Chapter 19
Criminal Homicide
19.12 Instruction—Capital Murder—Murder of More than One Person
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of capital murder.
Relevant Statutes
A person commits the offense of capital murder if the person intentionally or knowingly causes the death of an individual and murders more than one person [during the same criminal transaction/during different criminal transactions but pursuant to the same scheme or course of conduct].
[Include the following if an instruction on causation is appropriate but no issue of concurrent causation is raised by the facts.]
A person causes the death of another if, but for the person’s conduct, the death of the other would not have occurred.
[Include the following if the facts raise an issue concerning concurrent causation.]
A person causes the death of another if, but for the person’s conduct operating either alone or concurrently with another cause, the death of the other would not have occurred, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the person was clearly insufficient.
Definitions
Intentionally Causing the Death of an Individual
A person intentionally causes the death of an individual if the person has the conscious objective or desire to cause that death.
Knowingly Causing the Death of an Individual
A person knowingly causes the death of an individual if the person is aware that his conduct is reasonably certain to cause that death.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the death of [name] [insert specific allegations, e.g., by shooting [name] with a gun];
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the death of [name(s)] [insert specific allegations, e.g., by stabbing [name(s)] with a knife]; and
- [both/all] murders were committed [during the same criminal transaction/during different criminal transactions but pursuant to the same scheme or course of conduct].
[Include the following if the jury was instructed in the relevant statutes unit on concurrent causation.]
The state has the burden of proving that the defendant caused the death of name. To prove that the defendant caused the death of name, the state must show, beyond a reasonable doubt, that either—
- [concurrent cause] did not contribute to causing the death of [name];
- [concurrent cause] was clearly insufficient, by itself, to cause the death of [name]; or
- the conduct of the defendant was clearly sufficient to cause the death of [name] regardless of [concurrent cause].
[Continue with the following.]
You must all agree on elements 1, 2 and 3 of the offense of capital murder listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2 and 3 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, all three elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Transferred Intent in Texas Penal Code Section 19.03(a)(7) Situations. Applying transferred intent to section 19.03(a)(7) situations may require modification of the instructions to comply with the holding of Ex parte Norris, 390 S.W.3d 338 (Tex. Crim. App. 2012). A person is criminally responsible for causing a result if the only difference between what occurred and what he desired, contemplated, or risked is that a different offense was committed or a different person or property was injured, harmed, or otherwise affected. Tex. Penal Code § 6.04(b); Norris, 390 S.W.3d at 339–40 (discussing transferred intent). To meet section 19.03(a)(7) requirements, the state must prove one of two things. First, it may prove the defendant had the intent to kill at least two other persons. Second, it may prove the defendant engaged in two or more “discrete instances of conduct,” each committed with the intent to kill another person. In the second situation, the state’s evidence can be sufficient even if the defendant during each of the instances of conduct intended to kill the same person. This would be the case, for example, if during the first instance of conduct the defendant intended to kill a particular person but did not succeed in killing that person, unintentionally killing another individual instead, and then during the second instance of conduct intended to kill the same particular person targeted during the first instance of conduct and succeeded in doing so.
Need for Unanimity on Predicate Murder Victim. The commission of at least one murder in addition to the predicate murder, is the aggravating circumstance required by section 19.03(a)(7). Ordinarily, the indictment for section 19.03(a)(7) murder will identify one victim as the predicate victim, that is, the victim who must be proved to have been killed in a murder as provided for in section 19.02(b)(1). This predicate victim will be distinguished from the additional victim who must have been murdered by the defendant during the same transaction, scheme, or course of conduct. If the indictment alleges more than one additional victim, the jury must find that at least one person in addition to the predicate victim was murdered, but it need not unanimously agree on which additional person. In Saenz v. State, 451 S.W.3d 388 (Tex. Crim. App. 2015), the jury charge made it possible for the jurors to convict without agreeing that any one particular person was murdered by the defendant. Saenz holds that the jury instructions must require the jury to unanimously agree on one victim as the predicate victim, even though the jurors need not agree on which of the other victims named in the indictment is the additional victim triggering section 19.03(a)(7). Saenz, 451 S.W.3d at 391–92. Thus, for example, even if the indictment alleges that the defendant killed two or more persons during the same transaction, scheme, or course of conduct, the jury charge must require that the jury be unanimous as to the predicate victim.
Comment
Murder of more than one person is prohibited by and defined in Tex. Penal Code § 19.03(a)(7). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03.
Under the statute, one murder must be committed intentionally or knowingly as demanded by Tex. Penal Code § 19.02(b)(1). The additional killing or killings do not appear to have to be murder under section 19.02(b)(1) but can be murder under sections 19.02(b)(2) or (3). The practice is to allege that both or all killings were intentional or knowing, so the instruction is so drafted. If the indictment alleges the additional killings are murder for a reason other than being intentional or knowing, the instruction must be modified to accommodate this.