               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS

                                             NO. PD-1054-07

                                  SHELDON ROBERTS, Appellant

                                                        v.

                                        THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SIXTH COURT OF APPEALS
                             DALLAS COUNTY

              J OHNSON, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, H OLCOMB and C OCHRAN, JJ., joined. P RICE, J., filed a concurring opinion
in which W OMACK, J., joined. K ELLER, P.J., filed a dissenting opinion. H ERVEY, J.,
filed a dissenting opinion in which K ELLER, P.J., and K EASLER, J., joined.

                                                OPINION

        Appellant was charged with capital murder by two separate indictments, one alleging the

death of a pregnant woman and her embryo and the other alleging the deaths of more than one

person. A jury convicted appellant of capital murder under both indictments. Because the state did

not seek the death penalty, appellant’s sentences were assessed at life imprisonment.1 Appellant

        1
          In a joint trial, appellant’s co-defendant, Brandon Okeith Shaw, was also convicted of capital murder and
sentenced to life imprisonment. Shaw v. State, No. 11-05-00265-CR and 11-05-00266-CR, 2007 Tex. App. LEXIS
3966 (Tex. App.–Eastland, delivered May 24, 2007, no pet. filed)(not designated for publication). Another co-
defendant, Emmanuel Dornail Rogers, was tried separately and was also convicted of these murders and sentenced to
                                                                                                                 2

appealed both convictions, and the court of appeals affirmed each with a separate opinion. Appellant

sought discretionary review of both decisions of the court of appeals, but we granted review of only

the appeal of the conviction for killing a pregnant woman and her embryo. We reform the judgment

to reflect a conviction for the murder of Virginia Ramirez and remand to the trial court for

sentencing on that charge.

                                                     FACTS

        Around midnight on December 19, 2003, multiple assailants invaded a Dallas apartment,

firing numerous rounds of gunfire inside and killing three of the occupants of the apartment: Heath

Laury, a resident, Jennifer Thompson, a visitor and Laury’s girlfriend, in the south bedroom and, in

the north bedroom, Virginia Ramirez, a resident who was in the early stages of pregnancy. When

the shooting had ended, Ramirez’s two-year-old daughter was also in the north bedroom. Royale

Bolden, a resident of the apartment and the father of the two-year-old, testified that he and a visitor,

Corey Smith, hid in the closet in the north bedroom and escaped harm. Another visitor escaped by

jumping out of the window in the south bedroom.

        Ms. Ramirez’s mother, Elsa Moncayo, testified that her daughter had lived in the apartment

with her two children from March of 2003 until her death in December of that year.2 Emmanuel

Rogers, a co-defendant, gave a written statement in which he indicated that the attackers knew the

residents of the apartment, and he described a confrontation earlier in the evening at the apartment




life imprisonment. Rogers v. State, No. 05-05-00283-CR and No. 05-05-00284-CR, 2006 Tex. App. LEXIS 1609
(Tex. App.–Dallas, delivered March 1, 2006, no pet. filed)(not designated for publication).

        2
           Ms. Ramirez’s two-year-old daughter was present at the time of the attack. Her seven-year-old son was
spending the night with his grandmother, Ms. Moncayo. At the time of the trial, Ms. Ramirez’s children were living
with Ms. Moncayo.
                                                                                                                 3

“where the Mexican girl and Heat3 stayed,” during which “the Mexican girl tried to fight” Brandon

Shaw, a co-defendant in the murders.4 Detective James Vineyard testified that examination of the

north bedroom door showed 4 holes made by bullets, each entering the door at different angles.5

Detective Vineyard stated that the differing angles of impact indicated that either the door was being

closed when the shots were fired or that the door was stationary and the shooter was moving. He

also stated, “The position of the body and transferred blood [on the wall behind the door] and in

relationship to the door would indicate that she was obviously behind the door. Indication is that she

probably was trying to close the door and was turning toward the wall or the inside of the bedroom

as she was shot.”

        The indictment alleged that appellant had intentionally and knowingly caused the death of

Ms. Ramirez by shooting her with a firearm, a deadly weapon, and during the same criminal

transaction had intentionally and knowingly caused the death of “another individual, to-wit: an

unborn child of Virginia Ramirez by shooting Virginia Ramirez while said unborn child was in

gestation of said Virginia Ramirez.” The jury found appellant guilty of capital murder as alleged in

the indictment.

        On appeal, appellant raised several points of error including claims that: 1) the evidence was

legally and factually insufficient to sustain the conviction; and 2) the trial court erred by submitting



        3
           Heath Laury was known as “Heat,” or “Lil Heat.” Testimony from a survivor revealed that Shaw’s
brother, “Fifty,” had been shot and Shaw believed that “Heat” was involved in the shooting.

        4
           Royale Bolden testified that Shaw and others had barged into the apartment around sundown and had
confronted Heat about what he knew about Fifty’s shooting. Heat denied knowledge, and M s. Ramirez had
screamed at Shaw and the others to get out of her house.

        5
           A fifth hole was made by a shotgun. No trajectory could be established from that hole. All of Ramirez’s
injuries were caused by .40 or .45 caliber bullets.
                                                                                                    4

an erroneous jury charge that failed to require a culpable mental state for the death of the unborn

child, thereby causing egregious harm. The court of appeals overruled both issues and affirmed the

trial court’s judgment. Roberts v. State, No. 06-05-00165-CR, 2007 Tex. App. LEXIS 4605 (Tex.

App.– Texarkana, delivered June 14, 2007)(not designated for publication).

       We granted two of appellant’s grounds for review, which assert that the court of appeals erred

       (1) by holding that the evidence was both legally and factually sufficient to support
       the jury’s verdict;
       (2) in holding that the charge did not contain a material variance or lack a required
       culpable mental state.

       In his brief, appellant “rephrases the issues” and questions the sufficiency of the evidence to

establish his participation in a capital murder when the state relied upon testimony from two

witnesses who were his accomplices in another murder and whose testimony did little more than

place him at the scene of the shooting and establish his friendship with one of the shooters. He

asserts that, because the evidence merely established his presence at the location of the offense and

his friendship with one of the shooters, the evidence was insufficient to support the conviction.

       Appellant also questions whether proof that he killed a pregnant woman and her embryo in

the same transaction established capital murder when he was unaware of the pregnancy. He notes

that the state’s medical expert testified that it was impossible for someone to look at Ms. Ramirez’s

outward appearance at the time of her death and be able to tell that she was pregnant. He argues that,

because it was impossible for him to know that she was pregnant, he lacked the specific intent to kill

her embryo, which is an element of capital murder as alleged in the indictment.

                              SUFFICIENCY OF THE EVIDENCE

       The state asserts that this court lacks jurisdiction to review appellant’s complaint that the
                                                                                                      5

evidence does not sufficiently corroborate the testimony of the two witnesses because that claim was

never raised in the court of appeals. Alternatively, it argues that the corroboration requirement for

accomplice-witness testimony does not apply because these two witnesses were not accomplices in

the case being tried, but rather were accomplices in an unrelated murder case.

        The court of appeals observed in its opinion that there was a portion of appellant’s brief on

direct appeal that could be read as raising the issue that accomplice testimony must be corroborated

by non-accomplice testimony. Roberts v. State, supra at * 23-24, n.9. It concluded, however, that

if appellant intended to raise such issue, he had failed to provide any substantive analysis of

corroboration issues and that, because his brief contained no analysis of the sufficiency of the state’s

evidence to corroborate accomplice-witness testimony, “any such issues would have been

inadequately briefed and would be properly overruled.” Id.

        Appellant did not raise, nor did we grant review of, a ground complaining about the

testimony of the two named witnesses (Nero and Jackson) who had been co-defendants with

appellant in regard to a different murder. We observe that appellant’s brief on direct appeal includes

a discussion of the testimony of these two witnesses, Nero and Jackson, as simply providing

evidence of appellant’s mere presence at the scene of the crime, which was not enough to prove guilt.

But it made no mention of any challenge to the testimony provided by those two witnesses because

of any insufficiency of evidence to corroborate their testimony, nor did it make any argument that

corroboration was required. We agree with the court of appeals that, if appellant had been

attempting to raise such a complaint about uncorroborated accomplice-witness testimony, it was

inadequately briefed and could properly be overruled. Because appellant did not present to the court

of appeals his claims about the accomplice-witness rule’s applicability to the testimony of these two
                                                                                                      6

witnesses and the court of appeals consequently did not rule on that issue, we decline to address that

component of appellant’s first ground for review. “This Court reviews only ‘decisions’ of the courts

of appeals; we do not reach the merits of any party’s contention when it has not been addressed by

the lower appellate court.” Sotelo v. State, 913 S.W.2d 507, 509 (1995).

       Appellant also argues that, considering all of the evidence (including the testimony of Nero

and Jackson), in the requisite light of “most favorable to the verdict,” the evidence is legally

insufficient to support the conviction. He asserts that the bullets, even if attributed to him, were not

connected to any of the weapons actually used in the offense. He adds that his mere possession of

a rifle which was the same type as a rifle used in the offense is not evidence that he was involved in

the offense. He also notes that, according to Nero and Jackson, he had denied participating in the

shooting and claimed not to have even entered the apartment in which the shooting had taken place.

       “In assessing the legal sufficiency of the evidence to support a criminal conviction, we

consider all the evidence in the light most favorable to the verdict and determine whether, based on

that evidence and reasonable inferences therefrom, a rational juror could have found the essential

elements of the crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (2007), citing

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In addressing a claim of factual insufficiency of

the evidence, we review all of the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524

(Tex. Crim. App.), cert. denied, 128 S.Ct. 282 (2007); Garza v. State, 213 S.W.3d 338, 344 (Tex.

Crim. App. 2007).

       The court of appeals considered the testimony of thirteen witnesses. Roberts, supra at ** 12-

23. It determined that there was evidence to show, at a minimum, that appellant was with the men

who did the shooting, that he helped the shooters break into the apartment, and that he helped
                                                                                                     7

conceal and destroy evidence after the fact. Id. at * 23. It concluded that there was enough direct

and circumstantial evidence so that the jury could, at a minimum, link appellant to the commission

of these murders as a party. Id.

       After reviewing the record, we hold that the court of appeals did not err in overruling

appellant’s general challenges to the legal and factual sufficiency of the evidence. Accordingly, we

overrule ground one.

                                   CULPABLE MENTAL STATE

       Ground two challenges the court of appeals’ holding regarding appellant’s claim that the jury

charge contained a material variance or lacked a required culpable mental state. As noted above,

upon briefing appellant “rephrases the issues.” “Issue Number Two” of appellant’s brief now states,

“Whether proof that Appellant killed a pregnant woman and her embryo in the same transaction

established capital murder when Appellant was unaware of the pregnancy.” Appellant points out

that the indictment charged him with killing a pregnant woman with specific intent to kill her embryo

in the same transaction. He argues that “[b]ecause specific intent is required to kill the embryo,

above and beyond intent to kill the embryo’s mother, the ‘doctrine of transferred intent’ cannot be

used to re-assign a defendant’s intent to kill an embryo’s mother to her embryo.”

       Alternatively, appellant argues that the court of appeals erred when it failed to find egregious

harm from the lack of an instruction in the jury charge that required the jury to find that he

specifically intended to kill the embryo. He asserts that “[t]he error is egregious because the charge

omitted the capital element; there is no suggestion in the definitional portions of the jury charge or
                                                                                                                8

application paragraph that the State must prove Appellant’s specific intent to kill [the] embryo.”6

            The court of appeals acknowledged, and appellant and the state agree, that there is no

evidence in the record that appellant or anyone else knew that Ms. Ramirez was pregnant at the time

of her death. Roberts, supra at * 26. The evidence showed that Ms. Ramirez was in the early stages

of pregnancy. The state’s medical expert explained that the pregnancy would have been impossible

to perceive from mere observation of Ms. Ramirez; “You couldn’t tell just by looking at her . . . that

she was pregnant.”7 The state asserts that the evidence is legally sufficient to show that appellant

possessed intent or knowledge with respect to the embryo because, at the time she was shot, the

mother cried out, “Not my baby, not my baby,” through the closed door. The state also argues that

the trial court properly charged the jury on the doctrine of transferred intent, and that applying that

doctrine to the unintended victim in a multiple murder gives proper effect to the legislature’s intent

to increase the offense to capital murder when two or more victims are killed.

        We observe that appellant’s brief in the court of appeals included claims that the evidence

was legally and factually insufficient to sustain the conviction because of a material variance

between the indictment and the proof, and that the trial court erred by submitting an erroneous jury

charge that failed to require a culpable mental state for the death of an unborn child, thereby causing


        6
            The application paragraph states as follows:

        Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a
        reasonable doubt, that on or about December 19, 2003, in Dallas County, Texas, the defendant,
        acting alone or as a party as defined herein, intentionally or knowingly caused the death of Virginia
        Ramirez, an individual, by shooting Virginia Ramirez with a firearm, a deadly weapon, and during
        the same criminal transaction, while desiring or contemplating the death of Virginia Ramirez, did
        cause the death of Virginia Ramirez’s unborn child, an individual, while said unborn child was in
        gestation of said Virginia Ramirez, you will find the defendant guilty of the offense of capital
        murder and so say by your verdict.

        7
           At the time of her death, Ms. Ramirez was 5'3" tall and weighed 229 pounds. The medical examiner
estimated that she was 8-9 weeks pregnant.
                                                                                                     9

egregious harm to appellant. The jury charge included, without objection, language from TEX .

PENAL CODE § 6.04(b)(2) stating that “[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 a different person was injured, harmed, or otherwise affected.”

        Appellant correctly asserts that the killing of the second person must be “intentional or

knowing.” The statutory definitions of intentional or knowing culpability with respect to the result

of conduct, as correctly reflected in the jury charge, require the defendant to have the conscious

objective or desire to cause the result, or to be aware that his conduct is reasonably certain to cause

the result.

        In Lawrence v. State, 240 S.W.3d 912, 914-15 (Tex. Crim. App. 2007), cert. denied, 128

S.Ct. 2056 (2008), the defendant was accused of killing an embryo by fatally shooting the embryo’s

mother, a woman he had been dating. The defendant was two-timing the mother, and upon learning

that the mother was pregnant by him, he told the second girlfriend that he would “take care of” the

problem, i.e., the pregnancy. The evidence reflected that the defendant killed the mother with the

knowledge that she was pregnant and with the specific intent to kill the embryo. We held, based

upon the relevant Penal Code statutes, that a person who “intentionally or knowingly” causes the

death of a woman and “intentionally or knowingly” causes the death of her unborn child, at any stage

of gestation, commits capital murder, and that the plain language of the statutes prohibits the

“intentional or knowing” killing of any unborn human, regardless of age. Id. at 915.

        The state argues that, when measured against a hypothetically correct jury charge, the

evidence is legally sufficient to prove appellant’s intent or knowledge with respect to the unborn

child. It specifically argues that testimony that the pregnant victim exclaimed, “Not my baby, not
                                                                                                    10

my baby,” while seeking shelter behind a closed door, provided sufficient evidence by which a

reasonable juror could conclude that the shooters knew they were shooting at a pregnant woman and

her unborn baby on the other side of the door.

       “Murder is a ‘result of conduct’ offense, which requires that the culpable mental state relate

to the result of the conduct, i.e., the causing of the death.” Schroeder v. State, 123 S.W.3d 398, 400

(Tex. Crim. App. 2003), citing Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). In this

case, a witness testified that, while he was in a closet hiding from the assailants, he heard Ms.

Ramirez scream, “Not my baby. Not my baby,” right before she was shot through the bedroom door.

But his testimony also established that Ms. Ramirez’s two-year-old daughter was with her at the time

she was shot. Coming out of the closet after the shooting ended, the witness found Ms. Ramirez

with the two-year-old “[o]n her stomach, on her chest”; thus, it is reasonable to infer that the “my

baby” to whom the pregnant victim was referring during the shooting was the two-year-old rather

than the embryo.

       In the instant indictment, appellant was charged with capital murder by causing the death of

two individuals, Ms. Ramirez and her unborn child while in gestation, during the same criminal

transaction. Capital murder is a result-of-conduct oriented offense; the crime is defined in terms of

one’s objective to produce, or a substantial certainty of producing, a specified result, i.e. the death

of the named decedent. Kinnamon v. State, 791 S.W.2d 84, 88-89 (1990), overruled on other

grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). Due process requires the

prosecution to prove beyond a reasonable doubt every fact necessary to constitute the offense

alleged. In re Winship, 397 U.S. 358, 364 (1970). In this case, the state alleged that appellant

intentionally and knowingly caused the death of Ms. Ramirez’s unborn child; thus the state was
                                                                                                      11

required to prove beyond a reasonable doubt that appellant possessed that culpable mental state with

respect to the death of the unborn child, regardless of any intent to kill Ms. Ramirez.

        The state argues that transferred intent applies as to the death of the embryo under the

precedent of Norris v. State, 902 S.W.2d 428 (Tex. Crim. App. 1995). Norris broke into his

girlfriend’s bedroom through the window and killed her and her two-year-old son (the baby) with

multiple shots from a rifle. The baby suffered five gunshot wounds and died instantly. The mother

suffered three gunshot wounds and numerous wounds from fragments of bullets that first hit the

baby; she died later that night in a hospital. The medical examiner testified, in response to the state’s

hypothetical, that their wounds were consistent with a bullet fired through the bedroom window that

wounded the baby’s leg, then fragmented and wounded the mother; thereafter, the mother picked up

the wounded baby and held it to her chest, and additional bullets injured one or both of the victims.

        The testimony supported the state’s theory that Norris shot and wounded the baby from

outside, climbed through the broken window, fired again and struck the baby in the forehead, with

fragments injuring the mother’s face and neck, left the bedroom for a period of time, then returned,

fired additional bullets into the victims, then left the apartment in full view of the mother’s older

sons. The issue of transferred intent was raised only by Norris’s own testimony, in which he asserted

that he intended to kill only the mother.

        The jury charge permitted the jury to find Norris guilty of capital murder “if it found

appellant intentionally caused the death of the mother by shooting her with a firearm and during the

same criminal transaction either intentionally caused the death of the baby by shooting him with a

firearm, or intended to cause the death of the mother by shooting her with a firearm, and caused the

death of the baby by shooting him with a firearm and the only difference between what actually
                                                                                                     12

occurred and what he desired, contemplated, or risked is that a different person or property was

injured.” Norris, 902 S.W.2d at 436 (italics in original).

       On appeal, Norris asserted that the evidence was insufficient to prove that he specifically

intended to cause the death of the baby. The Court found that the jury could have rationally found

specific intent; the baby “was in full view of appellant, and appellant admitted seeing him.” Id.

       Norris also asserted that a portion of the jury instruction (in italics above) permitted the jury

to convict him under the impermissible application of transferred intent, as set out in TEX . PENAL

CODE § 6.04(b)(2). The state argued that “there was no danger the jury convicted appellant of capital

murder based on the transferred intent instruction because the jury found at the punishment phase

in special issue one that ‘appellant deliberately caused the death’ of the baby.” The jury instruction

on the first special issue asked whether Norris caused the death of the baby deliberately and with the

reasonable expectation that the death of the baby or another would result. Id. at 437.

       The Norris Court acknowledged that capital murder pursuant TEX . PENAL CODE §

19.03(a)(6)(A) requires two or more intentional or knowing murders. Its analysis of the application

of § 6.04(b)(2) to § 19.03(a)(6)(A) is one short paragraph.

               The plain language of Section 6.04(b)(2) evinces a legislative policy to make
       a defendant, who, like appellant, acts with the specific intent to kill, criminally
       responsible for the consequences of his voluntary acts. And, this Court has held
       Section 6.04(b)(2) can be applied to establish a Section 19.02(a)(1) murder. See
       Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1982)(op. on reh’g).
       Therefore, since Section 19.03(a)(6)(A)8 incorporates two or more Section 19.02
       (a)(1) murders and Section 6.04(b)(2) can be used to establish a Section 19.02(a)(1)9
       murder, and in light of the legislative policy underlying Section 6.04(b)(2) and the
       statutory first special issue, we hold Section 6.04(a)(2) applies to a Section


       8
           Now § 19.03(a)(7)(A).

       9
           Now § 19.02(b)(1).
                                                                                                          13

         19.03(a)(6)(A) capital murder prosecution.

Id. at 437-38.

         This conclusion is at odds with the Norris Court’s recognition that, for capital murder

pursuant to Section 19.03(a)(6)(A), each death must be intentional or knowing–there must be a

discrete “specific intent to kill” as to each death. A classic example of proper application of

transferred intent is the act of firing at an intended victim while that person is in a group of other

persons. If the intended person is killed, the offense is murder. If a different person in the group is

killed, the offense is murder pursuant to TEX . PENAL CODE § 6.04(b)(2): “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: a different person or property was injured, harmed,

or otherwise affected.” (Emphasis added.) In either case, there was one intent to kill and one

resulting death.

         If both persons are killed, we cannot use transferred intent to charge capital murder based on

the death of the unintended victim, as that would require using a single intent to kill to support the

requirement of two intentional and knowing deaths. Further, while § 6.04 permits the use of

transferred intent if a different person in harmed;10 such use is not authorized if the intended victim

is also killed, as that would permit one intent to kill to support more than one death.11 This is the

         10
             Had Ms. Ramirez’s two-year-old daughter died during the course of this attack instead of her mother,
appellant would have been criminally responsible for her death pursuant to the application of the doctrine of
transferred intent through § 19.02(b)(2, 3). He would also be vulnerable to a separate charge of capital murder for
causing the death of a child under the age of six years. T EX . P EN AL C O D E § 19.03(a)(8).


         11
              The second death could be charged as murder pursuant to §19.02(b)(2) (intends to cause serious bodily
injury and commits an act clearly dangerous to human life) or §19.02(b)(3) (commits or attempts to commit a felony,
other than manslaughter, and in the course of . . . the commission or attempt, commits an act clearly dangerous to
human life), but not as murder pursuant to § 19.02(b)(1), because that section requires a separate and specific intent
to kill. It therefore cannot be used support capital murder, which requires a intentional and knowing murder for each
                                                                                                                  14

fallacy of Norris; it permits the intent to cause one intentional or knowing death to support two

deaths, one intentional and knowing, the other unintentional. We overrule Norris to the extent that

it allows such use. Transferred intent may be used as to a second death to support a charge of capital

murder that alleges the deaths of more than one individual during the same criminal transaction only

if there is proof of intent to kill the same number of persons who actually died, e.g., with intent to

kill both Joe and Bob, the defendant killed Joe and Lou. It may also be used if, intending to kill both

Joe and Bob and being a bad shot, the defendant killed Mary and Jane. This resolution comports

with Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1982), but does not violate the plain

language of § 6.04(b)(2) or § 19.03(a)(7).

          But that is not the case here. Appellant intended to kill A, and did so. If he is to be charged

with also intentionally and knowingly killing a second person, in this case the embryo, by killing the

mother, there must be a separate specific intent to do so. See Lawrence, supra (shot pregnant

girlfriend with specific intent to kill the embryo). It is undisputed that appellant did not know that

Ms. Ramirez was pregnant. Lacking knowledge of the embryo’s existence, appellant could not form

a separate specific intent to kill the embryo, as is required by statute.12

          Nor can we say that intent to kill the two-year-old, even if such an intent had been proved,

could transfer to the embryo under these facts.13 Transferred intent in this context is based on the




victim.

          12
             Appellant was, however, vulnerable to a charge of murder for his intent to kill Ms. Ramirez and a charge
of capital murder for the death of Ms. Ramirez in the course of the murders of the other occupants of the apartment
or of the burglary of the apartment.

          13
            Based on the evidence, the attackers knew the residents of the apartment and would have been aware that
two children lived there. The two-year-old was in the bedroom with her mother and was unharmed, even though she
was a known, easy, and available target.
                                                                                                                   15

principle that an act intended to kill one person instead killed another. If, with intent to kill the two-

year-old, appellant had fired a bullet that entered Ms. Ramirez’s uterus and killed the embryo,

transferred intent may lie. But that is not the case here. The embryo was not viable outside of a

living uterus and died because its mother died. No act of appellant toward the two-year-old resulted

in the death of the embryo.

         We cannot conclude that there was sufficient evidence of the constitutionally required proof

beyond a reasonable doubt that appellant intentionally and knowingly caused the death of Ms.

Ramirez’s unborn child. We sustain appellant’s ground two.

         We reverse the judgment of the court of appeals and reform the judgment to reflect a

conviction for the murder of Virginia Ramirez and remand to the trial court for assessment of

punishment for that murder conviction.14



Delivered: December 17, 2008
Publish




         14
            W e did not grant review of appellant’s conviction and life sentence for capital murder in the companion
case, and that judgment remains undisturbed. See footnote 1, supra.
