Johnson v. State

• Decision Date: 27 October 1999
• Citation: 4 S.W.3d 254
• Parties: (Tex.Crim.App. 1999) RESHAWN LEWAYNE JOHNSON, Appellant, v. THE STATE OF TEXAS. NO. 1390-98.
• Court: Texas Court of Criminal Appeals

Page 254

4 S.W.3d 254 (Tex.Crim.App. 1999)

RESHAWN LEWAYNE JOHNSON, Appellant, v. THE STATE OF TEXAS.

NO. 1390-98.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS.

October 27, 1999.

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS LUBBOCK COUNTY

OPINION

MEYERS, J., delivered the opinion of the Court, joined by Mansfield, Keller, Price, Holland, Womack, Johnson, and Keasler, J.J.

Appellant was convicted of murder and the jury assessed punishment at confinement for life. The Court of Appeals for the Seventh Judicial District affirmed appellant's conviction and sentence. Johnson v. State, No. 07-97-0471 slip op. (Tex. App.--Amarillo July 22, 1998)(designated do not publish). We granted appellant's petition for discretionary review to decide whether a defendant may be convicted of the offense of felony murder when the underlying felony is injury to a child, and the acts that constitute that offense are the same acts that constitute "an act clearly dangerous to human life." TEX. PENAL CODE 19.02(b)(3).

Appellant was indicted for felony murder. The indictment alleged appellant committed the felony offense of Injury to a Child "and while in the course of and furtherance of commission of said offense, did then and there commit an act clearly dangerous to human life, to-wit: hitting [the victim] with a deadly weapon, to-wit: a blunt object . . .."¹ On direct appeal appellant argued that the acts allegedly forming the offense of injury to a child were the same acts relied upon by the State to prove appellant's commission of "an act clearly dangerous to human life," to-wit, hitting the deceased with a blunt object. Appellant contended the act constituting the underlying felony and the act clearly dangerous to human life merged, and thus could not support a conviction for felony murder, relying on Garrett v. State, 573 S.W.2d 543 (Tex. Crim. App. 1978). The Court of Appeals held this argument had been rejected in Ex parte Easter, 615 S.W.2d 719 (Tex. Crim. App. 1981), cert. denied, 454 U.S. 943 (1981), which the Court of Appeals interpreted as holding Garrett inapplicable to circumstances like those presented in the instant case.

The State also says appellant's argument was rejected in Easter. The State further contends that Garrett is flawed and should be overruled, but to the extent it retains any precedential authority, it ought to be limited to its facts. Finally, the State reasons that a plain reading of the felony murder statute requires this Court to find no improper merger in this case.

Texas Penal Code section 19.02(b)(3), the felony murder provision, provides:

A person commits an offense if he . . . commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

The felony murder rule dispenses with the necessity of proving mens rea accompanying the homicide itself; the underlying felony supplies the culpable mental state. Garrett, 573 S.W.2d at 545. Under the plain language of the provision, it appears that any felony can serve as the underlying felony, with the exception of manslaughter.

Despite the plain language, we have interpreted section 19.02(b)(3) as exempting from the felony murder rule not only manslaughter, but also lesser included offenses of manslaughter. Garrett, supra. In Garrett, the defendant became involved in an altercation with a store clerk. The defendant claimed he pulled his gun in an attempt to scare the clerk. Id. at 544-45. The gun went off and killed the clerk, although the defendant maintained he had not intended to fire. The defendant was charged with felony murder, the underlying felony being aggravated assault on the deceased. The question presented was whether the felony murder doctrine as embodied in section 19.02(b)(3), applies where the underlying felony is an assault that is inherent in the felony. We said it does not, emphasizing that to hold otherwise would render every aggravated assault resulting in death a felony murder, thereby relieving the State of the burden of proving mental state in most murder cases since murder usually results from some form of assault. We stated, "There must be a showing of felonious criminal conduct other than the assault causing the homicide." Id. at 546. We noted this view was consistent with section 19.02(b)(3), reasoning that the provision's exclusion of manslaughter necessarily encompassed lesser offenses that were included in voluntary manslaughter.

The language used in Garrett, requiring a "showing of felonious criminal conduct other than the assault causing the homicide[,]" suggested wholesale adoption of what is known as the "merger doctrine." Id. As explained by one court of appeals, "[w]here there exists no general mens rea based upon proof of the commission of a separate felony which may be transferred from that crime to an independent homicide committed in the course thereof, the felony murder rule cannot apply because there is a 'merger' of the two offenses." Richardson v. State, 823 S.W.2d 710, 714 (Tex. App.--San Antonio 1992, pet. ref'd). The underlying felony has to be an act separate and apart from the assault resulting in the death.

But since Garrett, there has been little indication that the Court intended to apply such a broadly stated rule. Certainly, we retreated from so broad an application in Easter. In Easter, like the instant case, the underlying felony was injury to a child. The defendant complained in a post-conviction writ of habeas corpus that his conviction for felony murder could not stand because the acts allegedly constituting the underlying felony of injury to a child were the same acts as those allegedly causing the resulting death. We held Garrett inapplicable. While our reasons for so holding were not articulated exceedingly clearly,² we did point to one "cogent reason for holding that the rule enunciated in Garrett v. State, supra, is inapplicable here[,]" that being the fact that the crime of injury to a child is not a lesser included offense to murder:³

[I]n Garrett, supra, the aggravated assault was a lesser included offense in the homicide; and, this court properly held that it could not be used to supply the necessary intent in the murder case.

However, the language carefully chosen in Garrett should not be given an overly broad meaning. Not every "assaultive" offense, if alleged as an underlying felony, will merge with the homicide in a felony murder indictment.

Id. at 721.

Despite the suggestion in Easter that Garrett should be limited, the Court subsequently reaffirmed application of the merger rule as set out in Garrett, in its opinion on original submission in Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1982). There, the indictment alleged the felony offense of criminal mischief and further alleged that in the course of and in furtherance of such felony, the defendant committed an act clearly dangerous to human life, shooting a gun into occupied dwelling, which act caused death. The jury charge authorized conviction by murder or, alternatively, felony murder. We observed that if the jury had convicted on the basis of the felony murder theory, its verdict could not stand for the reasons stated in Garrett. We then stated, "[n]othing held in Easter militates against our application of the principles enunciated in Garrett to the case at bar."⁴ Id. at 322. Upon this, we reversed the judgment on the ground that the verdict could have rested on the felony murder theory held untenable in Garrett.

After our opinion on original submission in Aguirre, but before our opinion on rehearing five years later, the Court delivered Murphy v. State, 665 S.W.2d 116 (Tex. Crim. App. 1983). In Murphy, the indictment alleged the defendant committed the felony offense of arson by starting a fire in a habitation for the purpose of collecting insurance proceeds, and in the course of and furtherance of the commission of that offense, committed an act clearly dangerous to human life, to wit: starting a fire in a habitation, thereby causing the death of an individual. We granted review, in part, to examine the Court of Appeals' holding that the felony murder merger doctrine did not apply. The defendant argued that the conduct alleged constituting the "gist of the underlying felony, namely, 'starting a fire,' was the exact same act alleged to have been clearly dangerous to human life and thus was 'inherent in the homicide.'" Murphy, 665 S.W.2d at 119. We cited Garrett as standing for the proposition that the felonymurder doctrine, embodied in section 19.02(a)(3), does not apply "where the precedent felony is an assault inherent in the homicide." Id. at 120. We held Garrett inapplicable to the facts presented in Murphy:

In the instant cause, the indictment alleges and the proof shows that appellant was engaged in felonious criminal conduct, namely, arson at the time the deceased was killed....