Lawson v. State

• Decision Date: 05 December 2001
• Docket Number: No. 1767-00.,1767-00.
• Citation: 64 S.W.3d 396
• Parties: Scott Mattison LAWSON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

64 S.W.3d 396

Scott Mattison LAWSON, Appellant, v. The STATE of Texas.

No. 1767-00.

Court of Criminal Appeals of Texas.

December 5, 2001.

C.R. Daffern, Amarillo, for Appellant.

Jim English, Asst. DA, Hereford, Matthew Paul, State's Atty., Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., WOMACK, KEASLER, HOLCOMB, and COCHRAN, J.J., joined.

Appellant was convicted of murder pursuant to the felony murder doctrine embodied in Texas Penal Code, Section 19.02(b)(3). That section provides that a person is guilty of murder if he causes the death of another during the commission of a felony, other than manslaughter. The instant indictment alleged that appellant killed the victim while committing an "intentional and knowing" aggravated assault of that individual.

Appellant claimed on direct appeal that he could not be prosecuted for murder under Section 19.02(b)(3) because the aggravated assault was the same act that killed the victim. The Court of Appeals, on direct appeal and again on remand from this Court for reconsideration in light of our decision in Johnson v. State, rejected this claim. Lawson v. State, 26 S.W.3d 920, 921-22 (Tex.App.-Amarillo 2000, pet. granted); see also Johnson v. State, 4 S.W.3d 254 (Tex.Cr.App.1999). We exercised our discretionary authority to review this decision.

In Johnson v. State, we limited this Court's decision in Garrett v. State, which held that "there must be a showing of felonious criminal conduct other than the assault causing the homicide" to support a murder conviction under the felony murder rule. See Johnson, 4 S.W.3d at 258; Garrett v. State, 573 S.W.2d 543, 546 (Tex. Cr.App. [panel op.] 1978). Thus, Johnson restricted Garrett to "hereinafter [stand] only for the proposition that a conviction for felony murder under section 19.02(b)(3), will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter." See Johnson, 4 S.W.3d at 258. We will follow Johnson.

Applying Johnson, the issue here is whether an "intentional and knowing" aggravated assault is a lesser included offense of manslaughter. Manslaughter is defined as recklessly causing an individual's death. See Section 19.04, Texas Penal Code. The statutory underlying felony with which appellant was charged is an "intentional and knowing" aggravated assault. See Sections 22.01(a)(1) & 22.02(a)(1), Texas Penal Code, (defining the offense of aggravated assault). An "intentional and knowing" aggravated assault is not a lesser included offense of manslaughter, nor is it statutorily includable in manslaughter. See Johnson, 4 S.W.3d at 258; Garrett, 573 S.W.2d at 546.

The judgment of the Court of Appeals is, therefore, affirmed.

COCHRAN, J., filed a concurring opinion in which KELLER, P.J., KEASLER and Holcomb, J.J., joined.

MEYERS, J., filed a dissenting opinion in which PRICE and JOHNSON, J.J., joined. JOHNSON, J., filed a dissenting opinion in which MEYERS, J., joined.

COCHRAN, J., filed a concurring opinion in which, KELLER, PJ., KEASLER and HOLCOMB, JJ., joined.

I join the majority opinion. I write separately to provide an additional rationale for our decision and to review the historical purpose of the felony murder rule in hopes of assisting the bench and bar in analyzing the application of this doctrine.

The felony murder rule developed under early common law. It holds that a person whose conduct causes an unintended death during the commission or attempted commission of a felony is guilty of murder.¹ Thus, if a robber points a gun at the bank teller and the gun "accidentally" discharges, killing the bank teller, then the bank robber is guilty of murder. It matters not whether the robber intended to shoot or whether he intended to kill.² Train robbers who force a brakeman to serve as their shield and take them to the express car are guilty of murder when a passenger, hoping to foil the robbery, shoots and kills the brakeman.³ Under common law, one who commits arson may be found guilty of the murder of a person who died inside the house or by fighting the fire even though the arsonist did not intend to cause any personal injury by his act.⁴

In contrast, the offense of manslaughter is never felony murder, for obvious reasons.⁵ Involuntary manslaughter is, by definition, an accidental homicide, committed with recklessness. If involuntary manslaughter could form the basis of a felony murder prosecution, each and every such recklessly caused death would constitute felony murder. The offense of involuntary manslaughter would be swallowed up by the felony murder rule. Voluntary manslaughter is also always exempt from the felony murder doctrine because it is illogical to assign a lesser punishment for an actor who commits a murder in the "heat of passion," but then turn around and bump the crime back up to murder under the felony murder doctrine.⁶

The principle behind the common law felony murder rule is this: When you embark upon an inherently dangerous criminal project, you are responsible for the deadly consequences that result from that felonious conduct.⁷ The doctrine originally applied to all felonies or those crimes denominated as malum in se.⁸ Because virtually all crimes in 18th and 19th century England were classified as felonies, the rule became intolerably overbroad and harsh in its consequences. As one English judge put it in 1887: "it was said that if a man shot at a fowl with intent to steal it, and accidentally killed a man, he was to be accounted guilty of murder, because the act was done in the commission of a felony. I very much doubt, however, whether this is really the law ..."⁹

If it ever had been English law that a chicken thief who accidentally killed a person in the course of stealing the fowl is guilty of murder, that law quickly changed. The common law rule was narrowed to this: a homicide resulting from any felony committed in a dangerous or violent way, is murder.¹⁰

In the United States, courts and legislatures have narrowed the original (and overbroad) felony murder doctrine in various ways, including one or more of the following:¹¹

1) by limiting its application to certain enumerated felonies which are inherently dangerous;¹²

2) by imposing stricter criteria for determining whether the fatal act created a foreseeable risk to human life;¹³

3) by imposing a stricter standard for the time that may elapse between the felony's commission and the victim's death;¹⁴ or

4) by requiring that the underlying felony be independent from the conduct which causes the death.¹⁵

The Texas Legislature chose to narrow the common law felony murder rule set out in section 19.02(b)(3) of the Penal Code in two distinct ways. First, the statute requires that, regardless of the specific underlying felony (always excepting manslaughter, of course), the defendant must commit an act that is "clearly dangerous to human life." Instead of simply enumerating specific felonies which, in the abstract, are usually dangerous, the Legislature required that the state prove that this specific actor, under these specific circumstances, did some act that was clearly dangerous. This limitation preserves the original justification for the felony murder rule—a person is criminally responsible for the consequences of his dangerous and violent criminal conduct—while protecting the defendant against prosecution for murder for an unforeseeable death which occurs during the commission of a felony which is violent in the abstract, but not in the particular case.¹⁶ Second, the Legislature narrowed the proximate cause relationship in the felony murder rule. Not only must the defendant commit an act that is clearly dangerous to human life, it must also be that specific act which causes the victim's death. The State must prove that but for the dangerous act, the deceased would not have died.¹⁷ The death must be the natural and probable consequence of the defendant's dangerous conduct.¹⁸

Despite these two explicit legislative limitations, this Court imposed another, non-statutory, restriction on the felony murder rule. This extra limitation was the "merger" doctrine, announced in Garrett v. State,¹⁹ which held that the actor's conduct constituting the underlying felony must be separate and distinct from the "clearly dangerous" act which causes the person's death. In Garrett, the defendant initiated a fight with a store clerk, pulled a gun to scare him, and the gun "went off," killing the clerk. Garrett was charged with felony murder, with the underlying felony being aggravated assault. This Court held that "[t]here must be a showing of felonious criminal conduct other than the assault causing the homicide."²⁰ There is not and never was any such requirement in section 19.02(b)(3), nor was there any such requirement at common law. Under modern common law, "[h]omicide is murder if the death results from the perpetration or attempted perpetration of an inherently dangerous felony."²¹ Aggravated assault is surely an inherently dangerous felony. Even if a felony assault were not inherently dangerous in a specific case under specific circumstances, the Texas Legislature restricted the application of the doctrine to those particular instances in which the actor committed an act clearly dangerous to human life which caused the death of a person.

The concern in Garrett was that every aggravated assault that resulted in a death would then be subject to prosecution as a murder. True enough, if the actor commits an act clearly dangerous to human life which causes the person's death. That is precisely the rationale of the felony murder rule. But unlike involuntary manslaughter, not every aggravated assault results in death. If manslaughter could constitute the underlying felony in a felony murder, then every single manslaughter case would be automatically upped to felony murder. The offense of manslaughter itself would be obviated. That is neither...