6 04 Causation Conduct And Results

V.T.C.A., Penal Code � 6.04 Vernon's Texas Statutes and Codes Annotated Currentness Penal Code (Refs & Annos) Title 2. General Principles of Criminal Responsibility Chapter 6. Culpability Generally (Refs & Annos) � 6.04. Causation: Conduct and Results

(a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. (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) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected. CREDIT(S) Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994. HISTORICAL AND STATUTORY NOTES 2003 Main Volume Acts 1993, 73rd Leg., ch. 900, � 1.01, which amended the whole Penal Code, made no apparent change to this section. Prior Laws: Rev.P.C. 1879, arts. 47, 48, 49, 82, 547, 548, 551, 576, 585. Rev.P.C. 1895, arts. 48 to 50, 82, 652, 653, 656, 681, 682, 690. Rev.P.C. 1911, arts. 48 to 50, 82, 1082, 1083, 1086, 1111, 1112, 1120. Vernon's App.P.C. (1925) arts. 42 to 44, 73, 1202, 1203, 1206, 1236. CROSS REFERENCES

"Actor" defined, see V.T.C.A., Penal Code � 1.07. Aiding suicide, see V.T.C.A., Penal Code � 22.08. Attempt, see V.T.C.A., Penal Code � 15.01. "Conduct" defined, see V.T.C.A., Penal Code � 1.07. Lesser included offenses, see Vernon's Ann.C.C.P. arts. 37.08, 37.09. "Person" defined, see V.T.C.A., Penal Code � 1.07. LAW REVIEW COMMENTARIES Criminal causation--problems with the Penal Code. 11 Hous.L.Rev. 1235 (1974). LIBRARY REFERENCES 2003 Main Volume Criminal Law 26. Westlaw Topic No. 110. C.J.S. Criminal Law �� 44 to 45, 1110. RESEARCH REFERENCES 2006 Electronic Pocket Part Update ALR Library 50 ALR 5th 467, Homicide: Liability Where Death Immediately Results from Treatment or Mistreatment of Injury Inflicted by Defendant. 169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense Charged. 18 ALR 917, Homicide by Unlawful Act Aimed at Another. Encyclopedias TX Jur. 3d Conservation & Pollution Laws � 255, Criminal Offenses. TX Jur. 3d Criminal Law � 58, Intent. TX Jur. 3d Criminal Law � 71, Jury Instructions -- Intent; Transferred Intent. TX Jur. 3d Criminal Law � 146, Recklessness. TX Jur. 3d Criminal Law � 148, Generally; Conduct and Results. TX Jur. 3d Criminal Law � 149, Transferred Intent.

TX Jur. 3d Criminal Law � 155, Attempt to Carry Out Conspiracy; Independent Impulse. TX Jur. 3d Criminal Law � 181, Transferred Intent. TX Jur. 3d Criminal Law � 182, Generally; Conduct and Results. TX Jur. 3d Criminal Law � 184, Gross Neglect or Improper Treatment of Victim by Person Other Than Defendant. TX Jur. 3d Criminal Law � 197, Intoxication Manslaughter. TX Jur. 3d Criminal Law � 248, Threats Involving Third Persons. TX Jur. 3d Criminal Law � 299, Presumptions of Intent; Inferences -- Transferred Intent. TX Jur. 3d Criminal Law � 411, Causation of Bodily Injury. TX Jur. 3d Criminal Law � 3169, Generally; on Motion of Court or Defendant. TX Jur. 3d Criminal Law � 3181, Application of Law to Facts. TX Jur. 3d Criminal Law � 3242, When Charge is Not Required. TX Jur. 3d Criminal Law � 3252, Accident. TX Jur. 3d Criminal Law � 3492, to Show Intent or Knowledge -- Requirement that Relevancy Outweigh Prejudicial Potential. TX Jur. 3d Narcotics & Poisons � 152, Requirement that Controlled Substance be Adequately Identified. Treatises and Practice Aids Charlton, 6 Tex. Prac. Series � 4.4, Causation. Charlton, 6 Tex. Prac. Series � 5.2, Theories of Parties' Liability. Charlton, 6 Tex. Prac. Series � 13.2, Assault and Aggravated Assault. Charlton, 6 Tex. Prac. Series � 29.4, Intoxication Assault and Intoxication Manslaughter. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 103.7, Causation. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 103.8, Concurrent Cause. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 103.9, Transferred Intent. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 116.1, Assault. Dix and Dawson, 40 Tex. Prac. Series Intro., Introduction: the Law of Texas Criminal Procedure. Dix and Dawson, 40 Tex. Prac. Series � 0.101, Holdings and Dicta -- in General. Dix and Dawson, 41 Tex. Prac. Series � 20.155, "Transferred Intent" Need Not be

Pleaded. Dix and Dawson, 43 Tex. Prac. Series � 36.24, Law of Transferred Intent -- in General. Dix and Dawson, 43 Tex. Prac. Series � 36.46, Causation. Dix and Dawson, 43 Tex. Prac. Series � 37.54, Correctly Arguing Law Not in the Charge. NOTES OF DECISIONS In general 1 Accident or mistake, generally 2 Accident or mistake, homicide 7 Accident or mistake, instructions 30 Admissibility of evidence 18 Arson, instructions 30.5 Assault with intent to murder, assaults 13 Assault with intent to murder, instructions 28 Assaults 12, 13 Assaults - In general 12 Assaults - Assault with intent to murder 13 Cause of death, instructions 25 Concurrent cause, instructions 24 Contributed to cause of death, instructions 26 Defenses 16 Degrees of offense, homicide 10 Degrees of offense, intoxicated driving 15 Foreseeable consequence, homicide 8 Homicide 4-11 Homicide - In general 4 Homicide - Accident or mistake 7 Homicide - Degrees of offense 10

Homicide - Foreseeable consequence 8 Homicide - Intent, generally 5 Homicide - Neglect and improper treatment 11 Homicide - Self-defense 9 Homicide - Transferred intent 6 Indictment, information or complaint 17 Instructions 23-33 Instructions - In general 23 Instructions - Accident or mistake 30 Instructions - Arson 30.5 Instructions - Assault with intent to murder 28 Instructions - Cause of death 25 Instructions - Concurrent cause 24 Instructions - Contributed to cause of death 26 Instructions - Intent, generally 27 Instructions - Intoxicated driving 33 Instructions - Murder 32 Instructions - Neglect and improper treatment 31 Instructions - Transferred intent 29 Intent, generally, homicide 5 Intent, generally, instructions 27 Intoxicated driving 14-15, 33 Intoxicated driving - In general 14 Intoxicated driving - Degrees of offense 15 Intoxicated driving - Instructions 33 Jury questions 22 Murder, instructions 32 Murder, sufficiency of evidence 21 Neglect and improper treatment, homicide 11

Neglect and improper treatment, instructions 31 Negligent homicide, sufficiency of evidence 20 Review 36 Self-defense, homicide 9 Sentence and punishment 35 Sufficiency of evidence 19-21 Sufficiency of evidence - In general 19 Sufficiency of evidence - Murder 21 Sufficiency of evidence - Negligent homicide 20 Transferred intent, generally 3 Transferred intent, homicide 6 Transferred intent, instructions 29 Verdict 34

1. In general Where several people act together in pursuit of unlawful act, each one is liable for collateral crimes, even though unplanned and unintended, if those crimes are foreseeable, ordinary and probable consequences of preparation or execution of the unlawful act. Curtis v. State (Cr.App. 1978) 573 S.W.2d 219. Criminal Law 59(4) Where defendant clearly intended to rob victim, who died as a result of being bound and gagged lying face down on dusty floor of barn during robbery, defendant's acts resulted in offense of aggravated robbery. Honea v. State (Cr.App. 1979) 585 S.W.2d 681. Robbery 11 A "concurrent cause" is another cause in addition to the actor's conduct, an agency in addition to the actor; actor's conduct is not broken down such that it constitutes separate causes, at least where attributes which comprise the conduct are both admitted to have occurred. Robbins v. State (Cr.App. 1986) 717 S.W.2d 348, on remand 716 S.W.2d 117. Negligence 421 Person is criminally liable if his conduct, regardless of concurrent cause, caused harm or if his conduct, together with another cause, caused harm, and only when person's conduct, by itself, is clearly insufficient to cause harm may he not be convicted. Mendoza v. State (App. 13 Dist. 1992) 840 S.W.2d 697. Homicide 507 When only difference between what actor desired or intended and the actual result is that different offense was committed, actor is responsible for causing the result that actually occurs. Palafox v. State (App. 6 Dist. 1997) 949 S.W.2d 48. Criminal Law 25 Concurrent cause excuses defendant's guilt only when concurrent cause was clearly

sufficient to produce result and conduct of defendant was clearly insufficient. Medina v. State (App. 1 Dist. 1997) 962 S.W.2d 83, petition for discretionary review refused. Criminal Law 31 Two combinations may exist to satisfy causal connection between defendant's conduct and harm that followed, which connection is statutorily required for finding of criminal responsibility: (1) defendant's conduct may be sufficient by itself to have caused the harm, regardless of existence of concurrent cause, or (2) defendant's conduct and the other cause together may be sufficient to have caused the harm. Umoja v. State (App. 2 Dist. 1997) 965 S.W.2d 3, on rehearing. Criminal Law 26 Under statute defining criminal defendant's conduct, is clearly defendant's conduct, by itself, convicted. Umoja v. State (App. Law 26

responsibility, if additional cause, other than sufficient by itself to produce the result, and is clearly insufficient, then defendant cannot be 2 Dist. 1997) 965 S.W.2d 3, on rehearing. Criminal

No concurrent cause other than defendant's conduct was clearly sufficient to cause death of victim who was attacked by group of persons, and defendant thus was criminally responsible as principal actor for victim's death, such that trial court was not required to apply law of parties, where, although medical examiner could not say with any degree of certainty which blows caused victim's death, he stated that all blows to victim contributed ultimately to his death. Umoja v. State (App. 2 Dist. 1997) 965 S.W.2d 3, on rehearing. Homicide 507; Homicide 572(1); Homicide 1465 2. Accident or mistake, generally If, while voluntarily committing one felony, the accused accidentally commits another felony, he is guilty of the felony he accidentally commits. Walker v. State (Cr.App. 1939) 138 Tex.Crim. 343, 135 S.W.2d 992. Criminal Law 24 No act done by accident is an offense against the law. Sargent v. State (Cr.App. 1975) 518 S.W.2d 807. Criminal Law 31 Defendant who commits felony by accident or mistake while in the course of intentionally committing another felony is guilty of the felony actually committed and the intent to commit the contemplated offense transfers to the offense actually committed. More v. State (App. 14 Dist. 1985) 692 S.W.2d 912, petition for discretionary review refused. Criminal Law 25 3. Transferred intent, generally Doctrine of transferred intent applies to property crimes. Bagsby v. State (App. 2 Dist. 1986) 721 S.W.2d 567. Criminal Law 25 Law of transferred intent, applicable when defendant intends to shoot one person but misses and strikes another, did not apply to case in which defendant knowingly aimed gun at victim, fired gun at victim, and thereby caused victim's death, even though defendant may have believed victim was another person. Martinez v. State (App. 4 Dist. 1992) 844 S.W.2d 279, petition for discretionary review refused. Homicide 555

4. Homicide--In general Where death of human being is occasioned in unlawful burning of house, state has option of proceeding against accomplice to offense as accomplice to arson or as accomplice to murder. Ward v. State (Cr.App. 1937) 133 Tex.Crim. 110, 109 S.W.2d 207. Criminal Law 29(14) If act of defendant alleged in indictment contributed to death of deceased, defendant is responsible though there were other concurring causes. Wright v. State (Cr.App. 1965) 388 S.W.2d 703. Homicide 507 Where two or more persons agree to commit robbery with a deadly weapon and the victim is killed, both are guilty of murder with malice. Lopez v. State (Cr.App. 1972) 482 S.W.2d 179. Homicide 612 5. ---- Intent, generally, homicide In view of Vernon's Ann.P.C. art. 39 (repealed), no question of negligent homicide arose where person intending to kill one person killed another. Clark v. State (1885) 19 Tex.Crim. 495. Intentional act reasonably calculated to produce and actually producing wellgrounded belief that life is in danger, and inducing deceased to jump from window to escape, resulting in death, constitutes intentional killing, justifying conviction of murder. Whiteside v. State (Cr.App. 1930) 115 Tex.Crim. 274, 29 S.W.2d 399. Homicide 565 In prosecution for murder, where accused, during a difficulty with another party with whom he had had a previous disagreement, produced a pistol and shot and killed deceased, jury was entitled to infer from accused's acts at the time that he intended to kill some one. Martin v. State (Cr.App. 1938) 134 Tex.Crim. 379, 115 S.W.2d 913. Homicide 1135 In prosecution for murder with malice, involving the death of a two-year-old girl who died from a fracture or laceration of the right lobe of her liver caused by external blunt trauma, the intent to kill was by the intent to commit the felony which defendant did intend to commit and was committing which caused the child's death. Hilliard v. State (Cr.App. 1974) 513 S.W.2d 28. Homicide 603 6. ---- Transferred intent, homicide If the act committed is the unintentional homicide of a different person from the one intended, and is without malice, and done while the mind is under the immediate influence of sudden passion, arising from an adequate cause, rendering the mind incapable of cool reflection, the crime is manslaughter, because the crime intended was manslaughter. Clark v. State (1885) 19 Tex.Crim. 495; Breedlove v. State (1888) 26 Tex.Crim. 445, 9 S.W. 768; Leggett v. State (1891) 21 Tex.Crim. 382, 17 S.W. 159; Carter v. State (1892) 30 Tex.Crim. 551, 17 S.W. 1102; McCullough v. State (1911) 62 Tex.Crim. 126, 136 S.W. 1055; see, also, Brailaford v. State (1913) 71 Tex.Crim. 113, 158 S.W. 541; Whiten v. State (1913) 71 Tex.Crim. 555, 160 S.W. 462.

One who, with malice aforethought shoots at one person and accidentally kills another, is guilty of murder. Richards v. State (Cr.App. 1895) 35 Tex.Crim. 38, 30 S.W. 805. When a person discharged a gun at person intending to kill him but unintentionally killed another person, the discharge of the gun was not an accident within the meaning of Vernon's Ann.P.C. art. 39 (repealed) and said article had no reference to the facts of the case. Richards v. State (Cr.App. 1895) 35 Tex.Crim. 38, 30 S.W. 805. In view of Vernon's Ann.P.C. art. 42 (repealed), one shooting at another and killing a third person was guilty of murder upon implied malice. Buckley v. State (Cr.App. 1915) 78 Tex.Crim. 378, 181 S.W. 729. Where defendant fired a shot at one person with malice, intending to kill him, the fact that it wounded another, whom he did not intend to kill, would not excuse him from liability for assault with intent to murder. Jones v. State (Cr.App. 1921) 89 Tex.Crim. 355, 231 S.W. 122. Homicide 731 One mistakenly shooting at a person with belief that he is another, whom one firing shots intends to kill, is guilty of assault with intent to murder. Kitchens v. State (Cr.App. 1946) 149 Tex.Crim. 135, 192 S.W.2d 449. Homicide 731 Where defendant shot one person when he intended to shoot another, trial court's refusal, in murder prosecution, to authorize an acquittal if defendant did not intend to kill deceased but only shot him accidentally, was correct. Hodges v. State (Cr.App. 1954) 160 Tex.Crim. 579, 272 S.W.2d 902. Homicide 1492 In homicide prosecution, jurors were authorized to conclude that defendant had committed murder by attaching dynamite bomb to automobile with intention of killing decedent's husband and that, through accident and mistake, decedent had been killed instead. Washburn v. State (Cr.App. 1958) 167 Tex.Crim. 125, 318 S.W.2d 627, certiorari denied 79 S.Ct. 876, 359 U.S. 965, 3 L.Ed.2d 834. Homicide 1139; Homicide 1171 Conviction for murder may be had on theory of transferred intent, in that a different person met his death than the person intended to be killed. Garrett v. State (App. 4 Dist. 1981) 624 S.W.2d 953, reversed 642 S.W.2d 779, on remand 656 S.W.2d 97, review granted. Homicide 555 Defendant's felonious intention of killing his former wife when he shot through door transferred over to killing of his child for purposes of showing defendant intentionally and knowingly caused death of his daughter. Aguirre v. State (Cr.App. 1982) 732 S.W.2d 320. Homicide 555 In murder prosecution in which defendant was convicted of involuntary manslaughter, arising when defendant shot person standing behind crowd of men he was aiming at, doctrine of transferred intent would have made no sense if applied to lesser included offenses which were crimes not requiring intent and, in any event, any error in failing to so instruct could only have benefitted defendant since the doctrine served to expand defendant's liability when act has unexpected consequence. Juarez v. State (App. 1 Dist. 1994) 886 S.W.2d 511, petition for discretionary review refused. Homicide 1389; Criminal Law 1173.5 Criminal responsibility via transferred intent is an issue to be determined during the guilt-innocence phase. Chimney v. State (App. 10 Dist. 1999) 6 S.W.3d 681, petition for discretionary review refused. Criminal Law 25

Other-acts evidence that defendant threatened and physically abused minor victim's mother was admissible in capital-murder trial to show defendant's intent to kill and absence of mistake in attempting to kill mother, where the state pursued conviction based on theory of transferred intent, and mother was intended victim. Navarro v. State (App. 14 Dist. 2004) 154 S.W.3d 795, petition for discretionary review refused. Criminal Law 371(4); Homicide 989(3) Evidence that defendant got into altercation with another patron at nightclub, left to get gun, and then shot at vehicle that patron was riding in from his own automobile but ended up killing a different passenger was legally sufficient to support murder conviction based on the law of transferred intent. Bateman v. State (App. 14 Dist. 2004) 2004 WL 1381019, Unreported, petition stricken, petition for discretionary review refused. Homicide 1171 7. ---- Accident or mistake, homicide Killing of boy, through mistake or accident, while preparing and executing sodomy upon him, would constitute murder with malice under Texas Penal Code. Smith v. State of Tex., C.A.5 (Tex.)1964, 329 F.2d 498. Homicide 541 Where accused intended to commit robbery and was so doing when pistol leveled at victim was discharged and victim was killed, killing even if accidentally caused by bump of accomplice was triable as an unlawful killing. Smith v. State (Cr.App. 1949) 154 Tex.Crim. 234, 225 S.W.2d 846. Homicide 607 Where defendant and companion entered into conspiracy to rob and did rob bus driver, and while carrying out conspiracy defendant shot driver and killed him, even if killing was accidental, defendant could be punished for murder. Smith v. State (Cr.App. 1949) 154 Tex.Crim. 234, 225 S.W.2d 846. Homicide 607 Defendant did not forfeit the defense of accident in shooting the deceased if he was engaged in an unlawful act at the time of the shooting. Davis v. State (Cr.App. 1974) 506 S.W.2d 909. Homicide 762 Under Vernon's Ann.P.C. art. 42 (repealed), the felony-murder statute, a defendant was actually guilty of the offense that was committed by mistake during the preparation or execution of another felony. Hilliard v. State (Cr.App. 1974) 513 S.W.2d 28. Homicide 588 Even if accused, who was charged with murder with malice, had accidentally shot victim, defense of accidental homicide was not applicable to exonerate him from liability where shot occurred while accused was attempting to collect fee for services rendered to victim by prostitute. Sargent v. State (Cr.App. 1975) 518 S.W.2d 807. Homicide 762 Capital murder defendant who acted intentionally by taking arms to police station and engaging in gun battle which caused death of police officer could be held criminally responsible for officer's death, notwithstanding fact that officer was actually shot and killed by another officer. Dowden v. State (Cr.App. 1988) 758 S.W.2d 264. Homicide 569 8. ---- Foreseeable consequence, homicide Since death of police officer would have been foreseeable consequence of assault

in which defendant participated, defendant was properly convicted of voluntary manslaughter on basis of killing committed by another, whether or not there existed any prior agreement to kill officer, under subd. (b)(1) of this section. Curtis v. State (Cr.App. 1978) 573 S.W.2d 219. Homicide 718 Although defendant was sought to be held liable for homicide on theory of criminal responsibility for conduct of another it did not matter that the offense originally intended by defendant, i.e., assault or aggravated assault, subsequently escalated into murder; inasmuch as death would have been a foreseeable consequence of an assault inflicted by use of a gun defendant was liable for the collateral crime of murder whether or not there existed any prior agreement to commit the latter offense. Gordon v. State (App. 4 Dist. 1982) 640 S.W.2d 743. Homicide 612 9. ---- Self-defense, homicide If a party in necessary self-defense accidentally kills a person, it is justifiable homicide. Ferrell v. State (1875) 43 Tex. 503; Plummer v. State (1878) 4 Tex.Crim. 310, 30 Am.Rep. 165; Clark v. State (1885) 19 Tex.Crim. 495; McCullough v. State (1911) 62 Tex.Crim. 126, 136 S.W. 1055. Defendant would not be guilty of unlawful homicide, if he shot deceased accidentally, while defending himself against another. Johnson v. State (Cr.App. 1926) 105 Tex.Crim. 387, 288 S.W. 223. 10. ---- Degrees of offense, homicide If A. shoots at B., with express malice, and by accident kills C., the offense is murder in the second degree. McCoy v. State (1860) 25 Tex. 33, 78 Am.Dec. 520; Bean v. Mathieu (1871) 33 Tex. 591; Angell v. State (1872) 36 Tex. 542, 14 Am.Rep. 380; Ferrell v. State (1875) 43 Tex. 503; Taylor v. State (1878) 3 Tex.Crim. 387; Halbert v. State (1878) 3 Tex.Crim. 656; McConnell v. State (1883) 13 Tex.Crim. 390; Clark v. State (1885) 19 Tex.Crim. 495; Breedlove v. State (1888) 26 Tex.Crim. 445, 9 S.W. 768; Leggett v. State (1891) 21 Tex.Crim. 382, 17 S.W. 159; Musick v. State (1892) 21 Tex.Crim. 69, 18 S.W. 95; Honeycutt v. State (1900) 42 Tex.Crim. 129, 57 S.W. 806; Miller v. State (1907) 52 Tex.Crim. 72, 105 S.W. 502; Thomas v. State (1908) 53 Tex.Crim. 272, 109 S.W. 155; Milo v. State (1910) 59 Tex.Crim. 196, 127 S.W. 1025; McCullough v. State (1911) 62 Tex.Crim. 126, 136 S.W. 1055; Rainer v. State (1912) 67 Tex.Crim. 87, 148 S.W. 735. When the killing intended would have been manslaughter, the accidental killing would not be a higher grade of homicide. Ferrell v. State (1875) 43 Tex. 503; Clark v. State (1885) 19 Tex.Crim. 495; McConnell v. State (1887) 22 Tex.Crim. 354, 3 S.W. 699, 58 Am.Rep. 647. Where accused shot and killed his wife while intending to shoot a third person, the killing could not be reduced to manslaughter, but only to murder on implied malice. Hill v. State (Cr.App. 1914) 74 Tex.Crim. 481, 168 S.W. 864. Homicide 555 Where accused shoots at one party and unintentionally kills a second party, he is guilty of murder in the second degree, if killing of first party would have constituted murder, or he is guilty of manslaughter if killing of first party would have constituted manslaughter. Covert v. State (Cr.App. 1938) 134 Tex.Crim. 12, 113 S.W.2d 556. Homicide 555; Homicide 702

Opinion, on appeal from conviction for murder without malice, that facts did not evidence an unlawful killing without malice, did not preclude state from trying defendant for lesser degrees of an unlawful assault. Watson v. State (Cr.App. 1946) 149 Tex.Crim. 643, 197 S.W.2d 1018. Double Jeopardy 164 Statute, V.T.C.A., Penal Code � 6.04(b) providing that a person is criminally responsible for causing result if the only difference between what actually occurred and what he desired, contemplated, or risked is that different person was injured, could not be applied, in prosecution for murder of six victims during one incident, so as to enable "adequate cause" provided by one victim to be transferred to other victims; thus, the six acts of murder could not all be reduced to voluntary manslaughter as result of one victim's alleged act of provocation. Belachheb v. State (App. 2 Dist. 1985) 699 S.W.2d 709, petition for discretionary review refused. Homicide 672; Homicide 702 Transferred intent statute allows state to prosecute defendant who kills intended victim and unintended victim in same criminal transaction for capital murder for murder of more than one person, each committed intentionally or knowingly, during same transaction, by allowing state to prosecute unintended killing at same level of criminal responsibility at which it will also prosecute him for intended killing. Norris v. State (Cr.App. 1995) 902 S.W.2d 428, rehearing denied, certiorari denied 116 S.Ct. 237, 516 U.S. 890, 133 L.Ed.2d 165. Homicide 555 11. ---- Neglect and improper treatment, homicide The fact that the family of the deceased was present when the wound was inflicted, does not relieve the person inflicting the wound from furnishing aid to the injured party. Williams v. State (1877) 2 Tex.Crim. 271. If the party who inflicted the injury willfully fails to furnish necessary aid, and the injured person dies from the injury, the injury is regarded as inevitably fatal, and no question as to neglect or improper treatment by others can in such case arise as a matter of defense. Morgan v. State (1884) 16 Tex.Crim. 593. If one illegally shoots another or inflicts upon him an injury that might not be fatal, and yet of his malice fails to call aid, and the injured party dies, the killing might be imputed to him; but in any event the failure to call aid must be willful, that is with legal malice and evil intent. Ware v. State (Cr.App. 1900) 41 Tex.Crim. 415, 55 S.W. 342. Death from a disease caused by a wound is imputable to the wound and one whose act hastens another's death may be held criminally responsible, though deceased was already suffering from a disease or another wound. Embrey v. State (Cr.App. 1923) 94 Tex.Crim. 591, 251 S.W. 1062. Homicide 507 That a surgeon was not at hand to render immediate aid to one dying from an injury inflicted by defendant is not a supervening cause reducing the offense from murder to aggravated assault. Embrey v. State (Cr.App. 1923) 94 Tex.Crim. 591, 251 S.W. 1062. Homicide 566 Where evidence was otherwise sufficient to support a conviction, the fact that a knife wound was not of itself necessarily fatal, and that deceased died from loss of blood, which might have been prevented, if medical aid had been promptly obtained, does not affect defendant's guilt. Mason v. State (Cr.App. 1923) 94 Tex.Crim. 532, 251 S.W. 1065. Homicide 507

Where testimony showed that peritonitis was the immediate cause of death of deceased, superinduced by gunshot wounds inflicted upon her by defendant, defendant would nevertheless be guilty of murder in view of Vernon's Ann.P.C. art. 42 (repealed). Adams v. State (Cr.App. 1947) 150 Tex.Crim. 431, 202 S.W.2d 933. Homicide 566 Even assuming that the alleged negligence of doctors who performed surgery on victim was sufficient to have caused victim's death, evidence that defendant's gunshot to victim's face went through victim's cheek and nearly severed her tongue, and that victim probably would have died without medical attention, established causation, in prosecution for capital murder. Thompson v. State (Cr.App. 2001) 93 S.W.3d 16, rehearing granted in part, rehearing denied, rehearing denied 108 S.W.3d 269, certiorari denied 124 S.Ct. 60, 540 U.S. 937, 157 L.Ed.2d 249, withdrawn, certiorari denied 124 S.Ct. 250, 540 U.S. 899, 157 L.Ed.2d 179. Homicide 1174 12. Assaults--In general Where defendant began a quarrel, and, in order to prevent the person he was quarreling with from picking up an axe helve, struck at him, and accidentally hit a bystander, he is guilty of an assault and battery upon the latter. Powell v. State (Cr.App. 1893) 32 Tex.Crim. 230, 22 S.W. 677. The issue of simple assault was not in the case, though accused charged with maiming only intended to commit a simple assault. Key v. State (Cr.App. 1913) 71 Tex.Crim. 642, 161 S.W. 121. Evidence was legally and factually sufficient to support finding that defendant caused bodily injury to victim, as required to support assault-family violence conviction; photographs showed victim with two scrapes down her chest, right above her breasts, such photographs were taken by officer the same morning that the scrapes occurred as victim resisted defendant's efforts to force her into his vehicle by grabbing her arm, and victim told the jury she received the two scrapes when she tried to pull away from defendant. Gomez v. State (App. 12 Dist. 2005) 183 S.W.3d 86. Assault And Battery 91.8 13. ---- Assault with intent to murder If one while trying to kill one person unintentionally cuts or stabs another, he is guilty of an assault with intent to murder. Smith v. State (Cr.App. 1906) 95 S.W. 1057. If a person acting with malice express or implied and with an intent to kill shoots at one person and strikes another, he is guilty of assault to murder. Vining v. State (Cr.App. 1910) 66 Tex.Crim. 316, 146 S.W. 909. Homicide 731 Where defendant's firing of the gun was accidental, he could not be guilty of an assault with intent to kill. Martin v. State (Cr.App. 1913) 71 Tex.Crim. 521, 160 S.W. 968. Homicide 727 Accidental shooting of third party in defense against unlawful attack, causing reasonable fear of serious injury, was not assault with intent to murder. Watson v. State (Cr.App. 1929) 111 Tex.Crim. 636, 13 S.W.2d 696. Homicide 762

14. Intoxicated driving--In general A motorist killing man while operating automobile under influence of liquor was not guilty of murder, if motorist operated automobile in the manner that a person not under influence of intoxicating liquor would have operated automobile. Moynahan v. State (Cr.App. 1941) 140 Tex.Crim. 540, 146 S.W.2d 376. Automobiles 343 Where defendant was convicted of killing another by accident and mistake while driving an automobile in an intoxicated condition, having been tried under Vernon's Ann.P.C. art. 802c (repealed), which provided that punishment should be assessed for the felony actually committed, jury had a right to assess penalty of five years in the penitentiary, since such special statute was controlling over art. 44 (repealed), the general statute. Flowers v. State (Cr.App. 1947) 150 Tex.Crim. 467, 203 S.W.2d 539. Automobiles 359.5; Automobiles 359.5; Automobiles 359.5 Evidence was sufficient to support jury's finding that defendant's conduct, rather than a mechanical failure of his car's steering system, caused accident involving his car and two others, and thus, was sufficient to support conviction for intoxication assault; testimony of defendant's witnesses was too speculative as to exactly when the steering mechanism may have failed, and other evidence revealed that defendant did not step on the brakes to slow down before the accident and that defendant did not complain to anyone, in the hours and days after the collision, that his steering failed. Henderson v. State (App. 1 Dist. 2000) 29 S.W.3d 616, rehearing overruled, petition for discretionary review refused. Automobiles 355(6); Automobiles 355(14) Evidence was legally sufficient to support finding that defendant caused deaths of motorists by reason of intoxication, as required for conviction of intoxication manslaughter; there was evidence that defendant was operating his 18-wheel truck at speeds exceeding the posted speed limit, that defendant lost control after attempting to pass another smaller vehicle, causing his trailer to buckle and crush the smaller vehicle, and that defendant was intoxicated. Martinez v. State (App. 1 Dist. 2001) 66 S.W.3d 467, rehearing overruled, petition for discretionary review refused. Automobiles 344 Evidence was factually sufficient to support finding that defendant caused deaths of motorists by reason of intoxication, as required for conviction of intoxication manslaughter, even though there was evidence that the 18-wheel truck operated by defendant may have had safety violations and may have been improperly loaded; eyewitnesses testified that defendant was operating the truck at speeds exceeding the posted speed limit, and there was evidence that defendant was intoxicated at the time. Martinez v. State (App. 1 Dist. 2001) 66 S.W.3d 467, rehearing overruled, petition for discretionary review refused. Automobiles 355(13) If motorist, whether intoxicated or not, while driving on public highway collided with another automobile thereby causing death, in such reckless and dangerous manner as to evidence disregard of lives of others, so as to imply malice, he would be guilty of murder with malice, but if proof failed to show such reckless disregard of others as to constitute murder with malice but did show that act was done by accident or mistake as result of intoxication, evidence would sustain conviction of murder without malice. Op.Atty.Gen.1946, No. 0-7044.

15. ---- Degrees of offense, intoxicated driving Intoxicated motorist colliding with deceased's automobile and causing his death was not guilty merely of negligent homicide, since he was engaged in commission of felony. Jones v. State (Cr.App. 1934) 127 Tex.Crim. 227, 75 S.W.2d 683. Automobiles 344 Act of intoxicated motorist in driving into and killing person preparing to change tire of automobile stopped on side of highway did not come within statute on negligent homicide [Vernon's Ann.P.C. art. 1241 (repealed) ], since act of driving an automobile while intoxicated was a felony and not a misdemeanor. Collins v. State (Cr.App. 1936) 130 Tex.Crim. 386, 94 S.W.2d 443. Automobiles 344 Vernon's Ann.P.C. repealed arts. 42, 802c, dealing with punishment of an intoxicated automobile driver involved in accident or doing an act otherwise felonious, authorized a charge of murder without malice against a motorist who while driving on a public highway while intoxicated accidentally killed another. Fox v. State (Cr.App. 1942) 145 Tex.Crim. 71, 165 S.W.2d 733. Vernon's Ann.P.C. art. 802c (repealed) made the constituent elements of art. 42 (repealed) applicable to first offense of driving while intoxicated which by the same act was reduced from a felony to a misdemeanor. Johnson v. State (Cr.App. 1948) 153 Tex.Crim. 59, 216 S.W.2d 573. Vernon's Ann.P.C. art. 802c (repealed) left the law theretofore existing under art. 42 (repealed) unchanged as to an act done by accident or mistake while driving an automobile while intoxicated, notwithstanding Vernon's Ann.Civ.St. art. 6701l-1, reducing first offense of driving while intoxicated to a misdemeanor. Greiner v. State (Cr.App. 1952) 157 Tex.Crim. 479, 249 S.W.2d 601. Purpose of Vernon's Ann.P.C. art. 802c (repealed), making commission of act through accident or mistake of person driving while under influence of liquor a felony if act voluntarily done would be a felony, was to make applicable to misdemeanor offense of drunken driving elements of accident or mistake contained in art. 42 (repealed), prescribing punishment affixed to felony actually committed through mistake or accident by person who had intention to commit another felony. Thomason v. State (Cr.App. 1964) 388 S.W.2d 700. Automobiles 359.4; Automobiles 359.4; Automobiles 359.4 16. Defenses Where accused shot deceased believing that he was A., he was entitled to all the defenses to which he would have been entitled if the person shot had in fact been Wilson v. State (Cr.App. 1913) 70 Tex.Crim. 355, 156 S.W. 1185. 17. Indictment, information or complaint Murder indictment alleging that defendant, while intoxicated, was driving automobile and that he killed occupant of another automobile in collision, sufficiently charged murder. Norman v. State (Cr.App. 1932) 121 Tex.Crim. 433, 52 S.W.2d 1051. Automobiles 351.1 Indictment alleging that accused drove automobile while intoxicated, and by

mistake and accident collided with automobile, causing occupant's death, sufficiently charged murder, though intentional collision or killing was not charged. Jones v. State (Cr.App. 1934) 127 Tex.Crim. 227, 75 S.W.2d 683. Automobiles 351.1 Indictment charging that defendant struck and killed designated person while unlawfully operating automobile while intoxicated was not sustainable as murder indictment under Vernon's Ann.P.C. art. 1256 (repealed), in absence of allegations that defendant voluntarily killed deceased with malice aforethought, or that act causing death of deceased was either through mistake or accident. Hittson v. State (Cr.App. 1936) 131 Tex.Crim. 228, 97 S.W.2d 951. Automobiles 351.1 An indictment for murder charging that accused unlawfully drove a truck while intoxicated striking a pedestrian through mistake and accident was sufficient under Vernon's Ann.P.C. art. 42 (repealed). Totten v. State (Cr.App. 1937) 134 Tex.Crim. 62, 113 S.W.2d 194. Automobiles 351.1; Automobiles 357(13); Automobiles 357(13); Automobiles 357(13) An indictment alleging that accused while intoxicated and driving automobile, on a public highway, by accident collided with an automobile causing death of occupants sufficiently charged murder. Brittain v. State (Cr.App. 1940) 139 Tex.Crim. 263, 139 S.W.2d 586. Automobiles 351.1 In prosecution for negligent homicide while accused motorist was exceeding 55 miles per hour, charge that accused voluntarily killed decedent by striking the automobile in which she was riding with accused's automobile was not redundant where it was not charged that accused intentionally killed decedent. Wallace v. State (Cr.App. 1943) 145 Tex.Crim. 625, 170 S.W.2d 762. Indictment And Information 119 Permitting state's attorney to dismiss from the indictment the allegation of murder with malice aforethought in order that cause could be tried without necessity of special venire and with dismissal not to affect the indictment with reference to murder without malice was not error. Watson v. State (Cr.App. 1946) 149 Tex.Crim. 643, 197 S.W.2d 1018. Criminal Law 303.25 Indictment for murder with malice which was based on defendant's shooting one person when he meant to shoot another and which contained the word "voluntarily" but did not contain word "intentionally" was sufficient. Becks v. State (Cr.App. 1953) 158 Tex.Crim. 204, 254 S.W.2d 396. Homicide 853 Where defendant shot one person when he intended to shoot another, it was not controlling that murder indictment did not allege that shooting was with intent to kill another and that deceased was killed by accident, and only in event defendant was justified in firing at person intended would accidental killing of deceased have been excusable or justified. Hodges v. State (Cr.App. 1954) 160 Tex.Crim. 579, 272 S.W.2d 902. Homicide 555 This section explaining that person may be criminally responsible if result would not have occurred but for his conduct need not be alleged in indictment to be considered by court and referred to by prosecutor conducting voir dire of jury. Dowden v. State (Cr.App. 1988) 758 S.W.2d 264. Criminal Law 718; Indictment And Information 108 Variance between allegation in indictment that defendant possessed heroin and defendant's confession that he possessed cocaine was not fatal to conviction. Palafox v. State (App. 6 Dist. 1997) 949 S.W.2d 48. Controlled Substances 67

18. Admissibility of evidence Under an indictment charging defendant as an accomplice to the murder of A., evidence was inadmissible to show that the plot by defendant and an alleged principal was to kill M., and that A. was killed by mistake. Cooper v. State (Cr.App. 1913) 69 Tex.Crim. 405, 154 S.W. 989. Homicide 872 In prosecution for assault with intent to murder one at whom state contended that defendant shot with intent to kill another, testimony as to defendant's hostile conduct toward and threat to kill such other shortly before shooting was not objectionable as showing extraneous transactions, but was admissible as showing defendant's motive and intent to kill such other. Kitchens v. State (Cr.App. 1946) 149 Tex.Crim. 135, 192 S.W.2d 449. Criminal Law 371(4); Criminal Law 371(12) Proof that defendant assaulted with deadly weapon and shot certain person conformed to allegations of indictment that defendant, with malice aforethought, assaulted such person with deadly weapon with intent to murder him, and introduction of evidence that defendant intended to kill another or others, but shot such person by mistake, did not destroy or impair state's case. Johnson v. State (Cr.App. 1948) 151 Tex.Crim. 405, 208 S.W.2d 94. Homicide 880 Testimony of doctor as to seriousness of wounds inflicted by defendant on person, for whom he intended bullets that in fact killed deceased, was admissible at defendant's trial for murder with malice. Pena v. State (Cr.App. 1968) 430 S.W.2d 199. Homicide 998 Evidence of police pursuit policy was not relevant in defendant's felony murder trial arising from collision during high speed chase; only if police car had struck victims' car would police have been a sufficient cause of the collision, and only if police actions could have been cause of deaths would pursuit policy have been relevant. Medina v. State (App. 1 Dist. 1997) 962 S.W.2d 83, petition for discretionary review refused. Automobiles 354(13); Automobiles 354(13); Automobiles 354(13) 19. Sufficiency of evidence--In general Evidence that accused entered cafe intending to assault peace officer and pointed cocked pistol, which was "easy on the trigger," at such officer, and that pistol was discharged into the arm of another officer when he attempted to disarm accused, supported conviction of assault with intent to murder without malice, notwithstanding that victim's testimony was conflicting as to which arm he was shot in. Covert v. State (Cr.App. 1938) 134 Tex.Crim. 12, 113 S.W.2d 556. Homicide 1154 Testimony by pathologist that there was blood coming from stab wound to victim's left upper chest and that wound damaged two large vessels in the body sustained finding that defendant's stabbing of victim caused his death, notwithstanding pathologist's testimony that victim could have survived if he had received timely treatment by a competent vascular surgeon and claim that failure to receive immediate medical treatment was due to decedent's own intoxication. Mendoza v. State (App. 13 Dist. 1992) 840 S.W.2d 697. Homicide 1174 Even though court gave concurrent causation instruction, it was not required to apply law to facts where there was not sufficient evidence to warrant instruction.

Hutcheson v. State (App. 7 Dist. 1995) 899 S.W.2d 39, petition for discretionary review refused. Criminal Law 814(21) Culpable mental state generally must be established by circumstantial evidence, and may be inferred from acts, words, and conduct of accused. Barcenes v. State (App. 4 Dist. 1997) 940 S.W.2d 739, petition for discretionary review refused. Criminal Law 312; Criminal Law 552(1) Proof of causation is sufficient if evidence establishes that "but for" defendant's conduct, alleged result would not have occurred. Barcenes v. State (App. 4 Dist. 1997) 940 S.W.2d 739, petition for discretionary review refused. Criminal Law 568 Pursuant to statute imposing criminal responsibility if result would not have occurred but for defendant's conduct, victim's testimony that medical treatment for her injuries made her condition worse did not preclude finding that defendant's conduct of rear-ending victim's vehicle caused her serious bodily injury as required for conviction of intoxication assault, absent evidence in the record showing that treatment victim received was clearly sufficient to produce debilitating pain that incapacitated her. Adams v. State (App. 5 Dist. 1998) 969 S.W.2d 106. Automobiles 347 Evidence was sufficient to show that car accident caused by defendant's intoxication caused victim to suffer miscarriage, as required to establish intoxication assault conviction, as physician testified that miscarriage could have been caused by physical trauma, such as car accident, and victim suffered miscarriage shortly after accident. St. Clair v. State (App. 10 Dist. 2000) 26 S.W.3d 89, petition for discretionary review refused, habeas corpus denied 2004 WL 1532200. Automobiles 355(14) When the conduct of the accused as well as other potential actions or conditions could have caused the victim's injury, the accused will nevertheless be held criminally responsible, unless the other causes were clearly sufficient to produce the injury, and the conduct of the accused clearly insufficient; thus, the evidence of causation will be legally insufficient in such a case only when the conduct of the accused, standing alone, was clearly insufficient to cause the injury. St. Clair v. State (App. 10 Dist. 2000) 26 S.W.3d 89, petition for discretionary review refused, habeas corpus denied 2004 WL 1532200. Criminal Law 26 Trial court's failure to instruct jury on issue of transferred intent when it instructed on lesser included offense of manslaughter did not constitute an improper comment on weight of evidence in trial for murder of unintended victim; manslaughter instruction did not state that jury could find defendant guilty if it concluded that his reckless conduct toward intended victim resulted in death of actual victim, but rather focused on defendant's alleged reckless act of shooting at car in which victim was passenger which resulted in victim's death. Castillo v. State (App. 7 Dist. 2002) 71 S.W.3d 812, rehearing overruled, petition stricken, petition for discretionary review refused. Criminal Law 763(10) 20. ---- Negligent homicide, sufficiency of evidence In prosecution for negligent homicide through operation of a motor vehicle, evidence, consisting of testimony that defendant was driving his panel truck at a speed of 35 miles per hour in a 30-mile-per-hour zone and that the truck collided at an intersection with an automobile in which deceased was riding, causing the

automobile to turn over, was insufficient to sustain defendant's conviction for having caused the death of the automobile passenger. Hubbard v. State (Cr.App. 1959) 167 Tex.Crim. 379, 320 S.W.2d 835. Automobiles 355(13) Evidence did not sustain conviction for negligent homicide by automobile, for lack of showing that defendant's alleged violation of speed law caused accident. Metcalf v. State (Cr.App. 1961) 171 Tex.Crim. 269, 347 S.W.2d 618. Automobiles 355(13) 21. ---- Murder, sufficiency of evidence Evidence that accused's threats and acts so terrorized wife that she leaped to death from window supported murder conviction. Whiteside v. State (Cr.App. 1930) 115 Tex.Crim. 274, 29 S.W.2d 399. Homicide 1174 Evidence sustained conviction of defendant, who mistakenly shot and killed companion of intended victim, for murder with malice. Pena v. State (Cr.App. 1968) 430 S.W.2d 199. Evidence was sufficient, in prosecution for murder, to show an attempt to rob, if not robbery of, the victim who was seen scuffling with defendants while one defendant had money in his hand and whose pockets were found turned inside out. Lopez v. State (Cr.App. 1972) 482 S.W.2d 179. Homicide 1165 Murder conviction would be sustained though there was little or no evidence that defendant intended to kill deceased, where the evidence was sufficient to show an intent to kill two other persons at the time of the act which resulted in the death of deceased, when defendant ran over her with his automobile. Palafox v. State (Cr.App. 1972) 484 S.W.2d 739. Automobiles 355(13) Evidence was sufficient to show that defendant was acting with malice aforethought when he pointed his pistol at one person and fired the same and that such malice carried over to the killing of nearby victim despite claim of self-defense and accident. Potts v. State (Cr.App. 1973) 500 S.W.2d 156. Homicide 1193; Homicide 1205 Testimony by witness that she saw defendant standing outside building with pistol in his hand, and that she saw the blaze from the gun and decedent fall, and defendant's admission that he fired at one person intending to hit him and that all of a sudden the decedent fell was sufficient to sustain conviction of murder without malice under rule of transferred intent. Johnigan v. State (Cr.App. 1973) 502 S.W.2d 136. Homicide 1171 Evidence was sufficient to establish that defendant intentionally and knowingly attempted to kill occupant in vehicle by shooting at vehicle but instead caused the death of unintended victim to support conviction for murder, despite defendant's testimony that he did not know anyone in vehicle and that he did not intend to kill anyone; defendant and intended victim had been involved in earlier bar brawl, defendant went home to retrieve shotgun and pistol and returned to bar, eyewitnesses saw defendant aim gun at vehicle occupied by intended victim, defendant shot out passenger window where intended victim had been sitting, and defendant threw the guns into a lake when he found out that someone had died in shooting. Castillo v. State (App. 7 Dist. 2002) 71 S.W.3d 812, rehearing overruled, petition stricken, petition for discretionary review refused. Homicide 1135

Evidence in indictment providing that defendant stabbed victim with knife which caused victim's death was legally sufficient to authorize murder conviction; although defendant argued medical examiner indicated blunt trauma force to head could have caused victim's death, there was some evidence that stab wound to neck was contributing cause of death and was possibly fatal, even absent blunt force head injury. Biffel v. State (App. 2 Dist. 2003) 2003 WL 21476266, Unreported, petition for discretionary review refused, certiorari denied 124 S.Ct. 2102, 541 U.S. 1033, 158 L.Ed.2d 716. Homicide 879 Evidence was legally and factually sufficient to establish that defendant's conduct "caused" the victim's death, in support of conviction for murder, even though victim failed to continue recommended medical treatment for his quadriplegia following the shooting; victim died due to blood clots, medical examiner testified that the victim's use of cocaine did not increase the victim's risk of blood clots, and physical therapy and blood thinners would not have been recommended to treat the victim's quadriplegia if defendant had not shot victim. Deavila v. State (App. 5 Dist. 2004) 2004 WL 858912, Unreported, petition for discretionary review refused. Homicide 1174 22. Jury questions In prosecution for murder by cutting, defensive theory of deceased's death having resulted from deceased's father packing cobwebs in wounds, resulting in blood poisoning, should have been given to jury. Carney v. State (Cr.App. 1928) 109 Tex.Crim. 624, 6 S.W.2d 369. Homicide 1400 Whether motorist was intoxicated while driving upon public highways and whether, as direct result of such intoxication, motorist drove into automobile stopped on side of highway, killing person preparing to change tire of stopped automobile, so as to render motorist guilty of murder, was for jury. Collins v. State (Cr.App. 1936) 130 Tex.Crim. 386, 94 S.W.2d 443. Automobiles 356(13); Automobiles 356(13); Automobiles 356(13) The fact that a witness testified that when he reached scene of automobile collision, motorist was lying on ground and that his breath carried odor of whiskey, did not require reversal of conviction of negligent homicide, on ground that testimony showed that motorist was drunk and hence guilty of murder, since it was for jury to determine whether motorist was drunk. Moore v. State (Cr.App. 1941) 141 Tex.Crim. 570, 150 S.W.2d 91. Automobiles 355(13) 23. Instructions--In general Testimony that robbery was planned and defendant was told by another to shoot "the old man" if he gave them any trouble, thus showing an agreement to commit a robbery by use of firearms, and testimony that defendant was a participant in robbery when homicide took place constituted direct evidence to connect defendant with the robbery which resulted in death and rendered charge on circumstantial evidence unnecessary. Antwine v. State (Cr.App. 1972) 486 S.W.2d 578. Criminal Law 814(17) Evidence that defendant admitted severely beating victim on night that victim suffered numerous bruises over much of her body, that number of cuts, that she had lost a great deal of blood, and that trauma contributed to or predisposed her to react more acutely to

of her death, she suffered a her multiple spinal cord

shock, leading to cardiac arrest, which was ultimate cause of death, was sufficient to demonstrate that death was a result which would not have occurred but for acts and conduct of defendant, as charged in indictment, despite defendant's testimony that victim fell down stairs after beating, and thus, trial court properly instructed jury on causation pursuant to � 6.04. Thompson v. State (App. 9 Dist. 1983) 677 S.W.2d 73, petition for discretionary review refused. Homicide 1174; Homicide 1400 Defendant's actions caused serious injury, and thus jury instruction on lesserincluded offense of misdemeanor assault was not warranted on aggravated assault charge arising from bar altercation in which defendant hit victim in mouth with full beer bottle and victim fell straight back, hit his head on floor, and died at scene; defendant's expert conceded that victim suffered serious bodily injury simply from impact by bottle, and evidence reflected that victim would not have died but for blow from beer bottle causing him to fall back and hit his head. Ferrel v. State (Cr.App. 2001) 55 S.W.3d 586, on remand 2002 WL 480594. Assault And Battery 96(1) 24. ---- Concurrent cause, instructions Trial court, in instructing jury in involuntary manslaughter prosecution, was required to apply law of concurrent causation to facts in case and charge jury that if it found other driver's conduct clearly sufficient to cause accident and defendant's conduct clearly insufficient to cause accident, they should acquit defendant, in light of assumption that charge on concurrent cause was required. Nugent v. State (App. 13 Dist. 1988) 749 S.W.2d 595. Automobiles 357(13); Automobiles 357(13); Automobiles 357(13) Victim's conduct in jumping on hood of his car was not sufficient to produce his injuries, and thus, defendant charged with assault with dangerous weapon, specifically, the car, in driving car with victim hanging on hood, was not entitled to charge on concurrent causation. Goodin v. State (App. 13 Dist. 1988) 750 S.W.2d 857, petition for discretionary review refused, rehearing on petition for discretionary review denied. Automobiles 357(14); Automobiles 357(14); Automobiles 357(14) Jury instruction on concurrent causation and definition of death were not required in murder case, due to use of life support system on victim. Branch v. State (App. 8 Dist. 1989) 774 S.W.2d 781, petition for discretionary review refused. Homicide 1400 Charge on concurrent causation was not required in prosecution for injury to an elderly person in the absence of evidence that defendant's conduct was clearly insufficient to cause the result. Contreras v. State (App. 13 Dist. 1992) 838 S.W.2d 594, rehearing overruled, petition for discretionary review refused. Assault And Battery 96(1) Driver's delay in taking shooting victim to hospital could not have been concurrent cause of victim's death, so as to entitle defendant to instruction on concurrent cause, where only testimony concerning victim's mental condition was provided by forensic pathologist who testified that wound was of type inevitably fatal and there was no evidence that any shorter time in bringing victim to hospital would have had any effect whatsoever on her likelihood of survival. Murray v. State (App. 6 Dist. 1993) 861 S.W.2d 47, petition for discretionary review refused. Homicide 1400

To be entitled to "concurrent causation" charge, record must hold some semblance of evidence that concurrent cause was clearly sufficient to produce results and conduct of defendant was clearly insufficient to produce results. Hutcheson v. State (App. 7 Dist. 1995) 899 S.W.2d 39, petition for discretionary review refused. Criminal Law 770(1) Any error in trial court's failure to instruct jury on issue of "but for" causation in prosecution for causing injury to a child by omission did not cause egregious harm to defendant and did not require reversal, where defendant did not object to instructions as given and defense counsel was permitted to argue to the jury that another person, not the defendant, had murdered one of defendant's children and injured another. Patterson v. State (App. 2 Dist. 2001) 46 S.W.3d 294, appeal after new sentencing hearing 101 S.W.3d 150, petition for discretionary review refused. Criminal Law 1173.2(2) If a concurrent cause is present, there are two possible ways in which the "but for" causation requirement may be satisfied: (1) the defendant's conduct may be sufficient, by itself, to have caused the result notwithstanding any concurrent cause, or (2) the defendant's conduct and a concurrent cause together may be sufficient to have caused the result. Otto v. State (App. 4 Dist. 2004) 141 S.W.3d 238, petition for discretionary review granted, remanded 173 S.W.3d 70, on remand 2006 WL 1814176. Criminal Law 26 Concurrent causation charge to jury did not contradict instruction that jury was required to find that defendant's intoxication was caused solely by introduction of alcohol into her body nor did it permit defendant to be convicted on theory not alleged in indictment; instruction clarified defendant's culpability, allowing jury to find her responsible for her actions only if intoxication would not have occurred but for her conduct, whether taken alone or in conjunction with another cause, and charge added defense, mandating that jury could not convict defendant if her actions, alone, were clearly insufficient to have caused her intoxication and concurrent cause, alone, was clearly sufficient to have caused it. Otto v. State (App. 4 Dist. 2004) 141 S.W.3d 238, petition for discretionary review granted, remanded 173 S.W.3d 70, on remand 2006 WL 1814176. Criminal Law 822(6) Defendant in murder prosecution failed to establish that he was entitled to a jury instruction on concurrent causation even though defendant argued that his girlfriend's independent act of opening her car door while defendant was driving and hitting the victim with it caused the victim's death; defendant presented no evidence that the concurrent cause was sufficient by itself to cause the victim's death, and defendant's act of driving his car and hitting the victim could have been sufficient by itself to cause the death of victim. Bell v. State (App. 2 Dist. 2005) 169 S.W.3d 384, petition for discretionary review refused. Automobiles 357(13) Charge on concurrent causation was not warranted in prosecution of defendant corporation for violation of water code by discharging chicken waste into storm drain after accidental spill, since the evidence, rather than showing the corporation's employees' conduct insufficient to have caused the result, in fact showed that they, with others, personally participated in the ineffective containment and cleanup. Griffin Industries v. State (App. 13 Dist. 2005) 171 S.W.3d 414, petition for discretionary review refused, rehearing on petition for discretionary review denied. Environmental Law 760 25. ---- Cause of death, instructions

Only in case there should be evidence tending to raise the issue that deceased may have died from some other cause than the infliction of the wound would the court be required to charge specifically on this subject. Wood v. State (1893) 31 Tex.Crim. 571, 21 S.W. 602; Smith v. State (1894) 33 Tex.Crim. 513, 27 S.W. 137; Outley v. State (Cr.App.1907) 99 S.W. 95. The following charge was held to be correct: "Homicide is the destruction of the life of one human being by the act, procurement, or culpable omission of another. The destruction of life must be complete by such act or agency. But, although the injury which caused death might not, under other circumstances, have proved fatal, yet, if such injury be the cause of death, without its appearing that there has been any great neglect, or manifest improper treatment by some other person, such as a physician, nurse, or other attendant, it would be homicide; and if the jury are satisfied, from the evidence, that some one shot the deceased, and inflicted upon him a wound, which was not in itself necessarily mortal, and that the wound inflicted produced blood poisoning, or any other effect which would result in the death of the deceased, the party inflicting the injury would be as guilty as if the wound would of itself inevitably lead to death." Hart v. State (1883) 15 Tex.Crim. 202, 49 Am.Rep. 188. See this subject fully discussed in Morgan v. State (1884) 16 Tex.Crim. 593. Where the court had given a proper charge in accordance with Vernon's Ann.P.C. art. 1202 (repealed), it was not proper for him to give a requested charge to the effect that if the deceased was shot, but the wound thereby inflicted was not necessarily fatal and the wounded party was suffering from or afflicted with a disease not connected with or superinduced by the shot and died therefrom, then the appellant should be acquitted. If the deceased would have shortly died from Bright's disease and it was an incurable malady, yet if appellant's shot assisted in bringing about the death he would be guilty of the homicide. Gardner v. State (Cr.App. 1903) 44 Tex.Crim. 572, 73 S.W. 13. When the deceased lived 18 days after receiving the wound but the evidence showed that the wound caused his death the court need not charge Vernon's Ann.P.C. art. 1202 (repealed). Lahue v. State (Cr.App. 1907) 51 Tex.Crim. 159, 101 S.W. 1008. In murder prosecution against motorist colliding with deceased's automobile while intoxicated, charge sufficiently presented propositions that jury must find beyond reasonable doubt that accused's acts, while engaged in committing felony, caused deceased's death, and that death did not result from deceased's acts. Jones v. State (Cr.App. 1934) 127 Tex.Crim. 227, 75 S.W.2d 683. Automobiles 357(13); Automobiles 357(13); Automobiles 357(13) Where pathologist testified that both wounds, one inflicted by defendant and one inflicted by police, were sufficient to cause victim's death, defendant was not entitled to concurrent causation instruction in the absence of evidence that defendant's wound was "clearly insufficient" to cause victim's death. Hutcheson v. State (App. 7 Dist. 1995) 899 S.W.2d 39, petition for discretionary review refused. Homicide 1400 Defendant's conduct was not clearly insufficient to cause victim's death and, thus, defendant was not entitled to instruction on concurrent causation in capital murder prosecution arising from murder committed in course of robbery; defendant and his accomplice each fired two shots, three of bullets were fatal, and, thus, defendant must have fired at least one fatal shot. McFarland v. State (Cr.App. 1996) 928 S.W.2d 482, rehearing denied, certiorari denied 117 S.Ct. 966, 519 U.S. 1119, 136 L.Ed.2d 851, habeas corpus denied 163 S.W.3d 743. Homicide 1400

26. ---- Contributed to cause of death, instructions In murder without malice prosecution of a motorist who drove on a public highway while allegedly intoxicated and accidentally killed another, trial court properly refused to give motorist's instruction that if they found that deceased caused or contributed to the cause of his death by his own acts of carelessness, jury should acquit motorist, since deceased's contributory negligence would be no defense. Fox v. State (Cr.App. 1942) 145 Tex.Crim. 71, 165 S.W.2d 733. Automobiles 346; Automobiles 357(13); Automobiles 357(13); Automobiles 357(13) Use of term "contributed," in concurrent cause instruction stating that defendant was guilty of involuntary manslaughter due to operation of motor vehicle if his intoxication "contributed to cause" victim's death, without any restriction on the degree of contribution required, lessened the burden of proof for the State as to causation and, thus, was error, requiring remand to Court of Appeals to determine whether there was "some harm" to defendant from the error. Robbins v. State (Cr.App. 1986) 717 S.W.2d 348, on remand 716 S.W.2d 117. Criminal Law 1181.5(3.1) Inclusion of phrase "contributed to cause" in jury instructions stating that defendant could be convicted of involuntary manslaughter upon jury's finding from evidence beyond reasonable doubt that intoxication, if any, of defendant caused or contributed to cause death of other driver was error. Crabb v. State (Cr.App. 1986) 717 S.W.2d 353, on remand 729 S.W.2d 383, petition for discretionary review refused. Automobiles 357(13); Automobiles 357(13); Automobiles 357(13) Involuntary manslaughter defendant's objection at trial that "or contributed to" language should be deleted from instruction that read "by reason of such intoxication caused or contributed to cause the death of an individual" did not preserve for appellate review his claim that jury charge was erroneous because it stated that he was guilty even if his intoxication only contributed to cause death. Standerford v. State (App. 2 Dist. 1996) 928 S.W.2d 688, rehearing overruled. Criminal Law 1043(3) Jury instruction applying law of concurrent causation to facts of case was not warranted in murder prosecution; even if blows inflicted on victim by defendant were clearly insufficient to cause victim's death, nothing in the record showed that the three to four blows to victim's back that defendant allegedly watched his brother inflict as defendant was leaving alley were clearly sufficient to cause victim's death, and medical examiner testified that victim's heart condition, bypass surgery, intoxication, and drug use did not cause his death. Phillips v. State (App. 5 Dist. 2002) 2002 WL 31478763, Unreported. Homicide 1400 27. ---- Intent, generally, instructions Charge was sufficient without specifying necessity of specific intent to kill. Whiteside v. State (Cr.App. 1930) 115 Tex.Crim. 274, 29 S.W.2d 399. Any error in jury instruction on criminal responsibility, in capital murder prosecution, implying that intent requirement applied to defendant's conduct rather than to result thereof, was cured by trial court's giving of instruction requiring jury to find beyond reasonable doubt that defendant knowingly or intentionally caused victim's death, which language closely tracked applicable state murder statute. Henderson v. Dretke, C.A.5 (Tex.)2006, 164 Fed.Appx. 506, 2006 WL 197597, Unreported. Criminal Law 823(5)

28. ---- Assault with intent to murder, instructions An instruction to find defendant guilty of assault with intent to murder with or without malice, if he undertook to assault named person with a rifle, with intent to kill him, and unintentionally assaulted another with intent to kill him, was erroneous as failing to embody elements of rule that one mistakenly shooting at another than person whom he intends to kill is guilty of assault with intent to murder. Kitchens v. State (Cr.App. 1946) 149 Tex.Crim. 135, 192 S.W.2d 449. Homicide 1377 Evidence that defendant, while engaged in fist fight with certain person, was struck and knocked down by a beer bottle thrown at defendant by some other person, authorized instruction to convict of assault with intent to commit murder, if defendant intended to kill person with whom he was fighting or another, but shot prosecuting witness by mistake. Johnson v. State (Cr.App. 1948) 151 Tex.Crim. 405, 208 S.W.2d 94. Homicide 1377 Charge which authorized conviction of assault with intent to murder, upon finding by jury that defendant shot one person while intending to shoot another, was proper. Hayes v. State (Cr.App. 1962) 171 Tex.Crim. 646, 353 S.W.2d 25. Homicide 1377 29. ---- Transferred intent, instructions Where court submitted to jury both theory that defendant fired at prosecuting witness by mistake, with intent to kill another, and theory that he fired with intent to kill prosecuting witness, and erroneously instructed jury to find defendant guilty, if he undertook to assault such other person with intent to kill him and unintentionally assaulted prosecuting witness with intent to kill him, conviction of assault with intent to murder prosecuting witness without malice was not sustainable on theory that shooting at such witness was in such reckless and dangerous manner and in such disregard of others' rights as to imply malice. Kitchens v. State (Cr.App. 1946) 149 Tex.Crim. 135, 192 S.W.2d 449. Criminal Law 1172.1(3) Charge on transferred intent can be proper even though indictment did not specify that theory. Garcia v. State (App. 13 Dist. 1990) 791 S.W.2d 279, petition for discretionary review refused. Criminal Law 814(6) Inclusion in murder charge to jury of paragraph permitting conviction transferred intent was proper even though not specified in indictment evidence indicated that defendant intended to kill one man but killed result of mistaken identity. Garcia v. State (App. 13 Dist. 1990) 791 petition for discretionary review refused. Criminal Law 814(6)

on theory of where victim as S.W.2d 279,

Abstract instruction regarding theory of "transferred intent," without specific application to facts of capital murder case, did not improperly authorize conviction without requiring jury specifically to find intentional killing; court's application of law to facts necessarily limited its abstract instruction on law of transferred intent so as to require finding of all and only those elements necessary for conviction before guilty verdict might be returned. Lewis v. State (Cr.App. 1991) 815 S.W.2d 560, rehearing denied, certiorari denied 112 S.Ct. 1296, 503 U.S. 920, 117 L.Ed.2d 519. Criminal Law 814(6); Homicide 1389

In cases where defendant intends to shoot one person, but misses and strikes another, state must request that jury be instructed on law of transferred intent or else it must sustain higher burden of proving the defendant actually intended to shoot victim, rather than person at whom he aimed. Martinez v. State (App. 4 Dist. 1992) 844 S.W.2d 279, petition for discretionary review refused. Homicide 931; Homicide 1389 Charge in murder prosecution which contained outline of principle of transferred intent found in Texas Penal Code but did not contain any language applying law of transferred intent to facts of case did not properly place transferred intent before jury, and, thus, allowing prosecution to argue transferred intent theory to jury was reversible error; theory eased burden of proof on state as it permitted state to prove only that defendants intended to kill someone and not victims in particular. Sandoval v. State (App. 13 Dist. 1992) 846 S.W.2d 9, on rehearing, petition for discretionary review refused. Criminal Law 718; Criminal Law 814(6); Criminal Law 1171.1(3) For legal issue such as transferred intent to be properly before jury, it must appear in section of charge in which law is applied to facts of the case; abstract paragraph on theory of law is not sufficient. Sandoval v. State (App. 13 Dist. 1992) 846 S.W.2d 9, on rehearing, petition for discretionary review refused. Criminal Law 813; Criminal Law 814(6) Theory of transferred intent could be incorporated in jury instruction in trial for murder of unintended victim, even though theory of transferred intent was not charged in original indictment. Castillo v. State (App. 7 Dist. 2002) 71 S.W.3d 812, rehearing overruled, petition stricken, petition for discretionary review refused. Homicide 1389 Jury instruction regarding transferred intent did not sufficiently direct the jury that it had to find that acts taken by defendant to show transferred intent were done knowingly or intentionally; instruction informed jurors that they could convict for murder of unintended victim only if they found actions directed toward individual that defendant wanted to kill were done with the requisite intent. Castillo v. State (App. 7 Dist. 2002) 71 S.W.3d 812, rehearing overruled, petition stricken, petition for discretionary review refused. Homicide 1389 Trial court's instruction to jury on transferred intent in regard to arson charge, in which court charged that defendant was criminally responsible for causing a result if only difference between what actually intended and what occurred was that different property was damaged, was error; evidence was sufficient to support defendant's guilt under doctrine of transferred intent that allowed for liability when the only difference between what defendant intended and what occurred was that a different offense was committed. Loredo v. State (App. 14 Dist. 2004) 130 S.W.3d 275, petition for discretionary review refused. Arson 41 The trial court's submission of a supplemental charge to the jury on the issue of transferred intent was proper, even though the State failed to object to the original jury charge on the issue; the original charge on transferred intent was erroneous because it did not include an application paragraph, the court provided the supplemental jury charge applying the law of transferred intent to the facts of the case before a verdict was rendered, and the State was not required to object to the original jury charge to preserve error since the State did not appeal the issue. Bell v. State (App. 2 Dist. 2005) 169 S.W.3d 384, petition for discretionary review refused. Criminal Law 818 30. ---- Accident or mistake, instructions

In prosecution for murder, evidence warranted instruction on law relating to an act done by mistake, under which one intending to commit a felony and committing another act in the meantime by mistake, which if voluntarily done would be a felony, is subject to the punishment affixed for the felony actually committed. McElroy v. State (Cr.App. 1938) 134 Tex.Crim. 445, 115 S.W.2d 971. Homicide 1492 Where defendant in murder prosecution was charged with intentionally killing deceased who had been shot more than once, even if the first shot was accidental and inflicted the fatal wound, defendant would not have been entitled to requested instruction directing acquittal where defendant, according to his own statement, was voluntarily engaged in the commission of a felony at time of homicide. Walker v. State (Cr.App. 1939) 138 Tex.Crim. 343, 135 S.W.2d 992. Homicide 607 Defendant's requested charge that if jury believed from evidence that defendant, while committing a misdemeanor, by accident or mistake committed a felony, he could only be given minimum penalty for offense of failing to stop and render aid to pedestrian struck by his automobile was properly refused as not authorized by evidence, where it did not appear that defendant by accident or mistake failed to stop and render aid. Taylor v. State (Cr.App. 1946) 149 Tex.Crim. 552, 196 S.W.2d 925. Criminal Law 814(3) An instruction that, if jury found from evidence that defendant shot decedent by accident and not while intending to commit robbery, jury should acquit defendant, was not subject to objection that it was a comment on weight of evidence, that it restricted defendant's rights with reference to an affirmative charge on accidental killing, that it was an undue emphasis on state's theory of case and prejudicial and did not make an application of the law to the facts as testified by defendant. Cook v. State (Cr.App. 1948) 152 Tex.Crim. 51, 211 S.W.2d 224. Criminal Law 763(1); Criminal Law 811(1); Criminal Law 814(8); Homicide 1492 Instruction that, if defendant killed deceased by shooting him with a gun through mistake or accident while intending to commit offense of robbery or while in act of preparing for or executing offense of robbery, defendant should be found guilty of murder with malice, was proper under the evidence. Cook v. State (Cr.App. 1948) 152 Tex.Crim. 51, 211 S.W.2d 224. Homicide 1421 Where defendant shot one person when he intended to shoot another, defendant, charged with murder, was not entitled to a charge authorizing an acquittal upon theory of an accidental killing, but was entitled to submission of all defenses which should have been submitted had he killed person intended. Hodges v. State (Cr.App. 1954) 160 Tex.Crim. 579, 272 S.W.2d 902. Homicide 1492 In prosecution for murder with malice, where evidence failed to disclose that defendant had abandoned a design to commit sodomy upon the victim and failed to disclose if victim had died from the sodomy or from the effect of later being stuffed into an old refrigerator, it was not error to charge the jury that if one intended to commit a certain act and through mistake or accident did some other act which, if voluntarily done, would be a felony, one could be found guilty of the crime actually committed. Johnson v. State (Cr.App. 1960) 169 Tex.Crim. 612, 336 S.W.2d 175, certiorari denied 81 S.Ct. 355, 364 U.S. 927, 5 L.Ed.2d 267. Criminal Law 790 When homicide is committed while in the act of preparing to commit a felony, accident is eliminated as a defense and instruction properly incorporated that restriction. Marrufo v. State (Cr.App. 1962) 172 Tex.Crim. 398, 357 S.W.2d 761. Homicide 1492

In view of testimony of two witnesses that defendant charged with murder had declared intention to get decedent's money when decedent returned to house, that defendant placed butcher knife in back pocket, and that he drew knife from pocket and used it to fatally stab decedent, charge on accident, which defendant sought to establish as defense, was properly limited in accordance with terms of Vernon's Ann.P.C. art. 42 (repealed) eliminating accident as defense when homicide is committed while in act of preparing to commit felony. Cobb v. State (Cr.App. 1965) 386 S.W.2d 811. Homicide 1492 It is proper for trial court to refuse to charge jury on law of accident as a defense in murder cases where killing was committed while defendant was preparing or committing a felony. Caraway v. State (Cr.App. 1971) 489 S.W.2d 106. Homicide 1492 30.5. ---- Arson, instructions Trial court's error, in giving improper transferred intent instruction in regard to arson offense, was harmless; abstract portion of the jury charge correctly stated the elements of arson, and evidence was such that the jury could have believed defendant was guilty of arson either as a party, as a principal, or as a co-conspirator. Loredo v. State (App. 14 Dist. 2004) 130 S.W.3d 275, petition for discretionary review refused. Criminal Law 1172.1(3) 31. ---- Neglect and improper treatment, instructions Where the facts warrant it, an affirmative charge should be given to the effect that if the wound was not necessarily of a fatal character, and would not of itself have caused death, but that deceased died from blood poisoning superinduced either by gross neglect or manifestly improper treatment by deceased or those in attendance upon him, defendant would not be responsible for his death. Johnson v. State (1901) 43 Tex.Crim. 283, 65 S.W. 92, 94; Armsworthy v. State (1905) 48 Tex.Crim. 413, 88 S.W. 215. Where the evidence showed that the wound was not necessarily fatal, and that death might have ensued from deceased's neglect to have the wound treated, the court had to charge Vernon's Ann.P.C. repealed arts. 1201, 1202, and apply them to the facts of the case. Noble v. State (Cr.App. 1908) 54 Tex.Crim. 436, 113 S.W. 281. The court, after defining homicide, charged that, though the injury which caused death might not, under other circumstances, have proved fatal, if it be the cause of death, without gross neglect or improper treatment by some other person, such as a physician, nurse, or other attendant, it would be homicide; and, if some one cut deceased and inflicted a wound, not in itself necessarily mortal, and it produced peritonitis or any other effect resulting in his death, the party inflicting the injury would be as guilty as if the wound of itself would inevitably lead to death. While correct as far as it went, the charge was not sufficient to present fully an issue as to whether improper treatment brought about peritonitis which resulted fatally, and accused was entitled to a requested instruction that, if death was brought about by improper treatment or gross neglect of the physicians, he would not be guilty. McMillan v. State (Cr.App. 1910) 58 Tex.Crim. 525, 126 S.W. 875. Homicide 1400 Instructions that if accused inflicted wounds not necessarily fatal, but from the

effects of which decedent died, accused was guilty of some degree of homicide unless decedent died from her own gross neglect, such as failure to obey instructions of her attending physician, but that if she was guilty of such gross neglect, and the neglect operating with the wounds, caused her death, which would not probably have resulted but for such neglect or if the jury had a reasonable doubt as to whether such were the facts, accused should be acquitted of any degree of homicide, etc., sufficiently presented an issue whether decedent's death was caused by her walking around, whereas the physician had told her to remain in bed. Pettis v. State (Cr.App. 1912) 68 Tex.Crim. 221, 150 S.W. 790. Where decedent's attending physician testified that the wound inflicted by accused was not necessarily fatal, that decedent's life might have been saved by an operation which the witness desired to perform, but was forbidden to do so by decedent's mother, who had him in charge, and that she administered to him certain medicine which was detrimental and which witness told her not to give, entitled accused to a charge on negligence and improper treatment by others. Masters v. State (Cr.App. 1913) 71 Tex.Crim. 608, 160 S.W. 693. In a prosecution for homicide, where it was shown that shortly after he was shot, deceased was taken to a nearby house; that unsuccessful efforts were made to secure a doctor; that next day deceased was removed to a town where he was attended by a physician, but died shortly thereafter, and the doctor testified that the wound which extended from the upper left side through the lungs, liver, and intestines and lodged in the right hip was necessarily fatal--the court properly refused to instruct on the issue of negligence and gross mistreatment as the cause of death. Francis v. State (Cr.App. 1914) 75 Tex.Crim. 362, 170 S.W. 779. In murder prosecution omitting instruction regarding improper treatment of deceased was not error, where there was no evidence that operation performed on deceased was improper. Wright v. State (Cr.App. 1929) 113 Tex.Crim. 297, 21 S.W.2d 507. Criminal Law 814(8) Though death would not have occurred without the injury for which accused is responsible, proof of gross neglect or improper treatment requires an instruction that, if such death was brought about by improper treatment or gross neglect of the physician, accused is not guilty of homicide. Lerma v. State (Cr.App. 1947) 150 Tex.Crim. 360, 200 S.W.2d 635. Homicide 1400 32. ---- Murder, instructions An instruction that where A. in attempting to kill B. kills C., it is murder in the first degree, is erroneous. But if the defendant was found guilty of murder in the second degree, the error will be immaterial. Taylor v. State (1878) 3 Tex.Crim. 387. Where a husband, on trial for the murder of his wife, was shown to have been in a quarrel with a neighbor in the former's door-yard, and was waving a pistol, and threatening, without any apparent intention, to shoot, and his wife was shot upon coming to the door, and urging him to come in, and her dying declarations were that the shooting was accidental while trying to take the pistol from her husband's hand, it was error to refuse to instruct the jury on the law of negligent homicide. Howard v. State (App. 1888) 8 S.W. 929. Homicide 1135; Homicide 1205 Where, on the trial of an alleged accomplice to a homicide, in which it was the

state's contention that accused hired R. to kill M., and that R. killed A. by mistake, believing that he was M., the court charged in the language of Vernon's Ann.P.C. art. 73 (repealed), except that he substituted for the quoted words "murder in the second degree," and also correctly told the jury what the punishment was for murder in the second degree, the instruction could not have misled the jury; accused, if guilty at all, being guilty of murder in the second degree. Cooper v. State (Cr.App. 1915) 77 Tex.Crim. 209, 177 S.W. 975. Charge in murder prosecution respecting defendant driving automobile against deceased voluntarily and with malice aforethought was erroneous as without support in evidence. Burton v. State (Cr.App. 1932) 122 Tex.Crim. 363, 55 S.W.2d 813. Automobiles 357(13); Automobiles 357(13); Automobiles 357(13) In prosecution for murder, where evidence showed that accused who merely pushed deceased to ground when attacked by deceased was not present when deceased, severely injured, was removed to vacant lot by others, and had no knowledge thereof, instruction based on Vernon's Ann.P.C. art. 1203 (repealed) was error. Teals v. State (Cr.App. 1934) 127 Tex.Crim. 198, 75 S.W.2d 678. Criminal Law 814(5) Instruction that if accused was undertaking to shoot and kill a third person without malice aforethought and unintentionally killed deceased, accused was guilty of murder without malice aforethought, unless acquitted under the law of self-defense as given in main charge, was not error, especially in view of charge given on self-defense, as against contention that instruction was on the weight of the evidence. Martin v. State (Cr.App. 1938) 134 Tex.Crim. 379, 115 S.W.2d 913. Criminal Law 823(2) Vernon's Ann.C.C.P.1925, art. 695 (see, now, art. 37.09), providing that a murder charge includes all the lesser degrees of culpable homicide carries with it a charge of negligent homicide, and hence where accused was indicted for murder without malice, he could not complain because his case was presented to the jury under a charge of negligent homicide in the second degree. Wallace v. State (Cr.App. 1943) 145 Tex.Crim. 625, 170 S.W.2d 762. Homicide 1375 In murder trial at which defendant testified that one of the purposes he had in attacking deceased officer was to flee from scene where he was stopped while driving stolen automobile, there was no error in submission of instruction as to the elements of the crime of theft. Guerra v. State (Cr.App. 1972) 478 S.W.2d 483. Homicide 1398 Where court, in prosecution for murder with malice properly defined malice in its charge and instructed jury that if they found deceased was killed during commission, or attempted commission, of robbery in which defendant was participating they should find him guilty of murder with malice and if they did not so believe they should find him not guilty, and where defendant made no objection to the charge and did not request any special instructions, conviction would not be reversed on ground evidence was insufficient to show that murder was committed with malice. Hamilton v. State (Cr.App. 1972) 480 S.W.2d 685. Homicide 1136 Charge requiring jury to find, in order to convict, that killing was committed while defendant was preparing for or executing the offense of robbery and that it was committed with malice aforethought was proper under evidence showing defendant charged by indictment with murder with malice aforethought, killed deceased on date alleged in indictment by choking him with a cord. Caraway v. State (Cr.App. 1971) 489 S.W.2d 106. Homicide 1421

33. ---- Intoxicated driving, instructions An indictment for murder charging that accused unlawfully drove a truck while intoxicated striking a pedestrian through mistake and accident did not comprehend the offense of negligent homicide and hence refusal to instruct thereon was not error. Totten v. State (Cr.App. 1937) 134 Tex.Crim. 62, 113 S.W.2d 194. Automobiles 351.1; Automobiles 357(13); Automobiles 357(13); Automobiles 357(13) In prosecution against intoxicated motorist for homicide, refusal to instruct that jury could find that defendant was intoxicated at time of alleged accident only if they found beyond reasonable doubt that defendant had taken into his system excessive quantities of intoxicating liquor, and that effect of such excessive quantities would deprive defendant of his normal physical and mental faculties, was not error. Moynahan v. State (Cr.App. 1941) 140 Tex.Crim. 540, 146 S.W.2d 376. Automobiles 357(13); Automobiles 357(13); Automobiles 357(13) In prosecution against motorist for homicide while motorist was driving under influence of intoxicating liquor, instruction that Vernon's Ann.P.C. art. 42 (repealed) provided that person intending to commit a felony and who, in act of preparing for or executing felony, shall, through mistake or accident, do another act which, if voluntarily done, would be a felony, shall receive punishment affixed to felony actually committed, was not error, as against contention that applicable statute was art. 1241 (repealed), providing that a killing without apparent intention to kill, in the execution or attempt to execute a felony, is not negligent homicide. Moynahan v. State (Cr.App. 1941) 140 Tex.Crim. 540, 146 S.W.2d 376. Automobiles 357(13); Automobiles 357(13); Automobiles 357(13) In murder without malice prosecution of a motorist who drove on a public highway while allegedly intoxicated and accidentally killed another, trial court did not err under the evidence in failing to instruct jury on the law of "circumstantial evidence". Fox v. State (Cr.App. 1942) 145 Tex.Crim. 71, 165 S.W.2d 733. Criminal Law 814(17) Jury instruction in trial of defendant for causing serious bodily injury by driving while intoxicated which dealt with causation was synonymous with language of this section and thus, was properly given. Mitchell v. State (App. 2 Dist. 1988) 750 S.W.2d 378, petition for discretionary review refused. Criminal Law 808.5 Erroneous jury instruction on causation in trial for felony driving while intoxicated (DWI), which expanded on allegations in indictment and thus allowed a conviction on a theory not alleged by allowing jury to find defendant guilty if it found that she was intoxicated either by introduction of alcohol into her body or by introduction of unknown drugs concurrently, was not harmless; evidence supported a conclusion that defendant was intoxicated on drugs and alcohol, instruction allowed a conviction based on intoxication due to drugs and alcohol, and the state argued for jury to find defendant guilty if it found her to be intoxicated due to drugs and alcohol. Otto v. State (App. 4 Dist. 2006) 2006 WL 1814176. Criminal Law 1172.1(3) Instruction allowing jury to find defendant guilty of felony driving while intoxicated (DWI) if it found that she was intoxicated either by introduction of alcohol into her body or by introduction of unknown drugs concurrently with alcohol expanded on allegations in indictment and, thus, allowed a conviction on a theory not previously alleged, where indictment alleged that defendant was

intoxicated by alcohol alone. Otto v. State (App. 4 Dist. 2006) 2006 WL 1814176. Automobiles 352 34. Verdict In prosecution for murder where charge authorized jury to find defendant guilty of murder with malice if they found beyond a reasonable doubt that defendant, either alone or as a principal, killed the deceased in one of five possible ways, and jury returned a general verdict finding defendant guilty of murder with malice but without indicating which act the guilt was predicated upon, the conviction was applied to the acts finding support in the evidence. Johnson v. State (Cr.App. 1960) 169 Tex.Crim. 612, 336 S.W.2d 175, certiorari denied 81 S.Ct. 355, 364 U.S. 927, 5 L.Ed.2d 267. Homicide 1558 35. Sentence and punishment Where man's death was accidentally caused during commission of arson, though not intended or reasonably foreseen by principals to arson, punishment of accomplice to arson, on conviction of being accomplice to murder, would be by penitentiary confinement for not less than 2 nor more than 5 years, in absence of evidence that death was killing upon malice aforethought. Ward v. State (Cr.App. 1937) 133 Tex.Crim. 110, 109 S.W.2d 207. Homicide 1567; Sentencing And Punishment 68 Where defendant was convicted of killing another while driving an automobile in an intoxicated condition, the judgment and sentence declaring defendant to be guilty of driving an automobile while intoxicated would be reformed to follow the verdict and show the proper offense for which conviction was had. Flowers v. State (Cr.App. 1947) 150 Tex.Crim. 467, 203 S.W.2d 539. Criminal Law 1184(2) Trial court, in prosecution for robbery by use of firearm, did not err in assessing punishment of 25 years against defendant, who took police officer's pistol while resisting arrest and seeking to escape from custody, instead of minimum for robbery of 5 years, even if defendant intended to commit misdemeanor offense of resisting arrest or aggravated assault upon police officer and robbery was result of a mistake, as resisting arrest by use of gun is a felony rather than misdemeanor. Stout v. State (Cr.App. 1971) 467 S.W.2d 409. Robbery 30 36. Review Where state sought conviction for murder relating to commission of felony through mistake or accident, and there was no testimony tending to show that defendant intended to kill deceased, charging Vernon's Ann.P.C. art. 42 (repealed), which failed to note part of said article relating to act of preparing for or executing intent to commit felony was error. Alsup v. State (Cr.App. 1935) 129 Tex.Crim. 391, 87 S.W.2d 1098. Criminal Law 808.5 In prosecution for murder with malice in which state's attorney had asked a witness if the defendant had ever committed rectal sodomy upon the witness and defendant's attorney was forced to ask that the jury be retired for argument on the issue of a possible mistrial because of the question but where trial court instructed jury to disregard the question, no reversible error was committed. Johnson v. State (Cr.App. 1960) 169 Tex.Crim. 612, 336 S.W.2d 175, certiorari

denied 81 S.Ct. 355, 364 U.S. 927, 5 L.Ed.2d 267 Criminal Law

730(3)

Defendant failed to preserve for appellate review his claim that trial court erroneously denied his request for a jury instruction on concurrent causation, where defendant requested an instruction that simply provided for non-liability if a passenger does not wear their seatbelt, and not a concurrent cause of the injury resulting in death. Stewart v. State (App. 10 Dist. 2002) 70 S.W.3d 309, petition for discretionary review refused. Criminal Law 1038.3 V. T. C. A., Penal Code � 6.04, TX PENAL � 6.04 Current through the end of the 2006 3rd Called Session of the 79th Legislature. � 2006 Thomson/West END OF DOCUMENT (C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.