Royerick Washington v. State, 2013 Tex. App. LEXIS 14121

Background

Christmas 2009: Club Motions crowd; Royerick Washington attended with acquaintances, including Deandre Gray, Gibson, Davis, Edwards, and Prudhomme.
Sashe Gray and Dalicia Donatta leave the club; Donatta drives Sashe’s Mitsubishi on Eastex Freeway while Sashe sits in passenger seat; multiple cars swanging on freeway observed.
Washington and his companions leave the club in a green Isuzu Rodeo; gunfire erupts after swanging; prosecution witnesses describe shooting from inside the Isuzu.
Donatta and Sashe are hit; Sashe dies from a bullet that entered her back and traveled to the heart; bullets damage other cars; a 9mm pistol is recovered from the red Oldsmobile.
Appellant admits at later interrogation to being in the Isuzu and later to shooting; other witnesses testify to gunshots and distances; police recover shell casings and bullets from vehicles.
Washington is indicted and convicted of felony murder predicated on deadly conduct; during punishment, witnesses testify to his family history and counseling; he is sentenced to 50 years.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can deadly conduct serve as the underlying felony for felony murder?	Washington: deadly conduct is a lesser included offense of manslaughter; cannot be underlying felony.	State: deadly conduct is not a lesser included offense of manslaughter and may underlie felony murder.	Deadly conduct can be the underlying felony for felony murder; issue overruled.
Is the evidence legally sufficient to prove Washington as principal or party to Sashe Gray's death?	State: sufficient evidence links Washington to the fatal shot and to the conduct; may convict as principal.	Washington: not enough to link him to the fatal shot or to show he acted as a party.	Sufficient evidence supports conviction as a principal.
Was the jury charge error regarding party liability harmless?	State: the charge properly included party liability; even if error, supportive evidence favors conviction.	Washington: party instruction improper given facts; potential egregious harm.	Any error is harmless; evidence supports conviction as a principal.
Was there ineffective assistance of counsel for failing to investigate and present mitigating/punishment evidence?	Washington: counsel failed to obtain investigators, experts, and to present certain mitigating evidence.	State: no prejudice shown; evidence was duplicative and mitigation would not have tipped the scales.	No ineffective assistance; denial of motion for new trial affirmed.
Did counsel’s failure to request certain jury instructions (accident, manslaughter, accomplice witness) prejudice the defense?	Washington: failure to request these instructions prejudiced the defense.	State: instructions were not required or strategic decisions supported not to request.	No reversible error; strategic considerations and sufficient non-accomplice evidence negate prejudice.

Key Cases Cited

Johnson v. State, 4 S.W.3d 254 (Tex. Crim. App. 1999) (underlying felony must not be manslaughter if it's a greater-mental-state offense)
Miles v. State, 259 S.W.3d 240 (Tex. App.—Texarkana 2008) (deadly conduct can serve as underlying felony for felony murder)
Yandell v. State, 46 S.W.3d 357 (Tex. App.—Austin 2001) (felony deadly conduct not a lesser included of manslaughter; supports underlying felony theory)
Rodriguez v. State, 953 S.W.2d 342 (Tex. App.—Austin 1997) (approval cited regarding underlying felony choices)
Lawson v. State, 64 S.W.3d 396 (Tex. Crim. App. 2001) (discretion regarding underlying felony and jury instructions)
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) (harmless error standard for jury-charge errors involving party liability)
Gross v. State, 380 S.W.3d 181 (Tex. Crim. App. 2012) (harmlessness and standards for party liability and evidence)
Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991) (accomplice-witness rules and prejudice considerations)