In Thompson v. State, recently handed down by the CCA, the Court holds that transferred intent may serve to convict a person of a greater offense than that intended, i.e., the defendant is guilty of 1st degree injury to a child even though he only intended to inflict bodily injury, if he actually causes serious bodily injury instead.

So if the person intends to commit one offense, and instead commits another offense which requires no greater culpable mental state, then transferred intent will enable conviction for the greater offense. The Court notes, "That authorization may be overridden by language defining a particular offense, as in the offense of capital murder," where "By contrast, the offense of capital murder contains what appears to be a sort of anti-transfer element: the offense specifically requires that a murder be committed 'as defined under Section 19.02(b)(1),' the provision proscribing intentional and knowing murders."

Here's the question: What if the defendants in Thompson had killed a boy under 6, when they intended to only cause bodily injury? The only difference between the offense of injury to a child and capital murder is that death is the intentional or knowing result instead of bodily injury. In fact, since death is included in the definition of serious bodily injury, once could argue that there is little distinction between my hypothetical case and Thompson's.

So, assuming any mistake of fact on the part of the defendant as to the degree of harm he was inflicting is unreasonable, does Thompson allow a prosecution for capital murder in cases where the proof shows an intent to cause bodily injury that unintentionally results in death?

[This message was edited by Wes on 07-03-07 at .]

I think that would be your problem if you charge him with capital murder. To actually "murder" someone, speaking in non-legal terms, the person committing the "murder" should have had some intent. That is what I have also seen from the defense perspective of the felony DWI murder cases (we had our first trial on one in March, Elden Carter, which is now on appeal). Secondly, you'd have a tough time convincing a jury to convict someone of capital murder if they "unintentionally caused the death."

This is from the TDCAA commentaries to the recent Lawrence opinion, holding that prosecution for capital murder for the killing of a preganant woman and her fetus is constitutional.
"Unfortunately, the CCA did not have the facts present to reach the more interesting question as to whether a person must know the fetus exists to be held criminally liable. That didn't stop Judge Johnson, though, from giving a one-judge advisory opinion, suggesting that lack of knowledge would make the prosecution unconstitutional. Perhaps she hasn't heard of the doctrine of transferred intent. And perhaps that's why judges shouldn't provide advisory opinions."

The issue raised by the commentary is similar to my issue above, I think. The Johnson hypothetical assumes that the person intends to commit murder, but instead commits capital murder by unintentionally killing multiple victims. Assuming the woman was not visibly pregnant, does transferred intent get us to capital murder, or does the capital murder statute make transferred intent inapplicable by requiring specific intent to commit the murder of the fetus as well?

Personally, I'm with the commentator, I think we should be allowed to charge cap in both cases, since nothing in the statutes say transferred intent should not apply. Any thoughts?