NO. 07-01-061-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B FEBRUARY

19, 2002

______________________________

ROY CASTILLO, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 181 ST DISTRIC T COURT O F POTT ER COUNTY; NO. 40,537-B; HON. JOHN BOARD, PRESIDING

_______________________________ Before Boyd, C.J., Quinn and Johnson, J.J. Roy Castillo (appellant) was conv icted by a jury of murder. Through seven issues, he alleges t hat 1) the jury charge was improper, 2) by omit ting an ins truction on tr

ansferred intent viz the lesser included off ense of mansl aughter, the t rial court commented on the weight of the evidence, 3) the evi dence was l egally and factually

insufficient, and 4)

the trial court erred in admitting an autopsy report since it was hearsay. We aff irm the judg ment.2 Background After being involved in a fight at a local pool hal l and its adjacent parking l ot, appellant

and a friend drove to appellan t’s home to obtain firea rm s, namely a pistol-grip shotgun and a 9mm pistol. Then they returned, w ith the weap ons, to the scene of the fight. Upon arriv ing at same, t he two ex ited their vehicle and beg an shoot i ng at a black car. Inside the car s at vari ous p eopl e in clu ding Ambr ose B usto s (B usto s), one of t h e participantsin the earlier fig ht, and Julian M oreno (Moreno). The latter w as struck i n the head by a bull et and killed. When appellant later

discover ed that someone had died as a resultof the shootin g, he threw the shotgun, the pi stol, and itsammun ition clip in T-Anchor Lake. In his confession to police, appe llant admitted firing his pi stol at the car and throwi ng the weapons in t he lake. The weapons were later recovered from the lake. The State indicted appellant for murd ering Mor eno. One o f i ts theories a t trial involved the concept

of transferred intent. That is, the State attempted toshow that though appellant

an d his f riend intended to kill Bustos, they succeeded in murderi ng Moreno. When both litig ants rested thei r respecti ve cases, the court char ged the jury . Inc lud ed therein were paragraphs informing the jury that they could convict appellant for murder if they found he intentionall y or know ingly caused the death of Mor eno or if he intended to kill Bustos but actua lly ki lled Moreno. So too did it instruct t he jury on the lesser i ncluded offense of manslaughter. The jury eventually found ap pellant guilty of murder.3 Issue One – Improper Jury Charge Appellant

initiall y contends t hat the trial court’s i nstruction concerni ng transferr ed intentw as improper. This is allegedly so for three reasons. First, the th eory was no t mentioned in the i ndictment. Second, the trial court wa s obligated to inform the jur y that it“mus t find that any ac tions taken by

[him] to show

transferred i ntent must be done knowingly

and intentional ly.” An d, third, w hile the inst ruction described the deadly weapon with wh ich a ppellant intended to kill Bustos, it failed to describe the particula r deadly weapon which resulted in Moreno’s death. W e overrule the contentions. As to the need to plea d transferred i ntent in the indi ctmen t as a pre requisite to mentioning it in the cha rge, we cite Dowden v. State , 758 S.W.2d 264 (Tex. Crim. App. 1988) and In re K.W.G. , 953 S.W.2d 483 (Tex. App.–Texarkana 1997 , pet. denied). Each holds that the theory

may be incorporat ed in the charge thoug h omitted from the indictment. Dowden v. State , 758 S.W.2d at 274; In re K.W.G. , 953 S.W.2d at 488. As to th e rem aini ng con tent ions , we feel the need to quote perti nent aspects of the indictment

and charge. Through the former , the State accused appell ant of “intentionally and knowingly

caus[ing] the death of . . . Jul ian Moreno, by shooting the said . . . Moreno with a deadly w

eapon, . . . a firear m.” Through thelatter, i.e. the charge, the court informed the jury

that: [1] [n]ow, if y

ou find from the evi dence be yond a reaso nable doubt that on or abou t the 24 th day of Februar y, 1999, in Potter County , Texas , th e Defendant, ROY CASTILLO , did the n and there intentiona lly or knowingly cause the death of an ind ividual, namelyJulian Mor eno, by shooting the said Julian Moreno with a dea dly weapon, to-wi t: a firearm, y ou will find the defendant guilty

of murder. . . [;]1 W hat appel lant means when all uding to t he “act ions t aken by Appel lant to show t ransfer red intent” is unc lear. T hus , we a re left to in terpr et the natu re of his ar gum ent.

2 By using the wor d “i ntendi ng” i n the app li cati on paragr aph and m entioning no other mens rea , it co uld be said that

the t ri al cour

t enhanced the bur den of t he Stat e or re stri cted the j ury ’s abi li ty to conv ict

form urder. For instan ce, th e om ission den ied the factf inde r the o ppo rtunity to co nvict if ap pellan t acte d “k now ingly.” And, such a mind set is su fficien t to se cur e a c onv iction fo r m urde r. T EX
. P EN
. C ODE
. A NN . §19. 02(b)( 1)(Ver non 1994) (stating that a p ers on c om m its murder if he int entionally or know ingly

causes the death of an individual). 4 [ 2] [y]ou a re further ins tructed that a pe rson is criminally responsible for causin g a resul t if the only difference between what actual ly occurred and what he desired, contemplated or ri sked is that adifferent person w as injured harmed or otherw ise affected. . .[; and] [3] [n]ow bearing in mind t he foregoing instruction s, if you bel ieve from the evidence beyond a reas onable doubt, that t he defendant, ROY C ASTILLO, on or about the 24 th day of Februar y, 1999, in the County of Pot ter and State of Texas, intendi ng to cause th e death of an indiv idual, Ambrose Leon Bustos, by shooting the said Ambros e Leon Bustos w ith a deadlyweapon, to-wit: a firearm, did then and t here caus e the deat h ofan in divid ual, nam ely, Julian Moren o, by s hooting the sa id Julian M oreno wit h a deadly w eapon, you will find the defendant guil ty of the offense of murder a nd so say by your verdict. W ith these provisions in mind, we turn to the arguments. Regarding the supposed need to i nstruct the j ury that th e “acts taken by appellan t to show transferred intent must be done knowinglyor int enti ona lly,” we see t wo possible interpretati ons of the appellant’s contention. 1 The first is that the court must inf orm the jury thatit can convict only if the actions directed towards the individ ual wh om appellant actuallywanted to kill were taken with the requis ite mens rea . Here, the trial court did just that. It informed the j urors th at they could convict onl y if appellant caused the death of Moreno while “ intending to cause the death of an indivi dual, Ambrose Leon Bustos . . . . ” 2 (Emphasis added)

. The second interpr

etation of appellant’s ar gument involves the supposed need to state that appellant acted with a particular mens re a towa rds Moreno as he caused the3 For inst ance, i f th e State was obliga ted to prove t hat appel lant int ended to cause the d eath of Moreno wh ile intending to kil l Bustos, there would b e no need to eve n ref er to B usto s. Inten ding to ca use the d eath of M oren o an d ca usin g it wou ld be e nou gh to war rant c onv iction. 5 death of Moreno while actually trying to kill B ustos. W e find this proposition me ritless based upon a plain readin g of §6.04(b) of the Penal Code. Though euphemisti cally called “transferred intent ,” the concept espoused in that s ection of the Code doe s not deal w ith intent or any other mens rea . Rather, it depicts an eff ortby the legisl atur e to cr imin alize
an act wh ich re sult ed in injur y o r h arm to someone other than the person to whom the injuryor harm was actually directed. As much c an be garnered from the wordi ng of the statute. In stating that one “is neverthelesscriminally responsible for causing a result if the only difference between what actua lly occurred and what he [intended, knew or risked] is that a different

person was” harmed or injured, the legis lature wa s addressing the results of the conduct. T EX
. P EN
. C ODE A NN . §6.04 (b)(2 ) (emphasis a dded). That is, it w as telling the public that i t did not matter who was hurt or affected by

the act. As long as the accused intended, knew or risked hurting or

affecting a particular

person and someonewas affected, the accused would be culpable for t he crime he tr ied to commit. So, acting with
a particular mens rea viz-a-viz the actual v ictim was

and is unimportant, and such a mens
rea need not be alleg ed nor proved. Indeed, if this were not s o, and if the State w er e required to allege a nd prove that the accused acted with a particular mens rea towards the ultimate victim, then their concept o f transferred inten t would be superfluous. 3 Fina lly, we address appellant’s contention about de scribing the nature of the deadly weapon used to cause thedeath of Moreno. He believes that it w as not enough to simply allude to it as a deadl y weapon; this was so despite the trial court’s description of it as a6

“fire arm” when allu ding to the dead ly weapon with which appellant intended to kill Bustos. This argument als o fails for reason s similar to those mentioned in the imm ediately preceding paragraph. Again, the gist of §6.04( b) invol ves cri minalizi ng conduct r esulting in someone’s inju ry or harm, irrespect ive of whe ther the person harmed or inj ured was the intended victim . And , in te lling the j ury wha t the y must find to convict when §6.04(b) is involved, the trial co urt need only allude to the ac

tual vic tim as the pers on who suffered harm or injury

meant for another. The expressed w ording of §6.04( b) requir es nothing
more when referring to the ac tual victim. So, the trial courtat bar was not obligated to tell the jury that to conv ict appellant, it had to find that he used a “f irearm” to kill Moreno; this is so since thenature of the deadly weapon had already be en described i n referring to the acts of appellant which were directed at Busto s. Issue Two –

Comment on the Evid ence Next, a ppella nt alleges that the trial court failed to incorporate t he concept of transferred intent into i ts instruct ion on the less er included offense of manslaughter. And, because it did not, t he instructi on given w as a comment on the evidence. We disagree and overrulethe point. First, it has been hel d thatthe failure to c harge the jur y on transferred intent

when submitting an instructi on on manslaughter is not a comment on the weig ht of the evidence. Juarez v. State , 886 S.W.2d 511, 515 (Tex. App.–Hou ston [1 st Dist.] 1994, pet. ref’d). Second, to the extent that the case cit ed by appellant , Garrett v. S tate , 624 S.W.2d 953 (Tex. App.–San Antonio 1981), rev’d on other grounds , 642 S.W.2d 779 (Tex. Crim. App. 1982), suggests

otherwis e, we note tha t the Garrett holding w

as dep endent u pon the4 Manslaught er impli cates t he mens rea of rec kles sne ss. See T EX
. P EN
. C ODE A NN . §19. 04 (Vernon

19 94 ) (s tatin g th at a pe rs on co m m its m an sla ug hte r if h e re ck les sly c au se s th e d ea th o f an ind ivid ua l)
. 7 nature of the charge g iven by the trial court. There, “ the State’s theor y [rega rding manslaughter] relied upon transferred inte nt.” Id. at 957. Th us, the appellate court concluded that thejury had to be told about tha t issue v ia the charg e. Here, reference to mansl aughter in t he charge did not implicate transferred intent. Thatis, the jury was not told that it could find appellant guilty of sam e, if it concluded that his reckl e ss conduct w as directed at

one person but r

esulted in inj uring someone else. 4 Instead, the trial court instruc ted that appel lant could be found guilty of manslaughter if appellant

recklessly

discharg ed a firearm “i n the directi on of” the partic ular decedent and t he discharging of the weapon caused the de ath of the deced ent. In the tri al court’ s focusing upon ap pellan t’s allege d reckles s discha rge of the gun towards the decedent as opposed to some third p arty w hom appellant miss ed, there was no need to inform the jury thatappellant cou ld be held responsible for the crime even though he missed this unmentioned third party and struck the d ecedent. Simply put, the cir

cumstances described in the applicati on paragraph a t issue had nothing to do with transferred i ntent. So, Garrett was and is

inapposite. Issues Four, Five, and Six – Suffic iency of th e Evidence Appellant

next chall enges the l eg al and factual suf ficiency of the evidence supporting the verdi ct. He clai ms that the evi de nce was insufficient to demonst rate that he intentionally and knowing ly 1) s hot at Bustos, 2) tried to caus e the death of Bustos, and 3) caused the death of Moreno. W e overrule the contentions.5 W e would n ote, however, that in u rgi ng leg al i nsuffi ciency , t he appel lant should focus upon t he evi dence appearing of reco rd and expl ain why it was not eno ugh to sup portthe v erdi ct. This i s so because we cannot reverse unl ess we expl ain why that evi dence was defic ient. In t he int er est of T. M. , 33 S. W .3d 341, 349 (Tex. App. –Am ari ll o 2000, n o pet. ). It is no t enough for us t o merelyconclud e that the e vid ence was wanti ng. So, an ap pell ant shoul d do more than si mply al lude t o the ev idence that favor s an acq uittal. Rather, he s hou ld und ertak e to e xpla in wh y the ev iden ce p urpo rting to fa vor c onv iction d oes not. 8 Standard of Revi

ew The standards of review applicable to questions of legal and fact ual sufficiency are well-s ettled and need no explanation. We find it adequate to merely cite the parties to King
v. State , 29 S.W.3d 556 (Tex. Crim. A pp. 2000) and Clewis v. St ate , 922 S.W.2d 126 (Tex. Crim. App. 1996). 5 Application of Standard A person commits mur der if he intenti onally or knowing ly causesthe death of a n individual. T EX
. P EN
. C ODE
. A NN . §19.02(b)(1)(Vernon 1994 ). Furthermore, a person acts intentionally or knowi ngly w ith respect to a resultof his conduct when he is aware that his conduct is reasonabl y certai n to cause the r esult. T EX
. P EN
. C ODE
. A NN . §6.03(a) and (b) (defining culpable mental states of intentionally and knowing ly). Y et, as alluded to in our discussion of the preceding issue, one m ay stil l be held lia ble for murder if he kills
someone other than the per son he intended to k ill. See T EX
. P EN
. C ODE A NN
. §6.04(b)(2) (discussi ng this concept). In that regard, all the State need prove is that the only diff erence between what actual ly occurred and what he intended or kn ew woul d occur is that he caused the death of someone other than the one he tr ied to kill. Id. With this said, we now peruse the evidence bef ore us. Of record, we f ind e vi dence illust rating that : 1) appellant and Moreno were both present at the bar the ni ght of February 24, 1999; 2) each was there w ith a group of friends9

and/or family members; 3) Junior, one of appellant’s fr iends, was hit in the head with a billiard ball by Bustos, one of the indiv iduals in M oreno’s gr oup; 4) the fight in the pool hall spilled out into the parking lot, where a number of vehicles were damaged, 5) appe llant’s
car was damage d by Bustos; 6) appellant left the bar w ith Junior an d proceeded to appellant’s house; 7) appell antretrieved a shotgun and p istol from underneath his bed and gave th e shotgu n to Junior; 8) appellant and Jun ior then returned to the bar; 9) the appellant recal led seeing “ people around a bl ack car;” 10) appellant drove around to the backof the establishme nt; 11) at the time, the victim and Bu stos were in a black car along with four other people; 12) when the appellant drove up, people were attempting to enter the black car; 13) the appell ant and Junior ex ited their vehicle, aimed t heir weapon s at the blackcar, and began shooting; 14) aft er discharging the weapons, the two drove back to appellant’s house and hid the g uns; 15) that ni ght Moreno d ied of a bullet w ound t o t he head; 16) the bullet remov ed from his head was of the same cali ber as the ammuniti on fired f rom appellant’s

pistol; 17)

Bustos, w ho allegedly hit Junior with a bi lliard bal l, had been sitting in the passeng er seat of the car at the time of

the shooting; 18) as a res ult of the shooting, t he window where Bus tos had been sitt ing was shot out; 19) B ustos’ w indow
was the onlywindow

shot out; 20) t he black car did not have tinted wi ndows; 21) when the shooting began at least one door of the blac k car was open; 22) the i nterior li ght of the car had also been in w

orking co ndition that ni ght; 23) the parking l ot was well lit at the time of the shooting; 24)

Bustos saw

the shooters k neeling and ai ming at the car ; 25) when
a ppellant

discover

ed that someone had die d as a result of the shooting h e threw the weapons in T-Anchor Lake; and 26) appellant later confessed to shooti ng at the car in the parking lot

and throwi ng the weapons in the lake. Fr om this, a jur

y could co nclude, beyond10

reasonable doubt, that appell ant caused the death of Julian Moreno, although he i ntended to caus e the deat h ofAmbr ose L eon Bust os. T hat i s, a ra tion ale ju ry cou ld ha ve reasonably inferred that appellant i ntended to shoot and k ill Bustos in retaliat ion for the earlier happenings, s aw him in t he car, fired, a nd instead killed Moreno. Thus, appellant’s convicti on for murder issupported by legally sufficient evi dence. That the evidence of guilt was not free of contradi ction, that appel lant denie d intending to kill any

one, that he denied k nowing a nyone was in the black car, and that the credibili ty

of witnesses

may have b een subject to question does not require us to conclude thatthe verdict was factually insupportable. Those circumstan ces merelycreate iss ues for the jury to resolve. And, based upon our rev iew of the enti re record, we cannot say that th e verdictwas cle arly w rong or mani festly unjus t. Thus, the conv icti o n also enjoyed the support of factually

sufficient evi dence. Issue Seven – Admission o f the Au topsy Report Last ly, appellant

claims that t he trial cour t erred in admi tting an autopsy re port into evidence. It alleg edly did s o because the repor t was hear

say and t he Stat e failed to lay a proper predicate for i ts admission as a business record under Texas Rule ofEvidence 803(6). We overrule thepoint. Irrespe ctive of whether the S tate presented ev idence satisfy ing the elements for admitting a document as a busi ness record, the trial court had before i t an autopsy r eport. This is of signi ficance f or such a report has been held to be, as a matter of law, a public record. Butler

v. State , 872 S. W.2d 227, 237- 38 (Tex . Cri m. App. 1994), cert. denied, 513 U.S. 1 157, 130 L.Ed. 2d 10 79, 115 S.Ct. 1115 (199 5). And, as a public record, it i s admissible asan exceptio n to the hearsay rule. Id. at 238. So, because the s tandard of11

review is o ne of a bused discretion , Wyatt v. State , 23 S.W.3d 18, 29 (Tex. Cri m. App. 2000), and the report was admiss ible irr espective of Rule 803(6), we conclud e that the trial court did not err in admitting it. See Romer o v. State, 800 S.W.2d 539, 543 (Te x. C rim. App. 1990 ) (h oldi ng t hat a n app ell ate court may aff irm a trial c ourt’s decision to admit evidence for r

easons other than those mentioned to th e court). Accordingl y, we affirm the judgment of the trial cour t.

Brian Quinn Justice Publish.