellant subsequent to our ruling in this cause. Therefore, resolution of whether a particular offense is the “same” as that for which we now order entry of acquittal must await, at the earliest, indictment or information by the State and plea in bar by appellant, or pretrial habeas corpus action. See Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982).

The judgment of the court of appeals is affirmed in part and reversed in part. The cause is remanded to the trial court for entry of a judgment of acquittal.

ONION, P.J., concurs in result. W.C. DAVIS, McCORMICK and WHITE, JJ., dissent.

1 . We do not now pass on the question whether the error perceived by the court of appeals would constitute fundamental error under our decision in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985).

2 . In several of those opinions Article 44.37, V.A. C.C.P., is cited as conferring authority on this Court summarily to grant a petition for discretionary review and to remand the cause for further consideration. Yet, in context of articles immediately surrounding that particular statute, "orders on appeal" relate only to habeas corpus proceedings; see also decisions annotated under Article 44.37, supra.

3 .Thus, that this Court denied appellant’s motion for rehearing on the State's first petition for discretionary review does not mean the Court passed, expressly or implicitly, on the merits of the claim of insufficient evidence made for the first time therein. Ordinarily this Court refuses review of grounds not raised or entertained in the court of appeals, Lambrecht v. State, 681 S.W.2d 614 (Tex.Cr.App.1984).

4 . Section 6.03(b), supra, provides:

"A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result."

(Emphasis in the original. All other emphasis supplied by the writer of this opinion unless otherwise indicated.)

5 , The statement of facts does not include the final arguments to the jury and thus we do not know what theory the State argued the evidence supported.

6 . We are not persuaded that because the court’s charge abstractly defined transferred intent in a paragraph (designated "3-A") appearing immediately after the paragraph applying the law of murder to the facts of the case (designated “3”) the jury was therefore authorized to convict appellant upon that theory. In no way can the application paragraph (which begins, incidentally: "Now bearing in mind the foregoing instructions be construed to refer to the abstract definition, so even “reading the charge as a whole,” see Brown v. State, 716 S.W.2d 939, (Tex.Cr.App.1986); Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982) (Opinion on rehearing), would not inform the jury that it could convict appellant on that theory. Mere juxtaposition does not amount to authorization.

7 . In Banks v. State, supra, the defendant was convicted of murder and sentenced to death. In essence the evidence showed that defendant and another, while walking along a dirt road running adjacent to a railroad track, fired pistols into a passing train and that a brakeman was killed by a bullet from the pistol the defendant claimed to have fired. The only contention on appeal was that the evidence failed to establish that the defendant was "guilty of that character of homicide [viz., murder with malice] which should be punished by the extreme penalty of death." Id., 211 S.W. at 217. However, the murder statutes had been amended, by Acts 1913, 33rd Leg., p. 238, ch. 116, to dispense with degrees of murder, and to create a single range of punishment, including death, applicable to any unlawful killing "with malice aforethought,” regardless of whether that malice was express or implied. All that Banks may properly be read to establish, then, is that under the statute then proscribing murder an accused did not have to intend the death of the specific deceased (or of anyone at all) for malice to be implied, and hence, for a penalty of death to be imposed. To this end the Court in Banks observed:

“One who deliberately uses a deadly weapon in such reckless manner as to evince a heart regardless of social duty and fatally bent on mischief, as is shown by firing into a moving train upon which human beings necessarily are, cannot shield himself from the consequences of his acts by disclaiming malice. Malice may be toward a group of persons as well as toward an individual. It may exist without former grudges or antecedent menaces. The intentional doing of any wrongful act in such manner and under such circumstances as that the death of a human being may result therefrom is malice."

Id., 211 S.W. at 217. This holding was in keeping with the common law notion that malice is implied, and hence murder exists, whenever a death occurs as a result of some willful act by the accused under circumstances where he knows the act is likely to cause death or serious bodily injury. See generally, Stumberg, Criminal Homicide in Texas, 16 Texas L.Rev. 305, 312 (1938). A similar holding may be found as early as 1881, in Aiken v. State, 10 Tex.App. 610, although there the conviction was for murder in the second degree, and as such a penalty of death could not be, and was not, assessed.

Both Davis, supra, and Salisbury, supra, involved the firing of shots which defendants claimed were meant as warnings, with no attendant intent to kill anyone. Following Banks, the Court in each case held that no specific intent to kill was necessary to establish murder where one "shoots wantonly and recklessly into a car or building known to him to be occupied.” Salisbury, supra, 211 S.W. at 902. It must be remembered that when these cases were decided statutory law proscribed murder (that is, killing "with malice aforethought,” Acts 1913, 33rd Leg., p. 238, ch. 116; P.C., Art. 1256 (1925)), manslaughter (more or less the equivalent of our present voluntary manslaughter, except that certain events which were or were not deemed to constitute "adequate cause” were statutorily defined; P.C., Arts. 1128-1139(1911); P.C. Arts. 1244-1255 (1925)), and negligent homicide (P.C. Arts. 1113-1127 (1911); P.C. Arts. 1230-1243 (1925)), which was death caused by "negligence and carelessness” (P.C. Art. 1114 (1911); P.C. Art. 1231 (1925)), but with "no apparent intention to kill" (P.C. Art. 1118 (1911); P.C. Art. 1234 (1925)). Thus, what we now recognize as involuntary manslaughter under V.T.C.A. Penal Code, § 19.05(a)(1), if it was proscribed at all, had to fall under one of these categories. It seems natural then that the Court should find implied malice, and hence murder, when presented with evidence of intentional conduct which, while not meant to cause any particular death, nevertheless evinced "such utter and reckless disregard of life as shows a man to be an enemy to all mankind." Aiken v. State, supra, at 617. That the rule is reiterated in Canedy v. State, supra, only goes to disprove the thesis put forward in Stumberg, supra, at 312-318, that when the Legislature amended P.C., Art. 1256 (1925) by Acts 1927, 40th Leg., p. 412, ch. 274, sec. 1, to redefine murder as "voluntarily killing" another, the intent was to include only intentional killings within the parameters of that offense.

The long and short of it is that these cases do not involve, nor do they prove instructive on, the narrower question of whether on their facts a knowing murder was committed, as that term is defined in § 6.03(b) of the 1974 Penal Code. That a reckless disregard for life may have constituted malice under former penal codes does not mean it may also stand in place of "knowledge" so as to support a showing of murder under present § 19.02(a)(1).

8 . Even if we were to hold that Banks, supra, is authority for the proposition that "plinking” at a passing train and thereby causing the death of some person on board unknown to the actor constitutes a "knowing” killing, the facts of the instant case are distinguishable. Here the evidence does not show that appellant intended to shoot at the trailer with utter disregard for the lives of those inside. Rather, the evidence suggests only that she intended to shoot at Rankin. That she also was aware, or should have been aware, of the substantial and unjustifiable risk this act posed towards those situated behind Rankin could only make her guilty of knowingly killing one of those, if she did, by a theory of transferred intent under § 6.04(b)(2), supra. Since that theory was not given to the jury, and no proper charge was given authorizing conviction for the lesser included offense of involuntary manslaughter under § 19.05(a)(1), supra, see n. 12, post, and none at all for negligent homicide under V.T.C.A. Penal Code, § 19.07, the State is left without a leg to stand on.

9 . On motion for rehearing before the Court en banc Moss argued that because a jury had assessed his punishment it was improper for this Court to reform the judgment and sentence as it had done in Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976), wherein the trial court had assessed punishment. Speaking through Judge Dally, we held it improper for this Court to reform the judgment regardless of whether judge or jury had assessed the punishment, since either way this Court would have to indulge the presumption that the same term of punishment would be assessed even though the range of punishment for the lesser offense was lower. Oddly enough, the Court then observed that in Jones, supra, "we should have remanded the cause to the trial court to reassess punishment.” Under Burks and Greene a defendant tried before a trial judge should be no less entitled to an acquittal upon an appellate finding of insufficient evidence to support the verdict than a defendant found guilty by a jury on what is determined on appeal to be insufficient evidence.

10 . Expressly reserved in Brown v. Ohio, supra, was the question "whether the repetition of proof required by the successive prosecutions against Brown would otherwise entitle him to the additional protection offered by Ashe [v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)] and [In re] Nielsen [131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889)]." 432 U.S. at 166, n. 6, 97 S.Ct. at 2226, n. 6, 53 L.Ed.2d at 195, n. 6. See Ex parte McWilliams, 634 S.W.2d 815 (1982) (Clinton, J., dissenting to denial of leave to file appellant’s motion for rehearing).

11 . To be remembered, however, is that “it is settled law in this State that regardless of allegations in a charging instrument the consequence of a general verdict of guilt, as till predecessors to Article 37.07, V.A.C.C.P., mandated, is but one conviction and one punishment. Drake v. State, [686 S.W.2d 935 (Tex.Cr.App.1985) Ex parte Siller, 686 S.W.2d 617 (Tex.Cr.App.1985). Thus, presumably what was found in Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) not to violate prohibition against double jeopardy, viz., for the State to proceed to trial on two counts of an indictment after appellant had plead guilty to two other counts of the same indictment which charged lesser included offenses, would nevertheless be prohibited in Texas as a matter of state common law, “soon incorporated into statutory law for criminal actions.” Siller, supra, at 619.

12 . In the instant cause the lesser included offenses of voluntary and involuntary manslaughter were charged to the jury, albeit in defective forms. Like the paragraph applying the law of murder to the facts, the paragraph applying the law of voluntary manslaughter failed to apply transferred intent. And though the jury was supplied with the statutory definition of "reckless” in the abstract statement of the law of involuntary manslaughter, in applying that law to the facts, the charge again required the jury to find appellant "knowingly” caused the death of the deceased. Thus, under every paragraph authorizing conviction in this cause appellant would have to be acquitted, since, as we have affirmed ante, the evidence did not establish a knowing killing of the deceased.

13 . In Granger and other followings of Moss, for insufficient evidence that a homicide was committed in the course of committing robbery the Court orders an acquittal of capital murder, but then gratuitously states that appellant may be "retried for the lesser included offense of murder," citing Granger. However, Granger and its precursors back to Moss are long on rote but woefully short on analysis. As we have pointed out ante, the holding on rehearing in Moss is based solely on its own ipse dixit that Burks and Greene do not "prevent" retrial for burglary of a building. Thus the Moss majority, over protests by Presiding Judge Onion joined by two others that its decision "should be made with reasoning, but the majority declines to reason,” simply ruled as it willed.

Moreover, because Moss and the others, particularly Granger, were decided before Me Williams, supra, the Court was not called on to examine principles of jeopardy law and the rule of Blockburger v. United States since adopted in McWilliams. In that sense Moss and progeny sire inapposite.

Given the McWilliams formulation and Brown v. Ohio, supra, therefore, it may no longer be correctly asserted generally that an appellant who is ordered acquitted of a greater offense for insufficient evidence may be tried for some specified lesser included offense, for we cannot know whether on trial of the latter the evidence will show that it is not the "same” offense as the former.