Chapter 6
Culpability
6.10 Instruction—Transferred Intent—Different Offense
LAW SPECIFIC TO THIS CASE
[Insert relevant instructions for specific offense. The following example is for when the underlying offense is causing serious bodily injury to a child under Texas Penal Code section 22.04(a)(1).]
The state accuses the defendant of having committed the offense of causing serious bodily injury to a child by an act.
Relevant Statutes
[Insert relevant statutes and definitions units from charged offense. The following example is for a Texas Penal Code section 22.04(a)(1) charge.]
A person commits the offense of causing serious bodily injury to a child if he intentionally or knowingly by an act causes serious bodily injury to a child.
A person commits the different offense of causing some bodily injury to a child by an act if he intentionally or knowingly by an act causes bodily injury to a child. This offense is a lesser included offense of the offense of which the state accuses the defendant.
Transferred Intent
The state’s accusation is that the defendant intentionally or knowingly caused serious bodily injury to [name].
“Transferred intent” means a person is criminally responsible for causing a result if the only difference between what the person desired or contemplated and what actually occurred is that a different offense was committed.
This means that a person is criminally responsible for causing serious bodily injury to a child although the person did not intend or contemplate that the bodily injury be “serious” as long as the person intended or had knowledge that his conduct would cause any bodily injury to the child.
Mistake of Fact
The effect of transferred intent in this case may be affected by the defense of mistake of fact.
It is a defense to the offense of causing serious bodily injury to a child that the defendant through mistake formed a reasonable belief about a matter of fact and the mistaken belief negated the kind of culpability required for commission of the offense.
Here, if the defendant through mistake formed a reasonable belief that his conduct would cause bodily injury, but not “serious” bodily injury, he is not guilty of the offense charged.
If the defendant’s mistake of fact negates the kind of culpability required for the commission of the offense charged, the defendant may nevertheless be convicted of any lesser included offense of which he would be guilty if the facts had been as he believed.
Here, if the defendant through mistake formed a reasonable belief that his conduct would cause bodily injury but not “serious” bodily injury and as a result he is not guilty of the offense charged, he may be guilty of the lesser included offense.
Definitions
Bodily Injury
“Bodily injury” means physical pain, illness, or any impairment of physical condition.
Serious Bodily Injury
“Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Intentionally Causing Bodily Injury
A person intentionally causes bodily injury to another if it is the person’s conscious objective or desire to cause the bodily injury to another.
Knowingly Causing Bodily Injury
A person knowingly causes bodily injury to another if the person is aware that the person’s conduct is reasonably certain to cause the bodily injury to another.
Application of Law to Facts
[Include relevant application of law to facts unit from charged offense. The following example is for a Texas Penal Code section 22.04(a)(1) charge.]
You must determine whether the state has proved, beyond a reasonable doubt, the five elements of causing serious injury to a child. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], [insert specific allegations, e.g., struck [name] with his fist]; and
- the defendant by this act caused bodily injury to [name]; and
- the bodily injury caused by the defendant to [name] was serious bodily injury; and
- [name] was a child fourteen years old or younger; and
- the defendant acted either with the intent to cause serious bodily injury or with the knowledge that his conduct would cause serious bodily injury to [name].
You may find the state has proved elements 1, 2, 3, 4, and 5 listed above. In this event, you must find the defendant “guilty” of the charged offense of causing serious bodily injury to a child.
You may find the state has proved elements 1, 2, 3, and 4 listed above but that the state has not proved the defendant intended serious bodily injury to [name] or knew that serious bodily injury to [name] would occur. In this event, you must next determine whether the state has proved the defendant acted with intent to cause some bodily injury to [name] or knew that some bodily injury to [name] would occur. If you find the state has not proved this, you must find the defendant “not guilty.”
If you find the state has proved the defendant acted with intent to cause some bodily injury to [name] or knew that some bodily injury to [name] would occur, you must proceed to the next step. This step requires you to determine whether, following the instructions on mistake of fact in the following paragraphs, the state has proved only the culpable mental state required for the lesser included offense of causing any bodily injury to a child for the reason explained in these two paragraphs of these instructions.
You must consider the evidence that the defendant acted under a mistake of fact—that he mistakenly believed his actions would cause only non–serious bodily injury. This may establish that the defendant is not guilty of the charged offense of causing serious bodily injury to a child but that the state may nevertheless have proved the defendant guilty of the lesser included offense of causing injury to a child.
You must find the defendant “not guilty” of the charged offense of causing serious injury to a child but “guilty” of the lesser included offense of intentionally causing bodily injury to a child if you find the state has proved elements 1, 2, 3, and 4 listed above and you further find both that—
- the state has proved only intent to cause non–serious bodily injury or knowledge that non–serious bodily injury would occur; and
- the state’s evidence proves only intent to cause non–serious bodily injury or knowledge that non–serious bodily injury would occur because that evidence shows the defendant mistakenly but reasonably believed his actions would not cause serious bodily injury.
You must find the defendant “guilty” of the charged offense of causing serious bodily injury to a child if—
- you find the state has proved elements 1, 2, 3, and 4 listed above; and
- you find the state has proved the defendant acted with intent to cause any bodily injury to [name] or knew that some bodily injury to [name] would occur; and
- you do not find the state has proved only the culpable mental state required for the lesser included offense of causing any bodily injury to a child for the reason explained in these last two paragraphs of these instructions.
To repeat and summarize, you are to find the defendant “guilty” of the lesser included offense of causing injury to a child if you determine the state has proved, beyond a reasonable doubt, five elements. Those elements are that—
- the defendant, in [county] County, Texas, on or about [date], [insert specific allegations, e.g., struck [name] with his fist]; and
- the defendant by this act caused bodily injury to [name]; and
- the bodily injury caused by the defendant to [name] was serious bodily injury; and
- [name] was a child fourteen years old or younger; and
- the defendant acted with intent to cause non–serious bodily injury or knowledge that non–serious bodily injury would occur because the defendant mistakenly but reasonably believed his actions would not cause serious bodily injury.
You must all agree on all five elements listed above for either the charged offense or the lesser included offense.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more elements listed above for the respective offense, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, all elements listed above for the respective offense, 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.]
Comment
The role of transferred intent in criminal liability is addressed in Tex. Penal Code § 6.04(b).
The above instruction is based on an indictment for causing serious bodily injury to a child under Tex. Penal Code § 22.04(a)(1). The Committee chose this example in light of issues raised by Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007), discussed below. The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8), and the definition of “serious bodily injury” is from Tex. Penal Code § 1.07(a)(46). The court will need to modify the instruction depending on what the accusation charges.
Texas Penal Code section 6.04(b)(1) creates an unusual and broad kind of “transferred intent”: “A person is . . . criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that . . . a different offense was committed . . . .”
This provision continued and expanded the law that previously had been embodied in article 42 of the 1925 Penal Code:
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.
Vernon’s Ann. P.C. art. 42 (1925).
Penal Code section 6.04(b)(1) is consistent with felony murder under section 19.02(b)(3) and perhaps provides something of a conceptual basis for felony murder. Felony murder, however, is fully provided for in section 19.02(b)(3), and there is no need for a felony murder instruction to incorporate or even refer to section 6.04(b)(1).
When and how section 6.04(b)(1) applies—apart from murder—has troubled Texas courts. This is clear from the few appellate cases dealing with the provision.
In Lewis v. State, 815 S.W.2d 560 (Tex. Crim. App. 1991), a prosecution for capital murder, the defendant claimed error “in abstractly instructing the jury over his objection regarding the theory of ‘transferred intent’ which appears at V.T.C.A., Penal Code § 6.04(b)(1).” The court did not reach whether this was prohibited by the definition of capital murder, because the lack of an application provision meant the jury was not authorized to convict using transferred intent. Lewis, 815 S.W.2d at 562. Apparently the state’s theory was that the evidence showed Lewis intended to commit robbery, and the only difference between what he intended and what he caused was that murder rather than robbery was committed.
The provision was relied on in Price v. State, No. 05-91-003447-CR, 1992 WL 360170, at *9 (Tex. App.—Dallas Nov. 19, 1992), pet. ref’d, 861 S.W.2d 913 (Tex. Crim. App. 1993) (Clinton, J., joined by Baird and Overstreet, JJ., dissenting). In Price, the jury instruction is somewhat confusing but appeared to permit the jury to find the defendant Price guilty of criminal mischief if it found he intended to commit obstruction of a passageway and with the culpable mental state required for that offense damaged property. Three members of the court of criminal appeals argued that review should be granted to review the lower courts’ application of transferred intent. Review, however, was denied.
In Loredo v. State, 130 S.W.3d 275, 282–84 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d), the provision seems to have been applied to arson—setting a fire with intent to damage a building. The state’s theory appears to have been that if it proved the defendant Loredo set a fire intending to burn a safe inside a building and accidentally burned the building, transferred intent rendered him guilty of arson. The Houston court of appeals agreed that transferred intent under section 6.04(b)(1) applied but that the trial court had erroneously instructed the jury under section 6.04(b)(2). The error was, however, harmless.
The statute was also relied on in Palafox v. State, 949 S.W.2d 48 (Tex. App.—Texarkana 1997, no writ), in which the defendant Palafox was charged with possession of heroin. The jury was apparently permitted by a section 6.04(b)(1) instruction to convict him of the charged offense if it found the state proved he possessed what he believed was cocaine. Palafox, 949 S.W.2d at 49 (jury was properly instructed and evidence supported conviction).
The Committee concluded that without further clarification from the case law, there is sufficient uncertainty regarding the appropriate use of section 6.04(b)(1) that the Committee could not attempt to develop and recommend an instruction for that use. Apparently, and despite Price, Loredo, and Palafox, the provision is seldom actually invoked in practice.
One recent case, however, gives rise to issues the Committee concluded it should attempt to address.
Thompson held explicitly that transferred intent under section 6.04(b)(1) applied in a prosecution for intentionally or knowingly causing serious bodily injury to a child under Tex. Penal Code § 22.04(a)(1). This first-degree felony offense generally requires intent or knowledge concerning serious bodily injury.
Thompson held that under section 6.04(b)(1) the culpable mental state required for third-degree felony injury to a child (intent or knowledge concerning some bodily injury) transferred to—and was sufficient for—the first-degree felony of intentionally or knowingly causing serious bodily injury to a child.
In Thompson, the jury instruction initially set out the charged offense as requiring that the defendant “intentionally or knowingly cause[] serious bodily injury to [the child].” Thompson v. State, 183 S.W.3d 787, 788 (Tex. App.—Austin 2005), aff’d, 236 S.W.3d 787. It then set out an abstract statement of section 6.04(b)(1). In the application portion it directed the jury to first consider whether the state proved guilt under a version of the charged crime requiring proof of intent to cause serious bodily injury or knowledge that serious bodily injury would result. The jury was told that if it did not find guilt proved under that provision to consider alternatively whether the state proved guilt under a version of the charged offense requiring only proof of intent to cause bodily injury to the named child. See Thompson, 236 S.W.3d at 790.
The court of criminal appeals at one point stated in Thompson, “The trial court correctly submitted the law of transferred intent in the jury charge.” Thompson, 236 S.W.3d at 800.
Thompson also made clear that, at least as applied in that case, the impact of transferred intent could be mitigated by proper application of the doctrine of mistake of fact.
The above instruction suggests how a section 6.04(b)(1) transferred intent instruction might most effectively inform the jury of this law in the situation in which the case law makes clear it does apply. The reference in section 6.04(b) to matters “risked” seems designed to address application of transferred intent to situations in which recklessness is sufficient. The statement of the statute in the above instruction’s transferred intent unit includes only those portions relevant when the charged offense—as is the case here—requires either intent or knowledge.
The Committee is not satisfied with these instructions. Thus it does not affirmatively recommend their use. It offers them, however, as an effort to implement Thompson that might serve as the basis for further efforts to carry out the jury submission that Thompson held is sometimes required.