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604(b)(1) TPC

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August 16, 2002, 08:03
BLeonard
604(b)(1) TPC
In transfer of intent from offense to offense, e.g. injury to a child-sbi to murder, is the State entitled to only an abstract charge under 6.04(b)(1) TPC or may we also have an application paragragh in the jury charge? We have already alleged capital (under six) and "felony murder" under 19.02(a)(3).
August 16, 2002, 08:45
LisaS
I think you must give an application paragraph on it if you give the abstract instruction. See Garrett v. State, 749 S.W.2d 784 (TEx. Crim. App. 1986). By the way, there's a good sample application paragraph in McCormick's Texas Practice section 100.09.
August 16, 2002, 10:05
KAS
See Williams v. State, 782 S.W.2d 251 (Tex. App.--Houston [14th Dist.] 1989, pet. ref'd) (Where the State did not object to instruction on transferred intent appearing in abstract section of trial court's charge to jury in murder case, but not appearing in applications section, prosecution was required to prove that defendant actually intended to harm victim, rather than simply establishing that defendant intended to harm another person and accidentally killed victim.)
August 20, 2002, 16:06
BLeonard
How might such a paragraph read?

Now if you find from the evidence beyond a reasonable doubt that in the County of Tarrant and State of Texas, on or about the 13th day of July 2001, the defendant intentionally, knowingly or recklessly caused serious bodily injury to A by striking her with his hand and A was a child fourteen years of age or younger and that the only difference between what actually occurred and what the defendant desired, contemplated, or risked is that the defendant caused the death of A, then you will find the defendant guilty of murder?
This seems to leapfrog manslaughter, although reckless injury to a child - SBI is NOT a "natural" lesser of manslaughter. CCA caselaw tells us emphatically that Garrett is limited to its facts and that intentional or knowing injury to a child of any variety is not a lesser of murder. If 19.02(a)(3) TPC "felony murder" is "just another way of alleging murder" and 6.04(b)(1)TPC is a stand alone statute worthy of a seperate application paragragh, how do these ratioally relate to one another? Could one allege yet a FOURTH theory of murder ouside of Section 19? If not, what does 6.04(b)(1) TPC really mean?