Comment

What is often called “transferred intent” is provided for in the final portion of Texas Penal Code section 6.04:

1. (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. (1) a different offense was committed; or
   2. (2) a different person or property was injured, harmed, or otherwise affected.

Tex. Penal Code § 6.04(b).

The statute provides for considerably different rules of liability, depending on whether the state invokes section 6.04(b)(1) (different offense) or section 6.04(b)(2) (different person or property). Section 6.04(b)(2) transferred intent substitutes the “intent” to injure or affect one person or piece of property to another person or piece of property accidentally affected by the defendant’s conduct. This rule is consistent with general criminal law. Section 6.04(b)(1), in contrast, appears to substitute the culpable mental state for one offense for that of another, accidentally committed, offense. This rule is unusual and perhaps unique in American criminal law.

Transferred intent need not be pleaded in the charging instrument. In re K.W.G., 953 S.W.2d 483, 488 (Tex. App.—Texarkana 1997, pet. denied) (“There has never been a requirement to plead transferred intent in ordinary criminal cases.”); Bagsby v. State, 721 S.W.2d 567, 571 (Tex. App.—Fort Worth 1986, no pet.). Whether transferred intent should be included in jury instructions depends on whether the evidence supports guilt on that theory rather than on what the charging instrument includes.

The underlying offenses used as examples in the instructions in this chapter are causing serious bodily injury to a child by an act under Tex. Penal Code § 22.04(a)(1) and assault under Tex. Penal Code § 22.01(a)(1). Guidance for drafting instructions on injury to a child and assault may be found in chapter 22.