Garrett v. State

Decision Date22 November 1978
Docket NumberNo. 2,No. 55305,55305,2
Citation573 S.W.2d 543
PartiesDavid Lee GARRETT, Appellant, v. The STATE of Texas, Appellee
CourtTexas Court of Criminal Appeals

Melvyn Carson Bruder and Barry P. Helft, Dallas, for appellant.

Henry M. Wade, Dist. Atty., W. T. Westmoreland, Jr., and James D. Burnham, Asst. Dist. Attys., Dallas, for the State.

Before ODOM, PHILLIPS and DALLY, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for murder wherein appellant was convicted under the provisions of V.T.C.A., Penal Code Sec. 19.02(a)(3), the felony murder rule, for causing the death of an individual by committing an act clearly dangerous to human life in the course of committing a felony. 1 The felony was an aggravated assault on the deceased. 2 The punishment was 68 years in prison.

Appellant, in a confession, admitted going into the Ben Franklin store where the offense occurred to buy some film. He stated that he became involved in an altercation with the clerk at the cash register and pulled a gun he was carrying to scare the clerk. He asserts the gun went off immediately on being pulled from his pocket and that he had no intention of shooting the clerk. Appellant fled the scene without taking anything but turned himself in shortly thereafter. The State was unable to bring forth any eyewitness who could testify to exactly what had transpired between appellant and decedent except a five-year old boy whose testimony was inconclusive.

In his first ground of error appellant contends the evidence is insufficient because the aggravated assault cannot support a felony murder conviction. In his argument under this ground of error, however, it is made clear that his real complaint is not addressed to the sufficiency of the evidence to support the allegations in the indictment. It is, instead, a challenge to the scope of the felony murder doctrine under Sec. 19.02(a)(3), supra. As stated in his brief, "The ultimate question presented in this ground of error is whether the felony-murder doctrine, as codified in Sec. 19.02(a)(3), should apply where the precedent felony is an assault and is inherent in the homicide."

The felony murder rule dispenses with any inquiry into the mens rea accompanying the homicide itself. The underlying felony supplies the necessary culpable mental state.

"Thus, the culpable state of mind for the act of murder is supplied by the mental state accompanying the underlying committed or attempted felony giving rise to the act. The transference of the mental element establishing criminal responsibility for the original act to the resulting act conforms to and preserves the traditional mens rea requirement of the criminal law." Rodriguez v. State, Tex.Cr.App., 548 S.W.2d 26.

The instant prosecution must rest on the proposition that the intent with which the act of aggravated assault was committed can be transferred to the act which caused the homicide. The indictment charges that the gravamen of the aggravated assault was threatening decedent with a gun and that the dangerous act resulting in death was pulling a loaded pistol from his pocket to scare the decedent. The State is thus attempting to use the very act which caused the homicide, committing an aggravated assault by use of a deadly weapon, as the felony which boosts the homicide itself into the murder category.

To allow this would make murder out of every aggravated assault that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault. Such a result has been rejected in the vast majority of jurisdictions throughout the United States where it is held that a felonious assault resulting in death cannot be used as the felony which permits application of the felony murder rule to the resulting homicide. 3 As then Chief Judge Cardozo stated:

"To make the quality of the intent indifferent, it is not enough to show that the homicide was felonious, or that there was a felonious assault which culminated in homicide . . . Such a holding would mean that every homicide, not justifiable or excusable, would occur in the commission of a felony, with the result that intent to kill and deliberation and premeditation would never be essential . . . The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e. g., robbery or larceny or burglary or rape." People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927). 4

The felony murder rule calls for the transfer of intent from one criminal act to another, from the underlying felony to the act causing the homicide. Rodriguez v. State, supra. In the present case appellant pulled a gun which went off, striking the victim. The aggravated assault and the act resulting in the homicide were one and the same. The application of the felony murder doctrine to situations such as this is an attempt to split into unrelated parts an indivisible transaction. There must be a showing of felonious...

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68 cases
  • People v. Burroughs
    • United States
    • California Supreme Court
    • April 19, 1984
    ...Annot. (1974) 58 A.L.R.3d 851); and that the purpose of the underlying felony be independent of the killing. (E.g., Garrett v. State (Tex.Cr.App.1978) 573 S.W.2d 543; State v. Branch (1966) 244 Or. 97, 415 P.2d 766; see also Annot. (1971) 40 A.L.R.3d 1341.) California's approach to the rule......
  • Fearance v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 7, 1988
    ...same aggravating factor for the robbery as is used to show the offense of murder. He relies on a felony murder case, Garrett v. State, 573 S.W.2d 543 (Tex.Cr.App.1978), for the proposition that when the State decided to allege the elements of robbery, which it was not required to do, it bec......
  • People v. Aaron
    • United States
    • Michigan Supreme Court
    • December 22, 1980
    ...also Anno: What constitutes termination of felony for purpose of felony-murder rule, 58 A.L.R.3d 851.54 See, e.g., Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App., 1978); People v. Moran, 246 N.Y.100, 158 N.E. 35 (1927); State v. Fisher, 120 Kan. 226, 243 P. 291 (1926); State v. Severns, 15......
  • Livingston v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 21, 1987
    ...commit the underlying offense, here the robbery of Janet Caldwell. See Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App.1984); Garrett v. State, 573 S.W.2d 543 (Tex.Cr.App.1978); Rodriguez v. State, 548 S.W.2d 26 (Tex.Cr.App.1977). The first step of the Aguilar test is The remaining question is whe......
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5 books & journal articles
  • Offenses against person
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 1
    • May 4, 2021
    ...to the act causing homicide, there must a showing of felonious criminal conduct other than assault causing homicide. Garrett v. State , 573 S.W.2d 543 (Tex.Crim. App. 1978), overruled in part, Johnson v. State , 4 S.W.3d 254 (Tex.Crim.App. 1999). OFFENSES AGAINST THE PERSON 6-13 Offenses Ag......
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    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2021 Contents
    • August 16, 2021
    ...underlying felony supplies the necessary culpable mental state. This is what is known as the felony- merger doctrine. Garrett v. State, 573 S.W.2d 543, 545 (Tex. Crim. App 1978). Under the plain language of the statute, it appears that any felony can serve as the underlying felony, with the......
  • Trial issues
    • United States
    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 2
    • May 5, 2022
    ...underlying felony supplies the necessary culpable mental state. This is what is known as the felony-merger doctrine. Garrett v. State, 573 S.W.2d 543, 545 (Tex. Crim. App 1978). Under the plain language of the statute, it appears that any felony can serve as the underlying felony, with the ......
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    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 2
    • May 4, 2021
    ...State 220 S.W.3d 926 (Tex. Crim. App. 2007) 3:1690 Garrett v. State 749 S.W.2d 784 (Tex. Crim. App. 1986) 8:560, 8:610 Garrett v. State 573 S.W.2d 543 (Tex. Crim. App. [Panel Op.] 1978) 6:20 Garza v. State 126 S.W.3d 79 (Tex. Crim. App. 2004) 3:990 Garza v. State 522 S.W.2d 693 (Tex. Crim. ......
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