Rodriguez v. State

• Decision Date: 03 July 1997
• Docket Number: No. 03-95-00742-CR,03-95-00742-CR
• Citation: 953 S.W.2d 342
• Parties: Albert Ray RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 342

953 S.W.2d 342

Albert Ray RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 03-95-00742-CR.

Court of Appeals of Texas,

Austin.

July 3, 1997.

Discretionary Review Refused Dec. 18, 1997.

Linda Icenhauer-Ramirez, Icenhauer-Ramirez & Hubner, P.C., Austin, for Appellant.

Ronald Earle, Dist. Atty., Jonathan D. Stick, Asst. Distt. Atty., Austin, for Appellee.

Before POWERS, KIDD and ONION ^*, JJ.

JOHN F. ONION, Jr., Justice (Retired).

This appeal is taken from a conviction for felony murder. Tex. Penal Code Ann. § 19.02(b)(3) (West 1994). After finding appellant, Albert Ray Rodriguez, guilty, the jury assessed his punishment at fifty years' imprisonment and a fine of $4,000.

POINT OF ERROR

In his sole point of error, appellant contends that the trial court erred in overruling the objection to the court's jury charge regarding the offense of felony murder because the merger doctrine barred his conviction for felony murder.

FACTS

The sufficiency of the evidence to sustain the conviction is not challenged. A brief recitation of the facts will place the point of error in proper perspective. The victim, James Beaty, was shot and killed while riding as a passenger in a red Pontiac Firebird on Francisco Street in Austin on the night of April 21, 1995. It was two days before Beaty's nineteenth birthday. Michelle Esquivel, Beaty's girlfriend, who was driving, was shot in the right thigh. Joseph Michael Gonzales, a passenger in the rear seat, escaped injury.

Appellant testified that he had purchased a .45 caliber handgun "off the street" the night before the shooting and had a friend purchase ammunition for the weapon on Friday morning, April 21st. That night the 17-year old appellant was in the back yard of his parent's home talking on a cordless telephone when he saw a red Pontiac Firebird drive past. He retrieved the pistol which he had concealed under a car and walked to the front of the house. There was testimony that the Firebird had driven past the house once or twice. When the Firebird appeared again after the appellant had obtained his pistol, he observed the Firebird "slow down." Appellant recognized Beaty as the front seat passenger. Appellant testified he then "panicked" and fired the pistol repeatedly at the Firebird, perhaps eight times. Appellant claimed he fired the pistol at the driver's door, despite the fact that Beaty, of whom he was putatively afraid, was seated in the passenger seat. Appellant explained that Beaty had threatened his life, that thereafter there had been a drive-by shooting at his parents' home where he lived, and that he had been shot at while in his own automobile only days before the fatal incident. Appellant could not connect Beaty with the two shootings, but believed the gang to which Beaty belonged was involved. Appellant related that at 2:00 or 3:00 a.m. on Friday before Easter Sunday 1995, he and a cousin had driven to a Jack-In-The-Box restaurant; that Beaty and Michelle Esquivel were working at the drive-thru window; that while he knew Beaty Michelle Esquivel testified that she and Beaty had been at the home of relatives nearby and had gone to a store and were returning to their relatives' house when they were fired upon. They had offered Gonzales a ride when they encountered him at the store.

as Pollo Loco (Crazy Chicken) and knew he was a member of the Bros Gang, there had been no difficulty between them; that Beaty began to stare at him, threw gang signs at him, and then threatened his life. Appellant got his food order and left. He later saw Beaty on Easter Sunday in a park. Beaty again threw gang signs, but no trouble developed because appellant left the park. Appellant denied being in a gang and claimed the Outloz or Oz group to which he belonged was merely a graffiti group.

Chief Medical Examiner, Dr. Roberto Bayardo, testified that Beaty died from "massive internal bleeding due to a gunshot wound that penetrated his body in the left upper back and exited through the right chest wall." The .45 caliber weapon was recovered and the bullets retrieved from the car and elsewhere were shown to have been fired from appellant's firearm.

INDICTMENT AND JURY CHARGE

Subsection (b) of section 19.02 of the Texas Penal Code under which appellant was charged provides:

(b) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) 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 attempts or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Tex. Penal Code Ann. § 19.02(b) (West 1994). ¹

Section 22.05 (Deadly Conduct) of the Texas Penal Code provides:

(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

(b) A person commits an offense if he knowingly discharges a firearm at or in the direction of:

(1) one or more individuals; or

(2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.

(c) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.

(d) For purposes of this section, "building," "habitation," and "vehicle" have the meanings assigned those terms by Section 30.01.

(e) An offense under Subsection (a) is a Class A misdemeanor. An offense under Subsection (b) is a felony of the third degree.

Tex. Penal Code Ann. § 22.05 (West 1994). ²

The instant indictment charged appellant under all three modes of committing first degree murder under section 19.02 in one count with three separate paragraphs. The third paragraph charged felony murder by alleging that appellant

did then and there commit a felony, namely, deadly conduct, and in the course and furtherance of the commission of said felony At the conclusion of the guilt/innocence phase of the trial, the proposed jury charge submitted all three modes of murder under section 19.02, as well as the offense of manslaughter. See Tex. Penal Code Ann. § 19.04 (West 1994). ³ Appellant objected to the submission of felony murder because the charge boot strapped the offense of deadly conduct into felony murder, violating the merger doctrine and the decision in Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App.1978). Appellant contended that the felony murder rule has no application where the underlying felony sought to be used as the basis for the operation of the rule is the very act which caused the homicide. The trial court overruled the objection and submitted the charge authorizing the jury to first consider murder under section 19.02(b)(1), then murder under section 19.02(b)(2), and then felony murder under section 19.02(b)(3). Lastly, the trial court submitted the offense of manslaughter. There was also an abstract charge on section 6.04(b) ⁴ but it was never applied to the facts and a conviction was not authorized on that theory.

commit an act clearly dangerous to human life, namely, knowingly discharge a firearm, a deadly weapon, at and in the direction of one or more individuals and at and in the direction of a motor vehicle and was reckless as to whether the said motor vehicle was occupied, thereby causing the death of James Beaty.

The jury found appellant guilty of felony murder. It is appellant's contention that the trial court erred in charging on felony murder over timely objection and that any conviction resulting therefrom cannot stand.

COMMON LAW

At early common law, an individual was held liable for murder when he caused a death, although unintentionally, while committing a felony. 4 William Blackstone, Commentaries 200 (1897). This concept is known as the felony murder rule. The first statement of the common law felony murder rule has frequently been attributed to the seventeenth century pronouncement of Lord Coke: "If the act be unlawful, it is murder." 3 Edward Coke, Institutes of the Laws of England (London 1797); see also 3 James Stephen, A History of the Criminal Laws of England 52-57 (1883); 2 Charles E. Torcia, Wharton's Criminal Law, Murder § 146, at 296 (15th ed.1994); Phillip Zelikow, The Constitutionality of Imposing the Death Penalty for Felony Murder, 15 Hous. L.Rev. 356, 364 (1978) (hereinafter Zelikow ). ⁵

The felony murder doctrine, as developed at common law, provided that where a death occurs in the course of, or as a consequence of, the commission of another distinct felony, the felonious intent involved in the underlying felony may be transferred to supply the intent to kill necessary to characterize the death as murder. W.E. Shipley, Annotation, Judicial Abrogation of Felony-Murder Doctrine, 13 A.L.R.4th 1226, 1227 (1982). Few legal doctrines have been as maligned and yet have shown as great a resilience as the felony murder rule. Roth & Sundby at 446. Perhaps as a result, the "felony murder rule has been subject to many convoluted interpretations in the various jurisdictions ..." Zelikow at 367.

The early felony murder rule lacked significance since all felonies in England at the time were punishable by death. See Wayne LaFave & Austin W. Scott, Handbook on Criminal Law § 71, at 546 n. 4 (West 1972) (hereinafter LaFave & Scott ). If the intended act was a felony, its felonious design was imputed to the act actually committed, if that act was a homicide, it became murder since it was immaterial whether the offender was hanged for one felony or the other. See Jenkins v. State, 230 A.2d 262, 268 (Del.1967); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 476 (1958); Powers v. Commonwealth, 61 S.W. 735, 741 (Ky.1901). Needless to...