*2 ODEN, Before TOM G. DAVIS and Appellant gone testified that he had CLINTON, JJ. Aguirre’s February speak home on 11 to leaving
her about the children alone at night. OPINION He testified that when ex-wife house, him refused let into the he went CLINTON, Judge. shotgun. to his truck and retrieved He Appeal is taken from a conviction for testified he shot at the door order to finding murder. appellant guilty, After open it and did not consider the fact that punishment assessed years. at 99 someone could have been behind the door. indictment Finally, appellant instant cause con- testified that he knew tains three charging the same that three of his four proba- children were offense. 21.24(b), See bly Article V.A.C.C.P. the house at the fired time he at the ultimately The State shotgun. abandoned one of the door with his charge Authorized death, transferred to the act which caused appellant guilty court to find of either mur the State does not theory by sustain its alleged in paragraph pursu using der as the first very “the act which caused the homi- Code, 19.02(a)(1) cide, ant to V.T.C.A. Penal assault § paragraph murder as in the next deadly use of a weapon, as the id,., (a)(3), pursuant returned a which boosts the homicide itself into the *3 category,” id., general finding appellant “guilty verdict of murder at The 545. Court charged the offense of as in the “application felony observed that of the Thus, way indictment.” because of the the murder doctrine to situations such as this State structured its case and the manner split parts is an into unrelated transaction,” id., charged jury was we are unable to an indivisiblе at 546. Ac- theory alleged cordingly, determine which it was held that “the State im- responsibility prevailed jury properly prosecuted in appellant room.1 under the felony murder doctrine.” complaint
Such is the under five, ground assailing of error the ver- Easter, When, parte in Ex being vague dict of the as so (Tex.Cr.App.1981), S.W.2d 719 the Court way indefinite that “there is no of ascer- it, Garrett revisited the lesson of said taining which two alternatives ... cre- inapplicable to be murder in felony to a jury’s for ated the basis verdict.” The dictment for the death of a child jury opted is determinative for underlying felony alleged inju when the is child, felony-murder theory ry for the to a and concluded the indictment Id., remaining paragraph fundamentally second of the indict- was not defective. ment, point argued its could not sustained for evidentiary verdict be On the State, the reasons set forth Easter —the matter with which we are 543, (Tex.Cr.App.1978). 573 S.W.2d more concerned the instant case—the State, Kuykendall v. 791, simply rejected See 609 S.W.2d Court an effort to attack (Tex.Cr.App.1980). collaterally sufficiency 794-795 of the evidence the conviction. Ibid. support Nothing v. Garrett Easter militates against applica held in our said that felony dispenses murder rule enunciated Garrett principles tion of the any inquiry accompany with into mens rea to the case at bar.2 ing itself, underlying the homicide for the felony supplies general necessary culpable men Since the verdict of the But, there, where, legal may felony tal state. as well have rested mur theory theory is that the intent the act der we have held untenable in with which which case, assault was committed is the circumstances of this the convic- murder," judgment adjudicates ag- 1. The of the trial court crime whereas Garrett “the appellant guilty gravated of the offense murder "as offense in assault was a lesser included in the first and third testing the homicide.” When fundamental suffi- indictment...," and the sentence contains a like felony allege ciency of a murder indictment to ground appel- recitation. In his of error sixth offense, however, perceived is difference quoted finding by lant asserts the the trial court long underlying of little moment. So as the judgment renders the void. The and sentence felony is a other than or in- recitation is does not con- erroneous in that it voluntary manslaughter, the crux of mur- by jury, form to the Article verdict rendered 19.02(a)(3) killing der under is § 42.01, 1, V.A.C.C.P., 9, paras. § 8 and and when attempting clearly danger- to commit "an act necessaiy we have and evidence in the data ous to human life” in the course of furtherance 44.24, record the Article Court is authorized flight underlying felony or in immediate id., judgment to reform a and sentence in a course, Garrett, Of as in it will often therefrom. proper case so as to conform them with the be the case that the homicide is committed jury. Knight verdict of the dangerous engaged highly the felon is “while 692, However, since we conduct," Commentary following Practice 19.- appellant’s grounds must sustain of error one of nothing requires but in the statute judgment, proper and reverse this is conduct сonstitute a lesser offense included in case for reformation. homicide. injury 2. Easter did observe that "the crime a child is not a lesser included offense to the Stromberg v. Cali- upheld. tion cannot be a conviction the felony mur- 359, 367-370, rule, fornia, 283 U.S. 51 S.Ct. der there showing must be a of feloni- 535-36, (1931). 75 L.Ed. ous criminal conduct other than the assault causes the which homicide. judgment of conviction is reversed and the cause, cause remanded.3 alleg- In the instant the indictment proof es shows that DAVIS, Judge, dissenting.
TOM G. engaged conduct, in felonious criminal namely, felony. criminal mischief at Appeal from is taken conviction Therefore, time the deceased was killed. finding appellant guilty, murder. After required there was a show- punishment years. assessed at 99 ing of felonious criminal сonduct other majority reversed convic- than the assault caused the homi- tion on the basis that the Garrett, cide. Unlike act of cannot sustained for rea- shooting criminal mischief in at the *4 sons in set forth resulting house and the homicide of his majority S.W.2d 543. The therefore holds daughter were the not one in same. In this that may because conviction case, appellant attempted open to blow a para- the felony have rested murder shotgun, property offense, door with a a graph indictment, judgment of the the offense, in the and furtherance of such the must be reversed. agree deceased was killed. cannot that Garrett prosecution a murder Garrett requires the reversal under the murder rule forth as set and must conviction therefore dissent. 19.02(a)(3). There, Sec. the Before the court en banc. pointed weapon defendant at the victim. prosecuted State the defendant under OPINION ON STATE’S MOTION alleged murder rule and that FOR REHEARING while he was in course of aggravated McCORMICK, offense of Judge. assault with a deadly weapon and in the furtherance of Appellant was tried for murder of his commission that offense he commit- year daughter. thirteen old The evidence clearly dangerous life, ted an act to human appellant that showed and child’s moth- namely, pulling a pistol loaded out his er married were for a strife-ridden fifteen pocket in turn which caused the death of year After period. their divorce the victim. Testimony continued. at trial trouble judgment Garrett was reversed. alludеd to several instances the interven- This ing during appellant Court noted that the felony which threat- rule calls During evening for the transfer of from kill intent ened to his wife. one 10,1978, appellant criminal act to February another. It was found to went that the Upon discovering defendant's conviction could not his ex-wife’s home. gone stand because the daugh- assault and and had left his three she was resulting fifteen, alone, ters, ages the homicide one were thirteen seven began and the same. It was appellant enraged. therefore held that became He ber- in order evidence ating daugh- for the to be sufficient to his to his ex-wife’s conduct grounds Code, 6.04(b)(2). appel- purposes present In his first and second of error For we challenges sufficiency say sup- lant to is not of evidence to are unable the evidence sufficient theory responsibility. port paragraph of criminal conviction the first indictment, contending there evidence is no ap- grounds third of error In his and fourth "intentionally knowingly” that he caused sufficiency pellant challenges of the evidence to daughter. argues the death of his The State support graph para- his conviction under the second through when he in- fired the door disposition of the our indictment. Given tended to kill former his wife and that felonious ground of his fifth retrial dence of error and likelihood of slay- intent in ing transferred law over to the actual we need not determine whether the evi- of the child. The trial court sufficient to show the fair market pursuant damаged property. causation Pensil V.T.C.A. value daughter objected alleged his eldest of the two manners ters. When mother, appel- paragraphs. per- his characterizations of her The indictment replied going part appellant: that he was to kill his tinent lant afternoon, appellant The next ex-wife. unlawfully “did then and there inten- parked ex-wife’s his drove to his house tionally knowingly cause the death of in front of the house. When his truck Aguirre by shooting Elizabeth her with a door, he ex-wife came to the front demand- gun. she come out and talk to him. She ed that unlawfully “And the Defendant did ... go away him to and then went back told attempt intentionally knowingly point, appellant At inside the house. commit and did commit a to wit: truck, shotgun up got his out walked Criminal Mischief and thе course through porch and fired a on the blast and in furtherance of the said did passed front door. Pellets from this blast and there to commit and did then door, through through the house clearly danger- commit an act which was kitchen, striking appellant’s thir- into the life, shooting gun ous to human to wit: year daughter. Next teen old occupied dwelling into an said act car, raised the hood went to ex-wife’s Aguirre.” caused the death of Elizabeth shotgun and fired another blast into signed by The verdict form the foreman of engine. Then he walked to the back car’s reads as follows: of the house and fired a final blast defendant, “We, Benny Jury, find the Appellant door. then kicked into the back Aguirre, guilty of the offense of daughter in the back door and found his *5 in the indictment.” Appel- kitchen floor. lying wounded on the contention, reviewing appellant’s After at trial that he shot at the lant testified panel appellant’s of this court reversed con- only open in order to it and had no door determining general after viction anyone. kill intent to impossible from the made it verdict Salazar, appellant’s Frank ex-brother-in- theory, either upon which V.T. determine appellant phoned him dur- testified that law Code, 19.02(a)(1) C.A., or Sec- Section Penal 11,1978 ing February the afternoon of rule, ap- 19.02(a)(3) felony murder tion —the (appellant) just him had shot told panel, relying pellant convicted. The his daughter. He asked Salazar to sum- opinion on this Court’s police mon the and an ambulance. Salazar on (Tex.Cr.App.1978), went appellant trying sаid he was testified that appellant if indeed was convict- to hold that to shoot his ex-wife and instead shot 19.02(a)(3) appellant’s ed under Section daughter. in the could not stand because conviction allegations made under Finally, testimony showed that the victim relied on the State hours approximately forty-eight for lived underly- constituted the same act which being shot. of death was a after Cause homicide. ing felony as the act the head. wound to opinion untenable panel find the We submission, appellant argued original Murphy v. light of our decision jury’s in his fifth of error that in that guilt-innocence on was void verdict State, application Murphy v. him of the actual statute apprise it did not charge read as of the court’s paragraph A review he was convicted. follows: the indictment of the record shows “Therefore, you from the evi- if believe charging paragraphs contained three a reasonable doubt beyond dence one same offense. The State abandoned defendant, Murphy, did ... Clyde Clifton proceeded to trial felony offense of Arson In its commit the remaining paragraphs. the two starting in a a fire hab- then and there charge to the the court authorized Angelina County, Tex- itation located found that conviction for murder if the as, Murphy, with by Clyde Clifton owned in either committed the offense damage destroy said hab- like act of arson intent to for such setting itation and to collect insurance re- a habitation on fire and the destruction, damage and and whilе sulting homicide of the victim were of the commis- course of and furtherance case, appellant one in the same. In this then and there sion of said offense did attempted to set fire to a house in order clearly dangerous to hu- commit an act money, destroy it and collect insurance life, fire in a man to wit: did start a offense, property the further- habitation, thereby and did cause the offense, ance of such the deceased was individual, John Thomas death of an killed. Johnson, you will find the defendant guilty.” “Appellant is incorrect in his assertion su- Murphy Because we believe requires of his Garrett reversal bar, clearly
pra, controls the case at we conviction.” quote extensively opinion: from that “Appellant further mаintains reasoning applicable in The same merger operates doctrine as a bar to his testified at trial case bar. prosecution murder. He ar- gone day that on the of the offense he had gues, allegedly ‘the conduct that consti- speak to his ex-wife’s home to to her about gist underlying felony, tuted the night. leaving the children alone at When fire,” namely, “starting a the exact him his ex-wife refused to let into clearly same act to have been house, appellant to his truck and re- went dangerous to human life and thus was shotgun. trieved his He testified that he ‘inherent the homicide.’ did open shot at the door in order to 19.02(a)(3), supra, ‘felony “Sec. not consider the fact that someone could rule’, provides person that a com- bеen behind the door. Unbeknownst have mits an offense he: of his children stand- appellant, one attempts ‘commits or to commit a felo- ing the door and was killed behind ny, involuntary other than shotgun. fired from blast manslaughter, and in the course of and *6 indeed, en appellant
in
If
the
furtherance of the commission or
conduct,
that is
attempts
gaged
... he commits or
in felonious criminal
clearly dangerous
committing felony
by
commit an act
criminal mischief
at
life
human
that causes the death of an
open a door with a shot
tempting to blow
individual.’
clearly
property
gun, this conduct was
State,
of
In
furtherance of this
“In
offense.
the
132 105 acting Tex.Cr.R. S.W.2d 280 lant was with the intent to kill his (1937) (Opinion Rehearing), on this Court This especially light wife. is true in of wrote: appellant’s daughters statements to his that, evening seems
. The rule
well settled
before the offense and
involved,
transaction is
but one
and the
statements
immediately
to Salazar
after
may
one which
have been
offense
the offense. Under Section
this
any
one оf
ways,
committed
several
intent
carried over to the death
charge in
pleader may
the indictment
Appellant’s
point
victim.
first
of error is
count that such
one
offense had been
overruled.
this,
doing
that,
committed
error,
In his
point
appellant
second
other,
there will be
duplicity,
no
argues that fundamental error occurred
a verdict of guilty;
and need be but
when
in its charge
trial court included
may
set out
pleader
separate
guilt-innocence
unproven
ways
counts each one of the
various
Code,
V.T.C.A.,
of murder under
Penal
Sec-
might
which it is claimed the offense
19.02(a)(1).
tion
have
Because we
found
committed, in
have
which event also
been
support
the evidence sufficient to
a convic-
guilty.”
a verdict
there need bе but
19.02(a)(1)
point
tion for
was found of mur- der, charged in the indictment.” The J., CLINTON, dissents, adhering to quotes judgment the jury verdict and then opinion original submission. following: continues with the TEAGUE, Judge, dissenting. considered, ordered, “It is therefore I majority panel Because find that the adjudged by the Court that the De- opinion in cause correctly held guilty fendant of the offense of a facts of this cause will not a con- felony, murder as in the first pursuant viction for provi- to the and third the indict- V.T.C.A., Code, 19.02(a)(3), sions of Penal ...” ment. and the majority this Court refuses to language. The sentence contains similar decision, adhere respectfully to that dis- sent. appellant’s trial, time of At the Article
42.01, V.A.C.C.P., provided in pertinent I also majority dissent of this part: relying Court terribly this Court’s opinion reasoned of Murphy v. ‘judgment’ 1. A
“Sec. is the declaration S.W.2d 116 record, of the court entered of show- ing: in this record сause reflects that
Benny Aguirre, appellant,
by
was convicted
of the offense of
“as
verdict;
8. The
charged in
the indictment.” The
a rea-
beyond
instructed
it found
conviction,
In the case of a
that it
appellant “intentionally
sonable
doubt
by
is considered
the court
knowingly
the death
Eliza-
cause[d]
adjudged
defendant is
guilty
Aguirre, (who
beth
was then thirteen
the offense as
jury;
found
...”
age
daugh-
and was
natural
42.02, V.A.C.C.P., provided:
Article
ter), by shooting
gun,”
her with a
see V.T.
“A ‘sentence’ is the
order
the court C.A.,
Code,
Penal
Section
ifor
in a
or misdemeanor case
made
they
“intentionally
found that he did
presence
defendant,
of the
... and
knowingly attempt to commit and did com-
record, pronouncing
entered of
judg-
mischief,
mit a
to-wit: criminal
ment,
ordering
the same to be сar-
and in
course of
furtherance of the
ried into execution in the
pre-
manner
said
then
did
and there
scribed
law.”
commit and did commit an act which was
life,
clearly dangerous to human
to wit:
Although not a model of draftsmanship,
shooting
gun
dwelling
into
occupied
we
language
find
set out in the
which said
caused the
of Eliza-
death
judgment and
properly
sentence
describes
Aguirre,”
beth
see
findings
jury.
suggested
It is
19.02(a)(3),supra,
mur-
future,
situation,
that in the
in a similar
statute,
der
guilty
find him
it could
language merely set out that the accused
*8
offense of
jury’s
murder. Because the
ver-
“is
of
guilty
the offense of murder.”
specify
dict does
theory
under which
guilty,
was found
I am unable to
Moreover,
found
even we
that the
theory
state “which
re-
judgment and
improperly
sentence
re
prevailed in
sponsibility
jury
rоom.”
flected
findings
jury,
proper
of the
remedy would
of appel
not be reversal
submission,
original
majority
a
of a
case,
lant’s
judg
but
panel
reformation
conviction
this Court ordered the
44.24(b),
ment and
reversed,
holding
sentence. Article
V.A. of appellant
after
that
C.C.P.
opted
felony-mur-
jury
“...
for the
[I]f
theory alleged
remaining
der
in the second
was struck
shots fired from the shot-
indictment,
paragraph of the
its verdict
gun. The record
completely
is not
clear
could not be sustained for the reasons set whether it was shot from the first
or
blast
State,
543,
forth Garrett v.
573 S.W.2d
shot from the second blast
that caused
Kuykendall
See
v. Elizabeth’s death.
State,
(Tex.Cr.
609 S.W.2d
794-795
expert
The State’s
witness on what it
App.1980).”
repair
would cost to
damages appellant
pause
I
out that whеre there is
inflicted on the residence testified that the
but one offense
in two counts of
repair
total
cost to the residence
inwas
indictment,
permissible
an
which is
plead-
asked,
expert
excess of
$600.
was not
21.24,
ing,
V.A.C.C.P.,
see Art.
and the
state,
nor did he
it
what
would cost to
sup-
evidence is found to be sufficient to
repair
damage
that
was inflicted
port
finding
guilt
theory,
under either
front door area of the residence versus
general
guilt may
applied
verdict of
be
it
repair
damage
what would cost to
theory,
necessary
either
and it is not
for
that was inflicted to the rear door
area
jury
designate
theory
which
residence,
simply
or vice
He
versa.
State,
guilty.
found the defendant
Bailey
gave
repair
figure
a total
cost
for the neс-
(Tex.Cr.App.1976);
have based its verdict the supra, alleging instruction Sec. the incorporated provisions the of Section predicate aggravated offense was assault. 19.02(a)(3),supra, felony the murder stat- appeal, the defendant raised the issue ute, I must next decide whether the facts doctrine, felony-murder “whether as support felony are sufficient to murder 19.02(a)(3),supra, codified in Sec. should they count of the indictment. I find that apply precedent felony where is an are insufficient. assault and is inherent the homicide.” A State, panel of this Court found that the Before a violation of Section occur, allegations, its supra, may attempting to use the it must be established act, very aggravated assault, that the defendant attempt- “committed or which caused ed to commit a other voluntary than felony as the which boosted involuntary manslaughter, or and in the catego- homicide itself into the murder course of and in furtherance of the commis- ry, and held that allow this would “[t]o sion or felony ... of that he com- every make murder out of as- attempted mitted or to commit an act clear- sault that results in a death. It would ly dangerous to human life that caused the proving relieve the State of the burden of death of an individual.” intentionally knowingly or caused death in most murder cases because murder is alleged offense,
At the time of the
usually the
felony
offense of
result of some form of as-
criminal mischief could be
person,
committed if
panel quoted
following,
without the effec-
sault.” The
owner, intentionally
tive consent of the
or which I find states the common law rule of
knowingly damaged tangible property of
felony murder,
opinion
from the
then
the owner and the
pecuniary
amount of the
Chief Justice Cardozo had authored for the
loss
$10,-
or more
$200
but less than
People
Appeals,
New York
Court
see
Y.T.C.A.,
000. See
Section 28.- Moran,
(1927):
246 N.Y.
The facts set out in Any supra, homicide. other result reflect that the defendant in- went store, got side of case would allow circumvention of the a Ben Franklin into an clerk, pulled gun, statutory altercation in- limits of the murder stat- with a tending clerk, legislative prohibition against to scare the shot the ute ... The but instead, 19.02(a)(3) resting prosecution clerk as a result of which the clerk Sec. necessarily in- manslaughter died.2 The State that the defend- prohibition resting statute, ant violated against cludes a such see Though opinion not stated in the fendant. Meeks “he defend- testified that [the appeal pistol] the record of reflects in that cause took it out and he defend- ant] ant] [the [the Meeks, that five curred, pointed pistol] the State’s witness Adrian who was [then] [the shot— old when the defendant’s trial oc- shot the white man ... and [the deceased] [then he, defendant,] shooting tеstified that when oc- ran out the door [of standing directly (My emphasis.) curred he was behind the de- store]. *10 330 prosecution Garrett, statutorily in- panel supra, decision of offenses gains strength by voluntary cludable in no this Court’s later deci- involuntary] [or Easter, parte sion of Ex 719
manslaughter. To hold to
contrary
(Tex.Cr.App.1981),in which this Court ex-
render
meaningless
would
the statute
pressly
alleging
held that “an indictment
(My Emphasis.)
nil.”
major-
its effect
felony
fundamentally
murder was not
de-
ity panel opinion thereafter held that the
susceptible
challenge
fective so as to be
support
allega-
facts of the case did not
post-conviction
for the first time in a
writ
indictment,
tions of the
and ordered the
corpus
expressly
of habeas
It
...”
also
panel
indictment dismissed. I find that thе
not,
“[petitioner may
held that
in this ha-
of Garrett v.
opinion
supra,
errone-
corpus proceeding, collaterally
beas
attack
19.02(a)(3),
ously interpreted
supra.
Section
sufficiency
of the evidence to
overrule expressly
We should
Beyond
the conviction
these
ex-
...”
two
State, supra.
press holdings,
might
whatever else
have
19.02(a)(3),supra,
pro-
expressly
Section
Easter,
parte
Ex
stated in
supra,
been
is
vides that
the offense of
dicta and should not be considered as bind-
underlying
ing precedent.
cannot be sustained
felo-
ny
involuntary manslaugh-
is
out,
previously pointed
As
could
It, however,
ter.
does not make reference
have inferred from the facts of this case
Legis-
to lesser included offenses. Had the
criminally respоnsible
lature wanted to exclude lesser included
causing
daughter,
for
the death of his
be-
offenses, in addition to the offenses of vol-
6.04(b)(1),
person
cause under Section
“[a]
untary
involuntary manslaughter,
criminally responsible
is
a re-
It, however,
easily
only
could have
so stated.
sult if the
difference between what
(Elizabeth’s
actually
untimely
occurred
did
so state and it is not the function of
death)
desired,
[appellant]
and what
con-
Garrett,
legislatively.
this Court to act
templated,
(intending
or risked
commit
supra, erroneously
any
held that
lesser in-
mischief,
the offense of
voluntary manslaugh-
cludable offenses of
when he twice fired his
at the
ter,
implicitly
any
lesser
also
included
residence, knowing that one or more indi-
manslaughter,
offenses
involuntary
inside,
an utter
viduals were
which showed
They
were excluded from the statute.
are
life)
disregard for human
was that a differ-
not.
(murder Elizabeth)
ent offense
was com-
Garrett,
I also
supra,
find that
errone- mitted.”
ously held
means “an
that the word “act”
6.04(b)(1),
patterned
supra,
Section
is
af
“act”,
indivisible transaction.” The word
penal
former
code Article
ter
however,
Code,
is
in the Penal
see
defined
provided:
intending to commit a felo
“One
Y.T.C.A.,
1.07(a)(1), mean, not an
Section
ny
preparing
for or
and who
transaction, but, instead, “a
indivisible
bod-
executing
through mistake
the same shall
movement,
ily
voluntary or
whether
invol-
which, if
or accident do another act
volun
untary,
speech.”
includes
Under
done,
felony,
tarily
would be a
shall receive
facts in
supra,
the defendant's
punishment
actu
affixed to
pointing
pistol
clerk consti-
store
State, ally commited.” See Richards v.
assault,
tuted the offense of
(Tex.Cr.App.
Tex.Cr.R.
I also find that this Court’s decision of
question
answer this
in the affirmative re-
Murphy v.
(Tex.Cr.
barred from on the third
paragraph of the indictment. *12 COLLIER, Relator,
Robert Jack POE, Judge,
Honorable Ted 228th County,
District Court of Harris
Respondent.
No. 69739. Texas, Appeals
Court of Criminal
En Banc.
May