Yandell v. State

• Decision Date: 12 April 2001
• Docket Number: No. 03-00-00408-CR,03-00-00408-CR
• Citation: 46 S.W.3d 357
• Parties: (Tex.App.-Austin 2001) Hue-Jun Yandell, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Page 357

46 S.W.3d 357 (Tex.App.-Austin 2001)

Hue-Jun Yandell, Appellant v. The State of Texas, Appellee

No. 03-00-00408-CR

Court of Appeals of Texas, Austin.

April 12, 2001

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT NO. 50,635, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Lee Yeakel, Justice

A jury found appellant Hue-Jun Yandell guilty of murder and assessed punishment at imprisonment for thirty years. Appellant brings forward six issues or points of error urging that he could not be convicted of felony murder, and that the evidence is legally and factually insufficient to sustain a conviction for either intentional murder or murder in the course of committing an act clearly dangerous to human life. See Tex. Penal Code Ann. § 19.02(b) (West 1994). We will overrule these contentions and affirm.

BACKGROUND

At some time between the hours of 9:00 p.m. and 2:00 a.m. on November 7 and 8, 1999, there was a confrontation between Carlo Rossi, in his pickup truck, and the occupants of a Honda Accord belonging to the deceased, Hector Duarte, Jr. According to Rossi, the Accord pulled up beside him at a stop light. The occupants of the Accord had crowbars and weapons. As Rossi drove away after the light changed, the Accord passed him. An object thrown from the Accord struck Rossi's truck, denting it. One of the occupants of the Accord, Marco Sanchez, testified that he and Duarte exchanged words with Rossi at the stoplight, but denied that they threw anything at him.

At around 2:30 a.m., Rossi and several of his friends, including appellant, Jose Ochoa, and Michael Shaw, undertook to find the Accord. They were in appellant's Mazda, which Ochoa drove because appellant had been drinking. After two hours of looking, they spotted the Accord at a convenience store. At this point, the Accord was occupied by Duarte, who was driving, Sanchez, and Joshua Plummer. Ochoa attempted to block the Accord's exit with the Mazda, but was unsuccessful. The Accord drove away from the store, pursued by the Mazda.

Appellant and his companions saw that Sanchez and Plummer were armed with a baseball bat and a metal pipe. Appellant testified that he was afraid of being beaten, and that he took out the .45 caliber pistol he kept under his passenger seat after something was thrown from the Accord. Rossi, Ochoa, and Shaw testified that they urged appellant not to shoot and to put the gun away; appellant confirmed this. Disregarding the urgings of his companions, appellant rested the muzzle of the pistol on the Mazda's outside mirror and fired three shots at the Accord. Appellant claimed he was shooting at the Accord's tires. One of the bullets struck Duarte in the head. The Accord swerved and struck a parked vehicle. The Mazda sped away, and appellant threw his pistol into a vacant lot. Duarte died three days later.

Appellant insisted that he did not intend to shoot anyone and denied deliberately shooting into the passenger compartment of the Accord. Appellant said that he thought the driver of the Accord had lost control, perhaps because a tire had been punctured, and did not realize until later that Duarte had been shot.

The indictment contained three paragraphs, each accusing appellant of murdering Duarte under one of the three statutory forms of the offense. Paragraph one alleged that appellant"intentionally and knowingly cause[d] the death of an individual, Hector Duarte, Jr., by shooting him in the head with a deadly weapon, to-wit: a firearm." See Tex. Penal Code Ann. § 19.02(b)(1). Paragraph two alleged that appellant, "intending to cause serious bodily injury" to Duarte, "commit[ted] an act clearly dangerous to human life, to-wit: did then and there fire a deadly weapon, to-wit: a firearm at an automobile being driven by the said Hector Duarte, Jr., thereby causing the death of the said individual." See id. § 19.02(b)(2). Paragraph three alleged that appellant:

attempt[ed] to commit and did commit a felony, to-wit: deadly conduct and in the course of and in the furtherance of and in the immediate flight from the said felony did then and there intentionally and knowingly attempt to commit and did commit an act which was clearly dangerous to human life, to-wit: did then and there fire a deadly weapon, to-wit: a firearm at a motor vehicle occupied by Hector Duarte, Jr., which said act cause the death of Hector Duarte, Jr.

See id. § 19.02(b)(3).

FELONY MURDER ISSUES

Appellant moved to quash paragraph three of the indictment on the ground that deadly conduct cannot be the underlying offense in a prosecution for felony murder. Alternatively, appellant urged that paragraph three was defective because it failed to allege the culpable mental state for deadly conduct. Appellant also advanced the latter argument in an objection to the jury charge. The overruling of the motion to quash and of the objection to the charge are the subjects of appellant's fourth, fifth, and sixth points of error.

Can deadly conduct underlie felony murder?

A person commits felony murder 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.

Tex. Penal Code Ann. § 19.02(b)(3) (emphasis added).

In one of its first opinions construing the felony murder statute, the court of criminal appeals indicated that it contained a general "merger doctrine" under which a prosecution for felony murder could not be maintained if the homicidal act was included in the underlying felony. See Garrett v. State, 573 S.W.2d 543, 546 (Tex. Crim. App. 1978). The court wrote, "There must be a showing of felonious criminal conduct other than the assault causing the homicide." Id. The court recently disavowed this language, holding that "Garrett hereinafter stands 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." Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999). It is appellant's contention that deadly conduct is a lesser included offense of manslaughter and therefore cannot underlie a conviction for felony murder.

In Rodriguez v. State, 953 S.W.2d 342, 354 (Tex. App. Austin 1997, pet. ref'd), this Court concluded that deadly conduct could serve as the underlying offense for felony murder. We based this conclusion on a holding that under the plain language of section 19.02(b)(3), only manslaughter was excluded as an underlying felony. Our interpretation of the felony-murder statute must yield to that of the court of criminal appeals. Rodriguez does not speak to the question of whether deadly conduct is a lesser included offense of manslaughter.

In Texas, a lesser included offense is defined by statute. See Tex. Code Crim. Proc. Ann. art. 37.09 (West 1981). In each of the four subdivisions of article 37.09, the purported lesser included offense is compared to the offense for which the accused is on trial in order to determine if the accused is entitled to a jury instruction authorizing his conviction for the lesser offense. See id. But under Johnson, the question is not whether the underlying offense is included within the charged offense of felony murder, but whether it is included within the offense of manslaughter. And the purpose of the question is not to determine whether the accused is entitled to an instruction authorizing his conviction for the lesser offense, but to determine whether that offense may serve as the underlying offense for felony murder under section 19.02(b)(3). The application of article 37.09 in the Johnson context therefore requires a comparison of the elements of the underlying offense alleged in the felony-murder indictment with the statutory elements of manslaughter.

A person commits manslaughter if he "recklessly causes the death of an individual." Tex. Penal Code Ann. § 19.04 (West 1994). A person commits felony deadly conduct 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." Tex. Penal Code Ann. § 22.05(b), (e) (West 1994).¹ In this cause, the State alleged that appellant killed Duarte in the course of committing deadly conduct under section 22.05(b)(2), i.e., in the course of discharging a firearm at a vehicle occupied by Duarte.

An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the greater offense. See Tex. Code Crim. Proc. Ann. art. 37.09(1). To prove the alleged deadly conduct under section 22.05(b)(2), the State was required to prove that appellant knowingly discharged a firearm, a fact not required to establish the commission of manslaughter.

An offense is a lesser included offense if it differs from the greater offense only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission. See Tex. Code Crim. Proc. Ann. art. 37.09(2). While deadly conduct under section 22.05(b)(2) involves a less serious injury than manslaughter, it also differs from manslaughter because it requires proof that the accused knowingly discharged a firearm.

An offense is a lesser included offense if it differs from the greater offense only in the respect that a less culpable mental state suffices to establish its commission. See Tex. Code Crim. Proc. Ann. art. 37.09(3). Deadly conduct under section 22.05(b)(2) requires proof of knowing conduct, a more culpable mental state than the recklessness required for manslaughter.

An offense is a...