OPINION
delivered the opinion of the Court,
Appellant was convicted of murder and the jury assessed punishment at confinement for life. The Court of Appeals for the Seventh Judicial District affirmed appellant’s conviction and sentence.
Johnson v. State,
No. 07-97-0471,
Appellant was indicted for felony murder. The indictment alleged appellant committed the felony offense of Injury to a Child “and while in the course of and furtherance of commission of said offense, did then and there commit an act clearly dangerous to human life, to-wit: hitting [the victim] with a deadly weapon, to-wit: a blunt object....”
1
On direct appeal,
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appellant argued that the • acts allegedly forming the offense of injury to a child were the same аcts relied upon by the State to prove appellant’s commission of “an act clearly dangerous to human life,” to-wit, hitting the deceased with a blunt object. Appellant contended the act constituting the underlying felony and the act clearly dangerous to human life merged, and thus could not support a conviction for felony murder, relying on
Garrett v. State,
The State also says appellant’s argument was rejected in Easter. The State further contends that Garrett is flawed and should be overruled, but to the extent it retains any precedential authority, it ought to be limited to its facts. Finally, the State reasons that a plain reading of the felony murder statute requires this Court to find no improper merger in this case.
Texas Penal Cоde section 19.02(b)(3), the felony murder provision, provides:
A person commits an offense 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 сommission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
The felony murder rule dispenses with the necessity of proving mens rea accompanying the homicide itself; the underlying felony supplies the culpable mental state.
Garrett,
Despite the plain language, we have interpreted section 19.02(b)(3) as exempting from the felony murder rule not only manslaughter, but also lesser included offenses of manslaughter. Garrett, supra. In Garrett, the defendant became involved in an altercation with a store clerk. The defendant claimed he pulled his gun in an attempt to sсare the clerk. Id. at 544-45. The gun went off and killed the clerk, although the defendant maintained he had not intended to fire. The defendant was charged with felony murder, the underlying felony being aggravated assault on the deceased. The question presented was whethеr the felony murder doctrine as embodied in section 19.02(b)(3), applies where the underlying felony is an assault that is inherent in the felony. We said it does not, emphasizing that to hold otherwise would render every aggravated assault resulting in death a felony murder, thereby reliеving the State of the burden of proving mental state in most murder cases since murder usually results from some form of assault. We stated, “There must be a showing of felonious criminal conduct other than the assault causing the homicide.” Id. at 546. We noted this view was consistent with sеction 19.02(b)(3), reasoning that the provision’s exclusion of manslaughter necessarily encompassed lesser offenses that were included in voluntary manslaughter.
The language used in
Garrett,
requiring a “showing of felonious criminal conduct other than the assault causing the homicide[,]” suggested wholesale adoption of what is known as the “merger doctrine.”
Id.
As explained by one court of appeals, “[wjhere there exists no general mens rea based upon proof of the commission of a separate felony which may be transferred from that crime to an independent homicide committed in the course thereof, the
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felony murder rule cannot apply because there is a 'merger’ of the two offenses.”
Richardson v. State,
But since Garrett, there has been little indication that the Court intended to apply such a broadly stated rule. Certainly, we retreated from so broad an application in Easter. In Easter, like the instant case, the underlying felony was injury to a child. The defendant complained in a post-conviction writ of habeas corpus that his conviction for felony murder could not stand because the acts allegedly constituting the underlying felony of injury to a child were the same acts as those allegedly causing the resulting death. We held Garrett inapplicable. While our reasons for so holding were not articulated exceedingly clearly, 2 we did point to one “cogent reason for holding that the rule enunciated in Garrett v. State, supra, is inapplicable hеre[,]” that being the fact that the crime of injury to a child is not a lesser included offense to murder: 3
[I]n Garrett, supra, the aggravated assault was a lesser included offense in the homicide; and, this court properly held that it could not be used to supply the necessary intent in the murder case.
However, the language carefully chosen in Garrett should not be given an overly broad meaning. Not every “as-saultive” offense, if alleged as an underlying felony, will merge with the homicide in a felony murder indictment.
Id. at 721.
Despite the suggestion in
Easter
that
Garrett
should be limited, the Court subsequently reaffirmed application of the merger rule as set out in
Garrett,
in its opinion on original submission in
Aguirre v. State,
After our opinion on original submission in
Aguirre,
but before our opinion on rehearing five years later, the Court delivered
Murphy v. State,
In the instant cause, the indictment alleges and the proof shows that appellant was engaged in felonious criminal conduct, namely, arson at thе time the deceased was killed. Therefore, as required in Garrett, there was a showing of felonious criminal conduct other than the assault which caused the homicide. Unlike Garrett, appellant’s act of arson in setting a habitation on fire and the resulting homicide of the victim were not one in the same. In this case, appellant attempted to set fire to a house in order to destroy it and collect insurance money, a property offense, and in the furtherance of such offense, the deceased was killed.
Id. It is not clear from the Court’s opinion what separate felonious act, apart from setting the fire, lead to the victim’s death. There is some suggestion that the distinction lies, not in the fact that there was a separate act, but in the fact that the underlying offense of arson was a property offense, as opposed to an offense against a person.
Five years after issuing its opinion оn original submission, the Court reversed itself on rehearing in
Aguirre,
holding the opinion on original submission untenable in light of
Murphy. Aguirre,
Focusing on the
type
of undеrlying offense rather than on whether or not the underlying offense is a separate
act,
is a departure from the broad language in
Garrett,
but remains somewhat consistent with
Garrett's,
statement that lesser included manslaughter offenses ought also be exempted from the felony murder rule. Although
Aguirre
(op on rehearing) and
Murphy
are not abundantly clear, one principle can be glеaned without question: the merger rule announced in
Garrett
does
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not apply as broadly as it was stated.
Aguirre
(on rehearing) and
Murphy
demonstrate this Court’s desire to limit
Garrett
to its facts. We now expressly say so and put an end to any confusion on this point. We disavow our overly broad statement in
Garrett
that in order to support a conviction under the felony murder provision, “[tjhere must be a showing of felonious criminal conduct other than the assault causing the homicide.”
Garrett,
If a felony murder may be predicated on the underlying aggravated assault, the statutory restriction on the scope of the doctrine that prohibits basing a felony murder prosecution on voluntary manslaughter could be regularly circumvented. The legislative prohibition against resting a Sec. 19.02(a)(3) [now, 19.02(b)(3) ] prosecution on voluntary manslaughter necessarily includes a prohibition against resting such a prosecution on offenses statutorily includable in voluntary manslaughter.
Garrett,
The offense of injury to a child is not a lesser included offense of manslaughter. The Court оf Appeals did not err in holding Garrett inapplicable to the facts of this case.
The judgment of the Court of Appeals is affirmed.
Notes
. The indictment alternatively alleged appellant committed the felony offense of Injury to a Child “and while in the course of and furtherance of commission of said offense, did *255 then and there commit an act clearly dangеrous to human life, to-wit: causing [the victim] to come into contact with a deadly weapon, to-wit: a blunt object....”
. The Court first observed that the identical claim had been rejected under the 1925 Penal Code in
Hilliard v. State,
. It is worth noting that Garrett did not speak in terms of the aggravated assault as a lesser included offense of the homicide, but rather as a lesser included offense of manslaughter. Garrett did, of course, recite approval of the merger doctrine which looks to see if the act constituting the underlying felony and the act resulting in the homicide were the same. But this is not a query as to whether the underlying offense is a lesser included of murder. Garrett later addressed the distinct notion that the underlying offense was lesser included in the offense of manslaughter, which is exempted from the felony murder provision.
.The Court’s discussion as to why
Easter
did not present a problem to the rule set out in
Garrett,
is less than clear. We first said that
Easter
held the "lesson of Garrett ... inapplicable to a felony murder
indictment
for causing the death of a child when the underlying felony alleged is injury to a child and concluded the indictment was not fundamentally defective.”
Aguirre,