Keller, P.J., delivered the order of the Court. Meyers, J., not participating.

Applicant was convicted of capital murder and sentenced to death for killing a mother and her baby.*fn1 We affirmed his conviction and sentence on direct appeal.*fn2 In his second point of error on direct appeal, applicant complained about the submission of transferred intent instructions in the jury charge and contended that the law of transferred intent did not apply to his case.*fn3 We rejected that contention.*fn4 In Roberts v. State, we overruled our holding in applicant's case.*fn5 Applicant now contends that he is entitled to relief, based upon Roberts. We disagree and deny relief.

A. Norris v. State

The evidence showed that applicant shot and killed a mother and her two-year-old son.*fn6 The State presented evidence that Applicant first fired a shot that hit the child in the right leg, then fired a shot that hit the child in the forehead, and thereafter shot the child and the mother several more times.*fn7 The State's evidence further showed that the shot to the forehead was fatal to the child but not fatal to the mother.*fn8

We held that the evidence was sufficient to show that applicant intentionally killed the child, but, because the jury charge contained instructions on the law of transferred intent, we proceeded to consider whether transferred intent could apply.*fn9 Contrary to applicant's contention, we held that the law of transferred intent applies to establish the multiple-murders theory of capital murder when a defendant kills his intended victim and inadvertently kills a bystander.*fn10 In part, we reasoned that applicant's position would create the absurd result of prohibiting a capital murder prosecution of a defendant who kills his intended victim and inadvertently kills a bystander but allowing a capital murder prosecution when the defendant fails to kill the intended victim but inadvertently kills two or more bystanders.*fn11

B. Concurring Opinions in Norris

In a concurring opinion, Judge Clinton addressed whether the State could twice use a defendant's intent to kill the victim--once to establish the murder of the victim, and once, via transferred intent, to establish the murder of an unintended victim.*fn12 He concluded that the plain language of the transferred-intent statute prohibited such double use, and he disagreed with the Court that such a prohibition causes absurd results.*fn13

But Judge Clinton concurred in the Court's judgment because the evidence in applicant's case also supported a theory that, intending to kill the mother, applicant first inadvertently caused the death of the child, and then shortly after, in a separate act, intentionally killed the mother.*fn14 Under such a scenario, Judge Clinton reasoned, "the same intent was not used twice."*fn15 Instead, applicant's intent to kill the mother with the first shot was transferred to render him culpable for the death he did cause, the child's.*fn16 When applicant subsequently fired again, intending to kill, and actually killing, the mother, "he committed a second act by which he became criminally responsible for her murder too."*fn17

Judge Baird also filed a concurring opinion in which he stated that we should not address whether capital murder could be established by the killing of an intended victim and an unintended victim in a single act because that scenario was not implicated in applicant's case.*fn18 Judge Baird explained: "When [applicant] realized he had killed the infant but not the mother, [applicant] continued to shoot and eventually killed the mother. Thus, the murders were not committed in 'a single act.' Consequently, [applicant] was criminally responsible for both murders and the doctrine of transferred intent was not impermissibly expanded."*fn19

C. Roberts v. State

In Roberts, the assailants shot and killed a pregnant woman, whom they did not know was pregnant.*fn20 Relying upon Norris, the State argued that the defendant's conviction could be upheld on the basis that the intent to kill the mother could be used to establish both the murder of the mother and the murder of the unborn child (via transferred intent).*fn21

But we held that the Court's holding in Norris was at odds with its acknowledgment that the multiple-murder theory of capital murder requires "a discrete 'specific intent to kill' as to each death."*fn22 Although specific intent could be transferred from one person to another, the State cannot use "a single intent to kill to support the requirement of two intentional and knowing deaths."*fn23 "This is the fallacy of Norris," we said, "it permits the intent to cause one intentional or knowing death to support two deaths, one intentional and knowing, the other unintentional. We overrule Norris to the extent that it allows such use."*fn24 We further stated, "Transferred intent may be used as to a second death to support a charge of capital murder that alleges the deaths of more than one individual during the same criminal transaction only if there is proof of intent to kill the same number of persons who actually died."*fn25

D. Evaluation

In Roberts, we did not mention the concurring opinions in Norris or address the reasoning of those opinions.*fn26 We did not need to, because the reasoning in those opinions was not implicated by the facts in Roberts. No evidence suggested that separate acts by the assailants caused the death of the mother and her unborn child; rather, the unborn child, in the very early stages of gestation, died because the mother died.*fn27 Likewise, the evidence did not depict a situation in which the assailants were aware that an unintended bystander had already been killed when they intentionally killed the mother. Because the mother's pregnancy was not apparent, the assailants were simply unaware of the unborn child's existence.

In overruling Norris to the extent that it allowed a single intent to support the requirement of two intentional or knowing deaths, we did not invalidate the concurring opinions' separate rationale for upholding applicant's conviction--that applicant engaged in two discrete instances of conduct that carried separate intents. Our statement in Roberts that there must be "proof of intent to kill the same number of persons who actually died" was dictum, and we now decide that such dictum was improvident. It is certainly possible to intend more than once to kill a particular person. A defendant could shoot at John on Monday with the bullet hitting Mary and killing her instead. Then the defendant could shoot at John again on Tuesday and this time succeed in killing him. Surely no one would suggest that the defendant in such a situation is not guilty of two murders.*fn28

Applicant's separate instances of conduct occurred very close in time but were still sufficiently separate to involve separate intents. First, he fatally shot the child in the head, either (1) intending to kill the child or (2) intending to kill the mother but killing the child instead. Even if the latter were the case, his intent transferred to the child. Then, realizing that he had killed the child, he continued to shoot at the mother, thus engaging in conduct with a separate intent to kill.

We deny relief.

Publish

Opinion Footnotes

*fn1 Tex. Penal Code §19.03(a); Tex. Code Crim. Proc. art. 37.071.

*fn2 Norris v. State, 902 S.W.2d 428 (Tex. Crim. App. 1995).

*fn3 See id. at 436 & n.10.

*fn4 Id. at 437-38.

*fn5 273 S.W.3d 322, 329-31 (Tex. Crim. App. 2008).

*fn6 Norris, 902 S.W.2d at 431-35..

*fn7 Id. at 431-32.

*fn8 Id. at 431-32, 436 n.11.

*fn9 Id. at 436. We noted that, because the evidence was sufficient to show that applicant intended to kill the child, applicant's claim that transferred intent did not apply, if correct, would result only in a new trial and only if applicant had suffered harm. Id. at 436 n.11.

*fn10 Id. at 437-38.

*fn11 Id. at 438.

*fn12 Id. at 450-51 (Clinton, J., concurring).

*fn13 Id. at 451.

*fn14 Id. at 449.

*fn15 Id.

*fn16 Id.

*fn17 Id.

*fn18 Id. at 452 (Baird, J., concurring).

*fn19 Id.

*fn20 273 S.W.3d at 327.

*fn21 Id. at 329.

*fn22 Id. at 330.

*fn23 Id.

*fn24 Id. at 331.

*fn25 Id.

*fn26 See id., passim.

*fn27 Id. at 331.

*fn28 And he could be prosecuted under the serial-murder theory of capital murder. See Tex. Penal Code § 19.03(a)(7)(B).