Lawson v. State

LAWSON, Appellant, Scott Mattison

The STATE of Texas.

No. 1767-00. Daffern, Amarillo, C.R. Appellant. Court of Appeals Criminal of Texas. DA, English, Hereford, Jim Asst. Mat- Paul, Austin, Atty., thew State’s for State.

Dec.

OPINION HERVEY, J., delivered the KELLER, P.J., Court which WOMACK, KEASLER, HOLCOMB, and COCHRAN, J.J., joined.

Appellant pur- was convicted murder suant to the murder doctrine em- Code, bodied Texas Penal Section provides That that a guilty if he causes the death of another during felony, other than manslaughter. The instant alleged indictment killed the victim an “in- committing while tentional knowing” aggravated assault of that individual.

Appellant appeal claimed on direct he could not for murder prosecuted 19.02(b)(3) the ag Section because gravated assault was the same act that Appeals, killed the victim. The Court of appeal again on direct on remand from light Court for reconsideration State, rejected our decision in Johnson State, 26 this claim. Lawson v. (Tex.App. pet. 921-22 — Amarillo State, 4 granted); see also Johnson v. (Tex.Cr.App.1999). S.W.3d 254 We exer discretionary authority cised our to review this decision. we limited this Johnson

Court’s decision in Garrett v. a showing held that “there must be felonious criminal conduct other than the support the homicide” to mur- conviction under 397 J., dissenting Johnson, 258; MEYERS, opinion filed a 4 der S.W.3d at rule. See JOHNSON, J.J., (Tex. State, in which and 543, PRICE 573 546 Garrett v. S.W.2d J., JOHNSON, dissenting filed a 1978). joined. Thus, Cr.App. op.] [panel Johnson MEYERS, J., joined. in which opinion to “hereinafter [stand] restricted Garrett that a conviction proposition for the J., concurring COCHRAN, filed under KELLER, PJ., which, opinion 19.02(b)(3), underly lie will not when the JJ„ HOLCOMB, joined. KEASLER and in ing felony manslaughter is a lesser I join majority opinion. write manslaughter.” of cluded offense See an additional ratio- separately provide Johnson, at 258. We follow 4 S.W.3d will for our and review nale decision Johnson. purpose historical hopes assisting the bench and of Johnson, the issue here is

Applying of analyzing bar knowing” ag- “intentional and whether an doctrine. is a lesser of- gravated assault included manslaughter. Manslaughter

fense is of developed The murder rule recklessly defined as an individu- that a early person It holds common law. 19.04, al’s Penal death. See Section unintended conduct causes an whose statutory underlying felony Code. The with attempted com- during is charged an “inten- guilty is murder.1 mission Thus, knowing” aggravated points gun tional assault. if a at the bank robber 22.01(a)(1) 22.02(a)(1), “accidentally” discharg- gun See Sections & Tex- teller es, teller, then the Code, killing the bank (defining bank Penal assault). murder. It matters not guilty robber An “intentional whether the robber intended shoot or knowing” aggravated assault not a less- he to kill.2 Train rob- whether intended er manslaughter, included offense of nor is bers who a brakeman serve as force statutorily manslaughter. includable in express them to the their shield and take 258; Garrett, 4 See S.W.3d at 573 passenger, car are murder when a guilty of hoping robbery, shoots and kills foil judgment Appeals of the Court of law, common one brakeman.3 Under is, therefore, affirmed. guilty found who commits arson died

the murder of a who inside COCHRAN, J., even by fighting though filed a house or the fire concurring KELLER, P.J., intend to cause in which the arsonist did not Holcomb, J.J., joined. personal by his act.4 KEASLER and accidental, tim, Hall, though still Principles even it is an un 1. See General of Criminal ed.1960); killing”). (2d lawful seq. Law & 129 et Perkins (3d ed.1982); Boyce, Law 61-72 La- Criminal 621, 633, State, 41 Tex.Crim. 57 3. Keaton v. (2d Law 7.5 Fave & Criminal 1125, (1900). S.W. 1129 Crum, ed.1986); Causal Relations and U.L.Q. Rule, Felony Wash. Murder 1952 Comm., Ky. id.(citing Reddick (1895) (one 1020, L.Rptr. who 33 S.W. 416 358, See, e.g., guilty Davis may be found commits arson denied, (Tex.Crim.App.), burning building)). cert. 449 U.S. of woman who died in (1980) ("Where prin 101 S.Ct. 66 L.Ed.2d court that common law This reaffirmed robbery ciple in Murphy intends to commit a defendant so, (defendant who shooting (Tex.Crim.App.1983) commit actually does of the vic contrast, the offense of all applied to felonies or those crimes de is never for obvious rea- as malum nominated in se.8 Because vir is, Involuntary sons.5 by tually crimes in century all 18th and 19th definition, homicide, an accidental commit- felonies, England were classified as ted with involuntary recklessness. If man- intolerably became overbroad and could slaughter felony form the of a basis consequences. English harsh in its As one prosecution, every each and such judge it in if put 1887: “it was a said that recklessly caused death would constitute it, man shot a with fowl intent to steal murder. felony involuntary The of man, accidentally a killed he to be was up by would be swallowed murder, guilty accounted of because felony Voluntary murder rule. felony. act in the was done commission of a slaughter is also always exempt from the doubt, however, very much whether this felony murder it illogi- doctrine because is is law ...”9 really the assign cal to a punishment lesser for an had English it ever been law that a who actor commits a in the “heat per- chicken thief who accidentally killed passion,” of but then turn around and son in course of fowl stealing is the crime bump up back murder under to murder, guilty quickly changed. of law murder doctrine.6 The law rule common was narrowed to principle behind law the common this: resulting a homicide from you murder rule is this: em When dangerous way, committed violent upon inherently bark an crimi dangerous is murder.10 you project, responsible nal are for the States, legisla- deadly consequences courts that result from that the United (and originally felonious conduct.7 The doctrine original tures have narrowed the proceeds [felony ted arson to collect insurance could prevent is to such murder] rule homicide], be convicted of murder died as a [as when the henhouse accidents fire). setting of killing result should make accidental with firearms murder, killing accidental not in the effort (if felony 5. LaFave 7.5(g) See & mur- steal; object stealing, prevent while if its is to homicides, applied der doctrine to reckless hang every it would do better to one thief in "manslaughter sepa- has ceased to exist as a lot.” Id. by thousand crime; manslaughters up all rate an es- ride felony-murders”). calator become Whitmarch, Regina 10.See Just.P. (1898) ("If by perpetration a man of a ("It Boyce 6. Perkins & See at 69 would be brings about a fel felonious act the death of recognize passion, of futile sudden heat murder, guilty unless low creature he is of engendered by great provocation, as suffi- committed when he the felonious act ciently mitigating voluntary to reduce a homi- resulting was so chance therefrom of manslaughter, cide if in the next breath it have remote that no reasonable man would dangerous added that he taken it consideration. In that case into resulting and hence homicide manslaugh guilty not but murder”). attempt such must be ter”); Jarmain, 2 All Rex. E.R. Blackstone, (1945) (stating felony *200-201. "he Commentaries murder rule as: who violent measures in the uses Perkins at 62. See of a does so at and is his own risk guilty murder if those measures violent Serne, Regina 16 Cox C.C. 312-13 result, inadvertently, even in the death (1887). The discussion in Seme is based victim”). hypothetical posed by the henhouse homicide England statutorily Justice Holmes in The Common Law 58 abolished the (1881). object "If Justice Holmes stated: murder rule the Homicide Act of overbroad) excepting (always murder doctrine in vari- ic course), or more ways, including ous one defendant manslaughter, of following:11 “clearly an act must commit that is simply life.” gerous to human Instead

1) limiting its certain which, in specific enumerating felonies enumerated felonies which inher- are abstract, Legis- dangerous;12 usually dangerous, the ently are 2) prove that the state required lature by imposing stricter criteria for de- actor, cir- specific specific act these

termining whether the fatal creat- life;13 cumstances, human ed a foreseeable risk to did some act that was 3) preserves the dangerous. This limitation by imposing a stricter standard for may elapse original justification

the time that between the felony’s and the victim’s responsible criminally rule —a is death;14 or consequences dangerous for the his and 4) by requiring protecting felo- violent conduct—while criminal independent the

ny be from conduct prosecution mur- against the for defendant causes the death.15 der for which oc- an unforeseeable death curs a during the commission of Legislature The Texas chose to narrow abstract, in the but not in which is violent law murder the common rule set Second, particular Legisla- case.16 19.02(b)(3) out Penal proximate cause rela- First, ture narrowed in two ways. Code distinct the stat- that, requires specif- tionship ute in the murder rule. Not regardless (dis generally § § generally, 11. See LaFave & Scott 7.5 at 622. 14. See LaFave & 7.5 causal, temporal, cussing required well as See, 210.2(l)(b) e.g., Model Penal Code underlying felony between and connection (criminal homicide constitutes murder when see, death); person’s e.g., Doane v. Common recklessly "it is committed under circum- wealth, (1977) Va. S.E.2d 797 manifesting stances extreme indifference to (defendant stop pe sign killed who ran life”; applying pre- the value of human driving day he had stolen destrian while car sumption of recklessness and indifference before not be could convicted mur rape, robbery, when actor commits deviate der). force, sexual intercourse force or threat of arson, burglary, kidnapping, or es- felonious Wilson, People 1 Cal.3d cape). (1969) Cal.Rptr. (stating 462 P.2d 22 that rule, under murder it is essential that proximate 13. This cause limitation focuses on engaged felony, other the actor was in some whether the conduct and circumstances in ingredient to be so "as not an distinct particular case created a foreseeable risk to itself). homicide” See, e.g., life. Wade v. 581 P.2d human (to (Okla.Crim.App.1978) invoke example, suppose 16. For the actor is underly doctrine it is sufficient committing robbery. He hands the bank ing felony "potentially dangerous light money saying, a note bank teller "Your surrounding the facts circumstances both gun weapon, your has no life.” He or other homicide”); felony and Jenkins only threatening note. The bank teller 1967) (when (Del. underly 230 A.2d 262 dies of a attack. keels over and heart Rob- building, ing felony burglary was of a bery dangerous in the is a violent applies only when actor’s con Here, abstract, in this but not instance. dangerous "foreseeably duct was to human "clearly actor did not commit act that depends "upon life” and whether someone life,” dangerous pre- yet to human his act of reasonably present expected to be threatening senting may well have building, note other circumstances of case”); and death. caused teller’s heart attack “[hjomicide law, must the defendant commit an act common is murder if the life, clearly that is dangerous to human perpetration results or at- specific must also be that act which causes tempted perpetration inherently of an the victim’s death. prove The State must gerous felony.”21 Aggravated assault act, that but the dangerous the de- surely an inherently dangerous felony. ceased would not have died.17 The death if a Even assault were not inherent- must probable be the natural and conse- ly dangerous specific spe- in a case quence of the dangerous defendant’s con- circumstances, cific Legislature the Texas duct.18 restricted the of the doctrine to

Despite explicit legislative these two lim- particular those instances which the ac- itations, another, imposed this Court non- tor committed an act dangerous to statutory, restriction on the felony human life which caused the death of a rule. This extra “merg- limitation was the person. er” announced in The concern in every Garrett was that

State,19which held that the actor’s conduct aggravated assault that resulted in a death constituting underlying felony must be subject prosecution would then be as a separate “clearly and distinct from the enough, murder. True if the actor commits dangerous” act person’s which causes the clearly an act dangerous to human life Garrett, death. In the defendant initiated person’s which causes the death. That is clerk, a fight pulled with a store a gun to precisely felony the rationale of the mur- him, off,” gun killing scare and the “went involuntary der rule. But unlike the clerk. charged Garrett was with felo- slaughter, every aggravated not murder, ny with the underlying felony be- in manslaughter results death. could ing aggravated assault. This Court held underlying felony felony constitute the in a showing “[t]here must be a of feloni- every single manslaughter then ous criminal conduct other than the assault automatically upped case would to the be felo- homicide.”20 There is not and ny manslaughter never was murder. The of any requirement such in section 19.02(b)(3), nor was there itself would That any such re- be obviated. is neither quirement at common law. modern logical legal.22 every Under nor But not instance requirement ap- 17. That should prohibit not be over set out in Gatrett would conviction plied, however. It does not mean that the felony murder unless the defendant had any death must result from intentional dan- underlying felony plus committed an an addi- conduct, was, gerous merely that the act itself (other by tional act than the conduct covered estimation, by any clearly danger- reasonable felony) that was culpable supplied by ous. mens rea is gerous Eight Id. at 256. human life. underlying felony commission of the with its explicitly rejected members this Court such of intention, accompanying mental state of Instead, a broad rule in Johnson. Id. knowledge, or recklessness. felony conviction Court held that a murder underlying felony of could be based 7.5(b) generally, LaFave and Scott proof a child without of addi- (discussing proximate legal cause limita- dangerous beyond tional act covered rule). felony tion on murder underlying felony. at Id. (Tex.Crim.App.1978). 19. 573 S.W.2d 543 Boyce, 21. Perkins & at 70. Garrett, 546. This is called "merger thoroughly precisely It is doctrine" and is dis- for this reason that the Texas Legislature explicitly exempted felony cussed in Johnson v. (Tex.Crim.App.1999). felony 255-58 the definition "merger this Court noted that the doctrine” murder under section with, into virtual child, and eroded disagreed injury to a The best mischief, by this Court.24 in death. Not nonexistence etc. ends criminal felony murder analysis of these offenses is every instance historical Garrett, conclu- clearly dangerous critique of of an act that is result merger doc- every instance of murder human life. Not sion automatically statutory law part these offenses would of Texas trine is not (retired) of these On- Presiding Judge murder. Use in upped contained Rodriguez of a murder relatively offenses as the basis recent ion’s State,25 logical historical pose discussing do not the same prosecution After murder that involun- law legal problem merger the common basis of Texas, recog- rule, been always adoption has and evolution tary its nized, murder in at common law and statutory both definition statutes, Code, posing. the “troublesome” 1974 Penal subsequent decision in its limit Certainly legitimate way one in- “recogniz[ed] its erosion as this Court law overbroad old common turf,” Judge legislative Onion trusion on require the commission of some rule is to defini- the 1994 Penal Code concluded that except manslaughter, felony, any felony tion dangerous act plus an additional violent 19.02(b)(3) and re- statutorily superseded However, the death.23 which causes judicially created jected Legislature did not choose He stated: Garrett. chose to limit the mur- method. It constitutional within its legislature Our alternate restrictions. It der rule two felony mur- remains free to abolish role power authority to do so. had both effect to or limit its der might power, have the but This Court the role of felonies. It is not other authority, does not have the to create oth- judicially limit or to abolish or courts er, felo- nonstatutory limitations statutory constitutionally valid expand a in section ny murder statute set out by legisla- defined ture.26 today? the law in Texas Is Garrett felony murder The offense of merger agree. doc- judicially

Does the created 19.02(b)(3) of the by section in murder is defined apply trine still defined or It should not be say. But Penal Code. majority cases? The declines judicially other still limited Garrett merger if the doctrine does limited, rule. exist, merger created distinguished, it has been 847, State, arson); 849 (discussing 19 S.W.3d 7.5(g)(2) Homan 23. LaFave & See aggravated "merger” (Tex.Crim.App.2000) (noting in context that Garrett doctrine n. 4 cases). collecting assault and only manslaughter and lesser in applies manslaughter). cluded offenses Easter, See, e.g., parte Ex 615 S.W.2d 719 24. (Garrett merg (Tex.Crim.App.) distinguished; 1997, (Tex.App. 25. S.W.2d 342 953 —Austin apply er rule does not 'd) merger (stating murder pet. ref 943, denied, child), 454 U.S. cert. Texas statute does not exist under doctrine (1981); Aguirre 70 L.Ed.2d 252 S.Ct. deadly holding that conduct 1982) State, (Tex.Crim.App. S.W.2d 320 convic may provide basis for murder (Garrett distinguished; merger rule does not tion). State, mischief); Murphy v. apply to criminal 1983) (Garrett (Tex.Crim.App. 665 S.W.2d apply Id. at 354. merger not distinguished; rule does MEYERS, J., Garrett, opinion, filed a dissenting at 545 n. S.W.2d 546. We JOHNSON, J.J., in part: which PRICE and stated in relevant joined. [a]ny in other result this case would allow circumvention of the lim- statutory majority appel The holds that because its of the statute.... “intentionally lant was indicted with voluntary Most manslaughter offenses knowingly” assault, committing aggravated are initiated as assaults. culpable mental state for commit predicated a on ting manslaughter “recklessly,” appel underlying aggravated lant was not indicted for an offense that is statutory scope restriction on the a lesser included offense of manslaughter. prohibits doctrine that basing a State, (Tex. Lawson v. 64 S.W.3d at 397 prosecution voluntary on (hereinafter Crim.App.2001) cited as Ma slaughter regularly could be circumvent- jority Op.). Only years two ago, eight prohibition ed. The legislative against joined members of this opinion Court in 19.02(a)(3) resting Sec. [now which we held that while Texas does not 19.02(b)(3) prosecution voluntary on ] general have a manslaughter necessarily includes a pro- predicated murder conviction cannot be on against resting prosecu- hibition such a conviction for or an of statutorily tion on offenses includable statutorily fense that is includable man voluntary manslaughter. To hold to the slaughter. Johnson v. contrary would render the statute mean- 258 (Tex.Crim.App.1999). Johnson there ingless and its effect nil. underlying holding affirmed the of Gar Garrett, By at permitting (Tex. rett v. 573 S.W.2d 543 Crim. predicat- a felony murder conviction to be App.1978) explicitly but limited Garrett to statutorily ed on an offense that includa- Johnson, 4 its facts. in manslaughter, majority ble contra- hand, Garrett is factually identical to the case majority dicts itself. On the one before us. Garrett was effectively overrules Garrett and eviscer- Johnson; indicted for “intentionally knowingly” ates our recent on the hand, committing aggravated assault and authority we other it cites no other than held that the Majority Op. assault could not form the Garrett and Johnson.1 See basis of his murder conviction. at 397. appellant's

1. When jeopardy prevent it affirmed conviction on double would the retrial of Court, remand from this appellant involuntary manslaughter the Amarillo Court an for Appeals acknowledged aggravated gaining that appellant as where the had succeeded in may statutorily arguing sault in the of includable a new trial that the trial court after State, manslaughter. charging jury fense of Lawson v. erred in the on murder and However, Neff, aggravated on relied the assault. 629 S.W.2d despite fact that had been indicted for an is instructive its factual dissimi Neff larities, aggravated controlling. intentional assault and on a deci it is not addressed Neff only appellant’s aggravated sion in 629 S.W.2d whether trial for Neff (Tex.Crim.App.1982) involuntary to hold that the assault assault barred man retrial in this slaughter; voluntary instance was not a lesser included the court did not address Lawson, addition, manslaughter. manslaughter. proof ag offense of 26 S.W.3d In that an at 922. gravated intentionally The court’s reliance on was not assault was committed Neff only nearly knowingly novel—the first instance in encompasses proof Neff’s twenty years of existence—it was also recklessly. mis offense was committed See Little placed. question (Tex.Crim.App. addressed the Neff 1983). prohibition against whether the constitutional in codified Sec. addition, per- murder majority’s opinion 19.02(b)(3), precedent fel- when the applied circumvention precisely type mits on against in Garrett an ony we cautioned very act which every aggravated and the same person, murder out same “make[s] Gar- that results death.” See homicide.” assault caused the rett, Penal Code at 545. culpa- majority focuses on Because the 19.02(b)(3) provides § that an offense is that, states, recognize it fails to ble mental the death of if the actor causes in- very well be may an assault although an act by committing another very essence of knowing, the tentional or com- human life in the course of gerous to death resulted that manslaughter. mitting other than intentional Proving from recklessness. According majority, to the the State does not as to the assault mental state prohibition legislative circumvent this now as to disprove recklessness com- by simply alleging that the defendant It individual. of the assaulted knowing aggra- mitted an intentional and a situation easy imagine manslaughter. than vated assault rather individual, to assault an assailant intended acknowledge I respectfully While death, but “con- no desire to cause with judicial I am pedigree,2 doctrine’s a substantial sciously disregarded] unwilling jettison legislature’s ex- death, Tex. Pen.Code unjustifiable risk” of relying on man- plicit against directive 6.03(c), the death of and in fact caused to convict defendant of slaughter recklessly. Determining the individual additionally unwilling I am murder. has no bear- mental state for one offense uproot precedent this Court’s Johnson state for determining the mental ing on I and Garrett. dissent. -the other. JOHNSON, J., dissenting opinion filed a 37.09(2) point, art. More to the MEYERS, joins. in which J. pro- Procedure Texas Code of Criminal join Judge Meyers’s dissent. included offense is a lesser “[a]n vides that majority argues that because the offense if ... it differs from in the instant alleged state respect less charged only “intentionally case was committed the same injury or risk of serious “recklessly,” but not and be- knowingly,” establish its commis- person ... suffices to culpable cause includes the 37.09(2), aggravated as- art. sion.” Under “recklessly,” aggravat- mental state of offense of is a lesser-included sault in this is not a lesser- ed assault case is a difference slaughter because thus, it manslaughter; included offense of injury to the injury or risk of less serious inap- doctrine is merger concludes proves man- person; when the state same Ante, holding This plicable here. necessarily prove it will also slaughter, ignores both statutes and case law. assault, being a physical injury aggravated Therefore, injury than death. on less serious majority bases its decision

While case is a lesser- state, in the instant for did not the assault ground mental review manslaughter, pur- “The court of included offense specifically raise that issue: doctrine,” a “merger felony- suant to so-called appeals holding erred in Lawson, (Tex. 26 S.W.3d at 922. at 398 Lawson v. (Cochran, concurring); Crim.App.2001) J. prohibited. murder is conviction for MOUSSAZADEH, (Tex. Ex Parte Max

Johnson v. Applicant. ma Crim.App.1999) (eight judges joining concurring judg in the jority opinion, one 74,185. No. 19.02(b)(3). ment); § Tex. Pen.Code of Texas. Appeals of Criminal Court effectively abolishes the Today’s decision mandated stat- merger doctrine that is Dec. 19.02(b)(3), ute, delineat- § and that we see ago in only years clarified two ed and 6, 2002. Rehearing Denied Feb. Johnson, majority supra.1 Under always can

opinion, merger doctrine the state did in simply by doing as

avoided charg- charge

this case: aggravated

ing “recklessly”

but omit term way, In this charge. charge always will be able state the evidence even when or a only manslaughter lesser-in-

shows noted manslaughter. As

cluded offense of

above, overrules effectively judicially legisla- nullifies the

supra, and 19.02(b)(3).

tive mandate of overrules, opinion sub today’s

Because old,

silentio, years only two a decision it, follow and because purporting to

while concerning legislative mandates ignores statutory and the merger

both the doctrine offense, I dis- of lesser-included

definition

sent. Thus, asks, hereinafter section concurring "Is Garrett

1. The judicially today? proposition creat- that a convic- Does the law in stands apply in Texas ed doctrine still felony tion for J., Ante, (Cochran, at 401 cases?” 19.02(b)(3), will not lie when However, specifically concurring). we an- a lesser included felony is questions these swered holding con- manslaughter. This offense of did not create a at 258: "We hold Garrett meaning of the plain sistent with doc- general 'merger in Texas. The doctrine’ provision.” consistent with exists to the extent trine

Case Details

Case Name: Lawson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 5, 2001

Citation: 64 S.W.3d 396

Docket Number: 1767-00

Court Abbreviation: Tex. Crim. App.