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Click here for the full text of this decision FACTS:Joshua Thompson was an associate pastor at a Baptist church. His twin brother Caleb Thompson was also active in the church. The victim was an 11-year-old boy who attended a children’s Bible-study program at the church. On July 3, 2002, the victim’s Bible-study teacher reported to Thompson that the child was misbehaving. Thompson drove the child to Caleb’s nearby residence. At some point, Caleb joined them. Thompson beat the child with a tree branch. He struck the victim more than 100 times during a period estimated by the child at one-and-a-half hours. During at least part of that time, Caleb helped hold the child down. As a result of the beating, the victim’s back was one huge bruise from his neck to his buttocks. A paramedic testified that it was the worst bruising he had ever seen. The victim’s blood pressure was low, his heart rate was fast and he appeared to be undergoing hypovolemic shock, which is an indication that he was losing blood. A doctor testified that the bruising was severe and palpable, indicative of deep tissue bruising, and that the victim’s urine was “Coca-Cola colored,” indicating collection in the kidneys of a substance called myoglobin, which is released into the blood as a result of the death of muscle cells. The doctor further testified that, as a result of this condition, the child would have died from renal failure if he had not received prompt medical attention. Authorities charged Thompson with the first-degree felony of injury to a child and the second-degree felony of aggravated assault. Thompson’s jury charge contained instructions that tracked the language of the charged offenses, along with allegations necessary to support a deadly weapon finding. The charge also contained two sets of instructions, to which Thompson objected, that applied the doctrine of “transferred intent” found in Texas Penal Code �6.04(b)(1). First, the charge contained an abstract instruction tracking the language of that provision. Second, with respect to the injury to a child offense, the charge contained an application paragraph that permitted the jury to find Thompson guilty of the first-degree felony if he merely intended to cause bodily injury, so long as he actually caused serious bodily injury. The jury convicted Thompson of both offenses and sentenced to him to confinement for 26 years for the offense of injury to a child and for 20 years for the offense of aggravated assault. On appeal, Thompson contended that the jury charge improperly allowed the jury to elevate the third-degree offense of injury to a child (intentionally or knowingly causing bodily injury) to the first-degree offense of injury to a child (intentionally or knowingly causing serious bodily injury). The state agreed that the “transferred intent” instructions should not have been given but argued that the error was harmless. The 3rd Court of Appeals, relying on the CCA’s 1979 opinion relying primarily upon Honea v. State, held that no error occurred. After addressing the arguments of both parties, the 3rd Court held that “appellant’s intent to cause bodily injury to L.G.”transferred’ to the serious bodily injury that actually resulted from appellant’s conduct.” HOLDING:Affirmed. In Honea, the CCA construed �6.04(b)(1). The defendant in that case bound and gagged the victim in a barn and stole $1,200 from his shirt pocket. As a result of lying bound and gagged on the barn floor, the victim inhaled dust, which caused him to cough, vomit and eventually suffocate. The defendant in Honea contended that there was a fatal variance between the allegations in the aggravated robbery indictment and the proof at trial, because he did not intentionally and knowingly cause serious bodily injury. Relying upon �6.04, the CCA held that, because the defendant clearly intended to rob the victim and his acts resulted in the offense of aggravated robbery, his intent to rob transferred to the aggravated robbery. In other words, the CCA in Honea held that the transferred intent statute could be used to transfer a defendant’s culpable mental state from a lesser offense to one that carries a greater penalty. But Thompson argued that Honea was wrongly decided. Section 6.04(b)(1), the CCA stated, states 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 offense was committed.” Given the plain language and the history of the provisions at issue, the CCA concluded that �6.04(b)(1) authorizes the transfer of a culpable mental state between offenses contained in the same statute and also between greater and lesser included offenses. That authorization may be overridden by language defining a particular offense, as in the offense of capital murder, the CCA stated, but no such impediment arises with respect to the injury-to-a-child offense. Where �6.04(b)(1) permits the transfer of a culpable mental state, mistake of fact may be raised as a defense, the court noted. The mistake, the CCA stated, must be reasonable for it to constitute a circumstance that exculpates the defendant of the offense charged, and the defendant would still be guilty of any lesser included offense that would be applicable if the facts were as the defendant believed. Thus, the CCA overruled Honea to the limited extent that it held that a defendant is not entitled to a mistake-of-fact instruction. OPINION:Keller, P.J., delivered the opinion of the court in which Meyers, Keasler, Hervey, Holcomb and Cochran, JJ., joined. CONCURRENCES:Womack, J., filed a concurring opinion which joined in part. “I join the judgment of the Court and all but Part II. C. of its opinion, which follows a decision on error preservation in Posey v. State, 906 S.W.2d 57, 62 (Tex. Cr. App. 1998), that I continue to believe was incorrect.” Price and Johnson, JJ., concurred without a written opinion.

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