THOMAS RAY WEST,FROM A DISTRICT COURT APPELLANT v. OF THE STATE OF TEXAS, APPELLEE

    
COURT OF APPEALS
    
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00374-CR
 
THOMAS RAY WEST,FROM A DISTRICT COURT
 
        APPELLANT
 
v. OF
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES McCLUNG, BAKER AND KINKEADE
OPINION BY JUSTICE McCLUNG
JUNE 27, 1989
        Thomas Ray West appeals his conviction for attempted capital murder. Punishment was assessed by the jury at 99 years and a fine of $10,000. We affirm the trial court's judgment.
        Kelly O'Brien and Mark Riedel were stabbed by West in O'Brien's apartment early in the morning on November 7, 1987. Riedel was visiting O'Brien earlier that evening and decided to spend the night.
        At about 2:45 a.m. West knocked on the apartment door. O'Brien and Riedel ignored the knock. Then the bedroom light flashed on and they saw West standing at the bedroom door brandishing a knife. Although West was a stranger, he insisted that O'Brien knew him and that he wanted some marijuana; West also asked for someone named "Steve" and "his old lady". O'Brien, Riedel and West went into the living room where O'Brien tried to convince West that they did not know what or who he was talking about and tried to get him to leave the apartment. Being unsuccessful, O'Brien threatened to call the police.
        Riedel had been standing near West, trying to get him to leave, and West was near the front door. Suddenly West told Riedel that, "You need to back up. You need to get away from me. You don't know what you are getting yourself into." West then became violent, pushing Riedel away, then stabbing him in the abdomen. Riedel collapsed on the sofa. West then made Riedel go to the bathroom and get into the bathtub. West then attacked O'Brien, dragging her by her hair back into the living room where he then stabbed her first through the arm and then in the heart, whereupon she lost consciousness. Riedel, hearing the struggle in the next room, got out of the tub, and stumbled into the living room. West was gone. Seeing immediately that O'Brien was seriously injured, Riedel wrapped her in a blanket and, in an effort to stop the bleeding, applied pressure to her chest wound. He then made his way to a nearby convenience store to get help. A store employee called the police and ambulance. Miraculously, both O'Brien and Riedel survived.
        West first contends that Riedel's in-court identification of him was irreversibly tainted. This point is without merit. Prior to permitting the in-court identification of West, the trial court conducted a hearing to determine the admissibility of this evidence. This hearing revealed that after the victims had been removed to hospitals, investigators found a wallet lying on the floor of O'Brien's apartment. This wallet contained a Department of Public Safety identification card bearing a photograph. Investigator John Gaines, fearful that the victims would not survive, immediately went to the hospital where Mark Riedel was about to undergo surgery. Riedel identified the photo as that of the man who had stabbed him. Riedel had been told that the identification card bearing the photo had been left in the apartment. Two days later, Riedel picked West out of a photographic lineup containing six pictures. Riedel again identified West as the attacker. West now claims that, by first showing the single photograph of him to Riedel, the in-court identification was tainted. The trial court found that the Riedel's identification of West was based upon his observations at the scene of the crime and did not result from any improper suggestion. These findings are supported by the record.
        West testified and admitted that he was present at the apartment and that he stabbed Riedel. West claims, however, that after he stabbed Riedel, he blacked out and is not aware of his actions beyond that point. Since West admits being in the apartment and stabbing Riedel, there can be no error in admitting his subsequent in-court identification by Riedel. Anderson v. State, 501 S.W.2d 327, 328 (Tex. Crim. App. 1973). The first point of error is overruled.
        West also contends that the evidence is insufficient to support a jury's finding that the two attempted murders were committed during the course of the same criminal transaction. Appellate review of sufficiency is limited to determining whether viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 S.W.2d 307, 319 (1979); Gerard v. State, 631 S.W.2d 162, 163 (Tex. Crim. App. 1982); Lopez v. State, 630 S.W.2d 936, 940 (Tex. Civ. App.--1982).
        West was convicted for attempt under the Texas Penal code section 19.03(a)(6)(A) which provides:
        (a) a person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
 
        (6) the person murders more than one person:
 
        (A) during the same criminal transaction
West claims that there was "no sense of cohesiveness which would made it apparent that the factual scenario was a single transaction", arguing that the attacks were "random separate incidents." We disagree.
        From the moment that West appeared in O'Brien's apartment, brandishing a knife, his victims were at his mercy. After stabbing and seriously wounding Riedel he made him lie down in the bathtub. Photos produced at trial show that Riedel bled profusely. West then grabbed O'Brien, dragged her into the living room, and viciously attacked her, stabbing her once in the arm and then through the heart, then left the apartment. There is no intervening act or event that breaks up this transaction. The victims were assaulted one right after the other, in the same apartment, and in the same manner. There is clearly sufficient evidence for a rational trier of fact to have found that these attempted murders were part of the same criminal transaction. The second point of error is overruled.
        Finally, West says that the language of Texas Penal Code 19.03(a)(6)(A) is unconstitutionally void for vagueness because the phrase "criminal transaction" is not defined.
        A criminal statute must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and punishable so that he may act accordingly. A statute is not unconstitutionally vague merely because the words or terms are not defined. Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988). Where words are not defined, the words employed are ordinarily given their plain meaning, unless the statute clearly shows that they were used in some other sense. Campos v. State, 623 S.W.2d 657, 658 (Tex. Crim. App. 1981).
        The issue presented here is whether a reasonable person would have been placed on notice by this statute that his act of stabbing two people, one right after the other, in the same location and with the same weapon constituted the attempted murder of more than one person during the "same criminal transaction." Applying the plain meaning of the statute, we conclude that a person of ordinary intelligence would know that the two attempted murders, closely related in time, place, manner and means were part of the same criminal transaction. Compare Burns v. State, 728 S.W.2d 114, 116 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd.). (For purposes of sections of penal code defining sexual assault, the "criminal episode" commences when the attacker in any way restricts the victim's freedom of movement and it ends with the final release or escape of the victim from the attacker's control.) The third point of error is overruled.
        We affirm the trial court's judgment.
 
                                                  
                                                  PAT McCLUNG
                                                  JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00374.F
 
 
 
File Date[01-02-89]
File Name[880374F]