Garrett v. State

¶1OPINION ON STATE’S MOTION FOR REHEARING

¶2We granted argument on the State’s motion for rehearing in order to address two grounds:

The majority opinion erred in reversing appellant’s murder conviction on the ground that there was legally insufficient evidence to support the same because:

(a) the law of transferred intent was effectively submitted to the jury;

(b) the law of transferred intent could be used to support the jury’s verdict; and

(c) a knowing killing of the deceased was not the only theory of murder submitted in the trial court’s charge to the jury.

Where a defendant is acquitted of a greater offense, either by verdict of a jury or by finding of an appellate court that the evidence is legally insufficient to sustain a conviction of that offense, nothing in the Double Jeopardy Clause of the Federal Constitution forbids a second trial of the defendant for a lesser included offense where there is no expressed or *802implied finding that the evidence is insufficient to support a conviction for the lesser included offense.

¶3We hold that the theory of transferred intent was not adequately before the jury and that our prior opinion, to the extent that it discussed double jeopardy, was advisory.

¶4I

¶5In its motion for rehearing, the State argues that this case is controlled by Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1978) and Garrett v. State, 642 S.W.2d 779 (Tex.Cr.App.1982) (Garrett I). In Romo, we rejected a challenge that an abstract instruction on the law of parties, without an application of that abstract law to the facts of the case, was fundamental error. Because an instruction on the law of parties allows the State to convict on less evidence than if a defendant is charged as a principal, we held that a defendant might choose not to pursue his right to an application of the law to the facts. By eschewing the parties application, the appellant in Romowould force the State to convict him on a theory of principal culpability. The State’s brief notes that, after reaching this result in Romo, supra, we later judged the sufficiency of the evidence in terms of “party” culpability. The State utilizes this result to infer that the jury was authorized to convict under the law of parties. The State particularly urges this argument by highlighting our reliance on Romoin Garrett I.

¶6While the State’s observation is well taken, it fails because it relies on the conclusion that the abstract charge on the law of transferred intent was sufficient to put that theory before the jury. Even a cursory reading of Garrett I, supra, belies this point:

A charge on transferred intent is by its nature favorable to the State and detrimental to the defendant. With the provisions of Sec. 6.04(b)(2) omitted from the charge, the prosecution is presented with the greater burden of proving a “knowing” act in which the defendant was aware that her conduct was reasonably certain to cause the actual result rather than merely the desired result. V.T.C.A. Penal Code, Sec. 6.03(b).

It would seem quite possible that a defendant might intentionally fail to object to a jury charge which omite a proper application of transferred intent in order to require the State to meet this greater burden.

¶7Garrett I, supra at 781.

¶8The inapplicability of the State’s argument with respect to Garrett I does not vitiate its weight in regard to Romo. In Romo, this Court refused to label an abstract instruction which would have increased the State’s burden of proof as fundamental error. We did so on the theory that a defendant could elect to waive his right to have the law of parties applied to the facts, thus forcing the State into meeting a more onerous burden of proof. When this Court examined the sufficiency of the evidence to support the defendant’s conviction in Romo, we measured the evidence in terms of the defendant’s culpability as a party. This treatment of the sufficiency point renders the “election” rationale a mere legal fiction. Garrett I does not adopt the implicit “test” for sufficiency used in Romo. It is patently unfair and irrational to find the charging error harmless because it raises the burden of proof and then ignore that raised burden when measuring the sufficiency of the evidence.

¶9A different concern raised by Garrett II, although it is not mentioned in the State’s motion for rehearing, is its possible effect on subsequent cases. A close inspection of Garrett II reveals that it is the product of an unusual set of circumstances, illustrating the tension between pre- and post-Ai-manza1 analysis, which have created a result that appears to be something it is not. At first blush, this case seems to require that a measurement of the sufficiency of the evidence be limited to a sole consideration of the application paragraph of the jury charge. This would be misapplication of the rule enunciated in Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1986); Ortega *803v. State, 668 S.W.2d 701 (Tex.Cr.App.1983); and Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1983). Boozer, Ortega, and Bensonhold that sufficiency of the evidence be measured against the jury charge, which we interpret to mean the entire charge.2

¶10II

¶11The Court of Appeals, after holding that the evidence was insufficient to support appellant’s conviction for the offense of murder, included the following statement in its opinion: “The State is not precluded from retrying appellant on a lesser included offense of murder.” Garrett v. State, 656 S.W.2d 97, 101-02 (Tex.App.— San Antonio 1983). In Garrett II, appellant argued that the Court of Appeals incorrectly authorized a trial on any lesser included offenses. We responded to that argument with an extensive discussion of the law concerning double jeopardy, concluding that Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) contains the proper standard for deciding whether a defendant may be tried for a particular lesser included offense following acquittal on the greater offense. However, we did not apply the Blockbur-ger test to the instant case because we found its application premature. Id. at 795. Upon reconsideration, we find that our discussion of double jeopardy law in response to appellant’s petition for discretionary review was unnecessary.

¶12The Texas Constitution vests judicial power over criminal cases in the Court of Criminal Appeals and the courts of appeals. Tex. Const, art. V, §§ 1 & 5. “‘Judicial power’ is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision.” Morrow v. Corbin, 122 Tex. 553, 558, 62 S.W.2d 641, 644 (1933). Judicial power does not include the power to issue advisory opinions. Id. at 562, 62 S.W.2d at 646; see also Firemen’s Ins. Co. of Newark, N.J. v. Burch, 442 S.W.2d 331, 333 (Tex.1968); United Services Life Insurance Company v. Delaney, 396 S.W.2d 855, 861 (Tex.1965).3 An advisory opinion results when a court attempts to decide an issue that does not arise from an actual controversy capable of final adjudication. See Fikes v. Ports, 373 S.W.2d 806 (Tex.Civ.App. — Fort Worth 1963, writ refused n.r.e.). Cf. Rice, 404 U.S. at 246, 92 S.Ct. at 404, 30 L.Ed.2d at 415 (“To be cognizable in a federal court, a suit ‘must be definite and concrete, touching the legal relations of parties having adverse legal interests.... It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” (citation omitted)).

¶13In the instant case, the Court of Appeals determined that the State could try appellant for any lesser included offenses of *804murder despite appellant s acquittal for the offense of murder. However, at that point the Court of Appeals did not know if the State would attempt to retry appellant for some lesser included offense. Moreover, without an information or indictment naming a particular offense, the Court of Appeals could not rule with any specificity or certainty. In sum, the Court of Appeals’ holding did not resolve an actual controversy capable of final adjudication. It anticipated a controversy and presumed hypothetical facts.

¶14It was not necessary for this Court to address the merits of the Court of Appeals’ holding regarding the future prosecution of appellant for lesser included offenses.4 The Court of Appeals had no power to decide that issue because the issue of double jeopardy could only arise if appellant were subsequently charged with some lesser included offense. See, e.g., Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982). Therefore, we find that the Court of Appeals’ holding was advisory. We express no opinion at this time as to whether appellant could be tried for some lesser included offense.

¶15The State’s motion for rehearing is denied.

¶16ONION, P.J., and DAVIS and McCORMICK, JJ., dissent.