Rodriguez v. State

This appeal is taken from a conviction for felony murder. Tex. Penal Code Ann. § 19.02(b)(3) (West 1994). After finding appellant, Albert Ray Rodriguez, guilty, the jury assessed his punishment at fifty years’ imprisonment and a fine of $4,000.

POINT OF ERROR

In his sole point of error, appellant contends that the trial court erred in overruling the objection to the court’s jury charge regarding the offense of felony murder because the merger doctrine barred his conviction for felony murder.

FACTS

The sufficiency of the evidence to sustain the conviction is not challenged. A brief recitation of the facts will place the point of error in proper perspective. The victim, James Beaty, was shot and killed while riding as a passenger in a red Pontiac Firebird on Francisco Street in Austin on the night of April 21, 1995. It was two days before Beaty’s nineteenth birthday. Michelle Esquivel, Beaty’s girlfriend, who was driving, was shot in the right thigh. Joseph Michael Gonzales, a passenger in the rear seat, escaped injury.

Appellant testified that he had purchased a .45 caliber handgun “off the street” the night before the shooting and had a friend purchase ammunition for the weapon on Friday morning, April 21st. That night the 17-year old appellant was in the back yard of his parent’s home talking on a cordless telephone when he saw a red Pontiac Firebird drive past. He retrieved the pistol which he had concealed under a car and walked to the front of the house. There was testimony that the Firebird had driven past the house once or twice. When the Firebird appeared again after the appellant had obtained his pistol, he observed the Firebird “slow down.” Appellant recognized Beaty as the front seat passenger. Appellant testified he then “panicked” and fired the pistol repeatedly at the Firebird, perhaps eight times. Appellant claimed he fired the pistol at the driver’s door, despite the fact that Beaty, of whom he was putatively afraid, was seated in the passenger seat. Appellant explained that Beaty had threatened his life, that thereafter there had been a drive-by shooting at his parents’ home where he lived, and that he had been shot at while in his own automobile only days before the fatal incident. Appellant could not connect Beaty with the two shootings, but believed the gang to which Beaty belonged was involved. Appellant related that at 2:00 or 3:00 a.m. on Friday before Easter Sunday 1995, he and a cousin had driven to a Jack-In-The-Box restaurant; that Beaty and Michelle Esquivel were working at the drive-thru window; that while he knew Beaty *344 as Pollo Loco (Crazy Chicken) and knew he was a member of the Bros Gang, there had been no difficulty between them; that Beaty began to stare at him, threw gang signs at him, and then threatened his life. Appellant got his food order and left. He later saw Beaty on Easter Sunday in a park. Beaty again threw gang signs, but no trouble developed because appellant left the park. Appellant denied being in a gang and claimed the Outloz or Oz group to which he belonged was merely a graffiti group.

Michelle Esquivel testified that she and Beaty had been at the home of relatives nearby and had gone to a store and were returning to their relatives’ house when they were fired upon. They had offered Gonzales a ride when they encountered him at the store.

Chief Medical Examiner, Dr. Roberto Bay-ardo, testified that Beaty died from “massive internal bleeding due to a gunshot wound that penetrated his body in the left upper back and exited through the right chest wall.” The .45 caliber weapon was recovered and the bullets retrieved from the car and elsewhere were shown to have been fired from appellant’s firearm.

INDICTMENT AND JURY CHARGE

Subsection (b) of section 19.02 of the Texas Penal Code under which appellant was charged provides:

(b)A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) 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 attempts 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) (West 1994). 1

Section 22.05 (Deadly Conduct) of the Texas Penal Code provides:

(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

(b) A person commits an offense 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.

(c) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.

(d) For purposes of this section, “building,” “habitation,” and “vehicle” have the meanings assigned those terms by Section 30.01.

(e) An offense under Subsection (a) is a Class A misdemeanor. An offense under Subsection (b) is a felony of the third degree.

Tex. Penal Code Ann. § 22.05 (West 1994). 2

The instant indictment charged appellant under all three modes of committing first degree murder under section 19.02 in one count with three separate paragraphs. The third paragraph charged felony murder by alleging that appellant

did then and there commit a felony, namely, deadly conduct, and in the course and furtherance of the commission of said felo *345 ny commit an act clearly dangerous to human life, namely, knowingly discharge a firearm, a deadly weapon, at and in the direction of one or more individuals and at and in the direction of a motor vehicle and was reckless as to whether the said motor vehicle was occupied, thereby causing the death of James Beaty.

At the conclusion of the guilt/innocence phase of the trial, the proposed jury charge submitted all three modes of murder under section 19.02, as well as the offense of manslaughter. See Tex. Penal Code Ann. § 19.04 (West 1994). 3 Appellant objected to the submission of felony murder because the charge boot strapped the offense of deadly conduct into felony murder, violating the merger doctrine and the decision in Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App.1978). Appellant contended that the felony murder rule has no application where the underlying felony sought to be used as the basis for the operation of the rule is the very act which caused the homicide. The trial court overruled the objection and submitted the charge authorizing the jury to first consider murder under section 19.02(b)(1), then murder under section 19.02(b)(2), and then felony murder under section 19.02(b)(3). Lastly, the trial court submitted the offense of manslaughter. There was also an abstract charge on section 6.04(b) 4 but it was never applied to the facts and a conviction was not authorized on that theory.

The jury found appellant guilty of felony murder. It is appellant’s contention that the trial court erred in charging on felony murder over timely objection and that any conviction resulting therefrom cannot stand.

COMMON LAW

At early common law, an individual was held liable for murder when he caused a death, although unintentionally, while committing a felony. 4 William Blackstone, Commentaries 200 (1897). This concept is known as the felony murder rule. The first statement of the common law felony murder rule has frequently been attributed to the seventeenth century pronouncement of Lord Coke: “If the act be unlawful, it is murder.” 3 Edward Coke, Institutes of the Laws of England (London 1797); see also 3 James Stephen, A History of the Criminal Laws of England 52-57 (1883); 2 Charles E. Toreia, Wharton’s Criminal Law, Murder § 146, at 296 (15th ed.1994); Phillip Zelikow, The Constitutionality of Imposing the Death Penalty for Felony Murder, 15 Hous. L.Rev. 356, 364 (1978) (hereinafter Zelikow ). 5

The felony murder doctrine, as developed at common law, provided that where a death occurs in the course of, or as a consequence of, the commission of another distinct felony, the felonious intent involved in the underlying felony may be transferred to supply the intent to kill necessary to characterize the death as murder. W.E. Shipley, Annotation, Judicial Abrogation of Felony-Murder Doctrine, 13 A.L.R.4th 1226, 1227 (1982). Few legal doctrines have been as maligned and yet have shown as great a resilience as the felony murder rule. Roth & Sundby at 446. Perhaps as a result, the “felony murder rule has been subject to many convoluted interpretations in the various jurisdictions ...” Zelikow at 367.

The early felony murder rule lacked significance since all felonies in England at the time were punishable by death. See Wayne LaFave & Austin W. Scott, Handbook on Criminal Law § 71, at 546 n. 4 (West 1972) (hereinafter LaFave & Scott). If the intended act was a felony, its felonious design was *346 imputed to the act actually committed, if that act was a homicide, it became murder since it was immaterial whether the offender was hanged for one felony or the other. See Jenkins v. State, 230 A.2d 262, 268 (Del.1967); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 476 (1958); Powers v. Commonwealth, 61 S.W. 735, 741 (Ky.1901). Needless to say, the felony murder doctrine was brought to the American colonies. After independence, the doctrine became a part of the common law or statutory provisions of every American state. In most states, the felony murder statutory pattern continues to this day to be grounded conceptually on the 1794 felony murder statute of Pennsylvania: “All murder ... which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary shall be deemed murder in the first degree.” 6 Generally speaking, the statutory provisions adopted early on by the various states did not create new offenses but merely modified the common law rules with regard to the intent of the defendant or the punishment to be imposed. See 40 Am.Jur.2d, Homicide § 72 at 365 (1968). As the number of felonies multiplied so as to include a great number of relatively minor offenses, many of which involved no great danger to life or limb, it became necessary, in order to alleviate the harshness of the rule, to limit it in some fashion. LaFave & Scott, § 71 at 345-46. In England, the courts came to limit the felony murder doctrine: (1) by requiring that the defendant’s conduct in committing the underlying felony involve an act of violence in carrying out a felony of violence, 7 or (2) by requiring that the death be the natural and probable consequence of the defendant’s conduct in committing the felony. 8 In 1957, the rule was abolished in the country of its origin. Homicide Act 1957, 5 & 6 Eliz. 2, ch. 11, § 1. 9

In the United States, limitations on the doctrine have varied from state to state and often have depended on differently worded statutes. Some states limit the rule to certain enumerated felonies, others to felonies that are inherently or foreseeably dangerous to human life, or where the homicide is a natural consequence of the felonious act. Some states require that the underlying felony be malum in se rather than malum pro-hibitum. Another limitation is that the underlying felony must be independent of the homicide. See LaFave & Scott § 71, at 547-553; Roth & Sundby, 446-47 n. 7; Aaron, 299 N.W.2d at 312-17, 40 C.J.S. Homicide, § 417-19. This latter limitation has become known as the merger doctrine, which was first adopted in State v. Shock, 68 Mo. 552 (1878) and primarily developed in New York state courts commencing with People v. Hüter, 184 N.Y. 237, 77 N.E. 6 (1906); see also Comment, Application of the Merger Doctrine to the Felony murder Rule in Texas: The Merger Muddle, 42 Baylor L.Rev. 535 (1990); Note, Felony Murder in Texas: The Merger Problem, 33 Baylor L.Rev. 1035 (1981). It has been said that under this doctrine the felony murder rule will not apply where the underlying felony sought to be used as a basis for the operation of the rule is an offense included in fact in the homicide itself. See Richardson v. State, 823 S.W.2d 710, 714 (Tex.App.—San Antonio 1992, pet. ref'd). Where the merger doctrine is applied, the felony murder rule is not invoked unless the slayer was engaged in some other felony so distinct as not to be an ingredient of the homicide itself. See People v. Wilson, 1 Cal.3d 431, 82 Cal.Rptr. 494, 499-501, 462 P.2d 22, 28-30 (1969).

TEXAS UNTIL 1974

Our research reveals that early on Texas limited felony murder to certain enumerated felonies but also permitted conviction on the theory of transferred intent. Article 1141 of the 1911 Penal Code provided: “All murder committed by poison, starving, torture, or *347 with express malice, or committed in perpetration, or in the attempt at perpetration of arson, rape, robbery or burglary, is murder in the first degree; and all murder not of the first degree is murder of the second degree.” With the language unchanged, this article was the successor to article 711 of 1895 Penal Code, to article 606 of the 1858 code, and to “Act of March 20,1848, p. 219 (Hart.Dig. art. 501).” Willison’s Penal Code and Code of Criminal Procedure § 1032-34 at 203-04 (4th ed. 1888). The 1911 code provision was not brought forward in the 1925 Penal Code or later codes. We do find that article 1325 of the 1925 Penal Code provided that when death was occasioned by any offense in the chapters on arson or wilful burning, the offender was guilty of murder. This article was later amended to provide that in the absence of malice aforethought of the offender, the punishment shall be life imprisonment or any term of year not less than two years. Act of May 6, 1965, 59th Leg., R.S., eh. 251, § 1,1965 Tex. Gen. Laws 489.

Article 42 of the 1925 Penal Code provided: “One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed.” This provision was the successor unchanged from article 48 of both the 1911 and 1895 Penal Codes and traceable at least to 1858.

Kuykendall v. State, 609 S.W.2d 791 (Tex.Crim.App.1980), touched on the history of felony murder in Texas when affirming a murder conviction where the offense had occurred in the course of and in furtherance of a robbery. The court stated:

As the theory of transferred intent was generally understood to apply to felony murder cases under the former penal codes, whereas in the usual “regular” murder cases the trial court ordinarily instructed the jury that they must find the accused intended to kill the deceased, there are other kinds of cases in which it was not necessary to prove or charge the jury touching on a specific intent to kill “further than is involved in the proof of certain facts” such as a killing committed in the perpetration of arson, burglary or robbery, Lyons v. State, 138 Tex.Cr.R. 375, 136 S.W.2d 835 (1940), or other felony pursuant to Article 42, P.C.1925; Smith v. State, 154 Tex.Cr.R. 234, 225 S.W.2d 846 (1949).

Kuykendall, 609 S.W.2d at 795-96. See generally George Wilfred Stumberg, Criminal Homicide in Texas, 16 Tex. L.Rev. 305 (April 1938).

Some of the earlier cases clearly support Kuykendall’s historical recitation. In Miller v. State, 112 Tex.Crim. 125, 13 S.W.2d 865, 867 (1929), the court noted that a “voluntary killing simply means an intended killing,” but added:

There do exist cases, we think, in which it is not necessary to prove a specific intent to kill any further than is involved in the proof of certain facts as the intentional infliction of serious bodily injury upon the person of another by the use of a weapon, deadly per se, or a killing committed in the attempted perpetration of arson, burglary, etc. In such cases we can see no reason for giving the charge under discussion [intent to kill].

Id. 13 S.W.2d at 867.

Similarly in Whiteside v. State, 115 Tex.Crim. 274, 29 S.W.2d 399, 403 (1930), the court observed that a specific intent to kill is not in every ease essential to support a conviction of murder and added: “If death results under certain conditions the law regards it as murder aside from the intent.”

Salisbury v. State, 90 Tex.Crim. 438, 235 S.W. 901, 902 (1921), observed that one who shoots wantonly and recklessly into a ear or building known to him to be occupied need not have the specific intent to kill any particular person in order to make him guilty of murder. In Banks v. State, 85 Tex.Crim. 165, 211 S.W.2d 217 (1919), the evidence showed that the defendant shot at a moving train killing a brakeman whom he did not know. In fact, the defendant apparently knew no one on the train. Clearly indicating that murder could exist even in the absence of a specific intent to kill, the court stated: “The intentional doing of any wrongful act in *348 such manner and under such circumstances as that the death of a human being may-result therefrom is malice.” Id. 211 S.W. at 217; see also Taylor v. State, 41 Tex.Crim. 564, 55 S.W. 961 (1900). Sargent v. State, 518 S.W.2d 807, 809 (Tex.Crim.App.(1975)), involved a conviction for murder with malice under the 1925 code where the court held that article 42 was a statute which as a matter of law transfers intent from the crime contemplated to the one actually committed. The court held that a defendant may not rely on the doing of an unintentional act as a defense when he in fact intended to commit another felony.

In Smith v. Texas, 329 F.2d 498 (5th Cir.1964), a federal habeas corpus proceeding, the court held that the killing of a boy by smothering and suffocation while preparing and executing sodomy on the boy constituted murder with malice under the Texas Penal Code. The court’s holding was based on article 524 of the 1925 code, which made sodomy a felony, and the transferred intent provisions of then article 42. See also Smith v. State, 171 Tex.Crim. 313, 350 S.W.2d 344, 346, cert denied, 368 U.S. 883, 82 S.Ct. 126, 7 L.Ed.2d 83 (1961); Johnson v. State, 169 Tex.Crim. 612, 336 S.W.2d 175, 179-80, cert denied, 364 U.S. 927, 81 S.Ct. 355, 5 L.Ed.2d 267 (1960). 10

Hilliard v. State

Hilliard v. State, 513 S.W.2d 28 (Tex.Crim.App.1974), is a crucial case in understanding the felony murder rule in Texas under articles 42 and 1256 11 of the 1925 Penal Code, and is important to our later discussion of the merger doctrine. The defendant in Hil-liard was convicted of murder with malice under the felony murder rule with the underlying felony offense being injury to a child as provided then in article 1148a of the 1925 code. The Hilliard court first rejected the defendant’s claim that the submission of the felony murder issue to the jury was error because the provisions of article 42 were not alleged in the indictment. Hilliard, 513 S.W.2d at 31. It then held that article 42 did not eliminate the gradation of homicide explaining that “it adds another manner of showing murder; that is, murder committed while in the act of committing another felony.” Id. at 32. The court noted that article 42 had been consistently construed to mean an accused is actually guilty of the offense committed during the preparation or execution of another felony. Id. at 32-33. Acknowledging a transfer of intent was involved, the court stated: “Thus, the intent to kill in the present case is supplied by the intent to commit the felony which the appellant did intend to commit and was committing which caused the child’s death.” The court rejected the defendant’s claim that by charging on article 42 the trial court had deprived the jury of its right to pass upon the necessary element of the intent to Mil.

Most importantly, Hilliard clearly demonstrated that the merger doctrine was not to be applied in felony murder cases in Texas. Relying upon Crawford v. State, 511 S.W.2d 14 (Tex.Crim.App.1974), and Johnson, 336 S.W.2d at 175, the Hilliard court wrote:

In each of Crawford and Johnson, supra, there was only the one felonious assault on the victim; however, that assault through mistake or accident was the. cause of the act (killing the deceased) wMch, if voluntarily done would be a felony.

Hilliard, 513 S.W.2d at 33. The defendant clearly urged the adoption of the merger doctrine, but it was flatly rejected by Hilliard. 12

*349 1974 PENAL CODE AND CASE LAW

The 1974 Penal Code definitely made changes in statutes relating to murder in Texas. Section 19.02, a unique statute, simplified the definition of first degree murder by eliminating the concept of malice. Three separate and distinct statutory modes or ways of committing the offense were established. Then section 19.02(a)(1) used two carefully defined terms, “intentional” and “knowing,” to describe the culpable mental state necessary under that subsection. 13 Although section 6.01 of the 1974 code provided that a person commits an offense only if his conduct is voluntary, the term is subsumed in the terms of “intentional” and “knowing.” See Texas Anno. Penal Statutes, Branch’s 3d ed. § 19.02 at 12 (1974).

The second mode of first degree murder, under section 19.02(a)(2), applied to an unintended killing when there is an intent to cause serious bodily injury plus the commission of an act clearly dangerous to human life that causes death. See 18 Tex. Jur.3d, Criminal Law § 195, at 272 (1982). A specific intent to kill was not an essential element of murder under this mode. See Garcia v. State, 541 S.W.2d 428, 430 (Tex.Crim.App.1976); Baldwin v. State, 538 S.W.2d 615, 616 (Tex.Crim.App.1976) (both overruled to the extent of conflict on other grounds); Flanagan v. State, 675 S.W.2d 734, 737 (Tex.Crim.App.1984). A killing under this subsection was murder notwithstanding that no murder was intended. Dovalina v. State, 564 S.W.2d 378, 385-86 (Tex.Crim.App.1978).

The third mode of committing first degree murder was found in section 19.02(a)(3), which codified the felony murder doctrine in a different manner than the earlier codes. The 1973 Practice Commentary to section 19.02 stated in pertinent part:

Although it may contract the scope of the Article 42 felony murder doctrine, the chief aim of Section 19.02(a)(3) is clarification. Under it the mere attempt or commission of a felony no longer suffices to construct intent or knowledge: the actor must kill while attempting or committing an act clearly dangerous to human life in the course of furtherance of the felony or in immediate flight therefrom. As most felony murder prosecutions today involve killings committed while the felon is engaged in highly dangerous conduct, however, Section 19.02(a)(3)’s restatement of the doctrine will probably effect little change in practice.

The legislature restricted the felony murder doctrine under this subsection to the commission or attempt to commit any felony (other than voluntary and involuntary manslaughter) but only when in the course of and in the furtherance of the commission or attempt to commit an act clearly dangerous to human life is committed that causes the death of an individual.

The legislature saw fit to expressly exempt only the offenses of voluntary and involuntary manslaughter from the application of section 19.02(a)(3). This is because, as voluntary manslaughter, it would be futile to recognize sudden passion arising from an adequate cause as sufficiently mitigating to reduce a voluntary kñling to voluntary manslaughter under section 19.04 of the 1974 Penal Code, 14 if in the next breath voluntary manslaughter may become first degree murder by virtue of section 19.03(a)(3) of the 1974 Penal Code.

It would seem clear that section 19.02(a)(3) was to replace, at least in the first part, the felony murder aspect of the former code. It was a separate mode of first degree murder, a distinct crime for which the killing did not have a separate mens rea element apart from the felony. No transferred intent was required. It was this change in the law of *350 felony murder that has caused some confusion. 15

One of the first cases to come to grips with the third mode of murder under section 19.02 of the 1974 code was Rodriquez v. State, 548 S.W.2d 26 (Tex.Crim.App.1977). The court observed that section 19.02(a)(3) was silent as to, and plainly did not dispense with, the culpable mental state required for the underlying felony committed or attempted, but held that the culpable mental state shall be one of intent, knowledge, or recklessness as required by section 6.02 16 then in effect under such circumstances. Rodriquez, 548 S.W.2d at 28. The court then added:

Thus, the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying committed or attempted felony giving rise to the act. The transference of the mental element establishing criminal responsibility for the original act to the resulting act conforms to and preserves the traditional mens rea requirement of criminal law. See, e.g., Hilliard v. State, 513 S.W.2d 28 (Tex.Crim.App.1974).

Rodriquez, 548 S.W.2d at 28-29. The court then rejected the defendant’s claim that section 19.02(a)(3) was unconstitutional for its failure to specify the culpable mental state required for the act of murder. Id. at 29.

In response to the defense claim that the underlying felony, carrying a handgun on certain premises licensed by the State for the sale of alcoholic beverages, was not a felony involving intentional violence, the court stated:

Suffice it to state, without an academic discussion of the views of courts of other states as presented in the briefs, that the legislature has seen fit to exempt only the felonies of voluntary and involuntary manslaughter, and we will not add to the statutory exemption. The first ground is overruled.

Id. at 29. The court in effect recognized the lawmaking authority of the legislature, which includes the right to define crimes and fix penalties. Tex. Const, art. Ill, § 1.

Now, we enter the area of troublesome cases decided under the 1974 code. While Rodriquez declined to “add to the statutory exemption,” that is exactly what the court did in Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App.1978), upon which appellant relies. Garrett dismissed the statement regarding limited statutory exemptions in Rodriquez as merely restating the terms of the statute and concluded that the statute had to be construed in the light of common sense and to promote the objectives of the code. Garrett, 573 S.W.2d at 546 n. 6. No claim was made in the opinion that the statutory language was ambiguous requiring construction. The Garrett opinion, for the first time, engaged in a wholesale adoption of the merger doctrine as a limitation on the felony murder rule in Texas. It concluded that the underlying fel *351 ony, aggravated assault, and the act in the homicide were one and the same, an indivisible transaction, and the murder conviction under section 19.02(a)(3) could not stand. “There must be a showing of felonious criminal conduct other than the assaults causing the homicide.” Garrett, 573 S.W.2d at 546. No mention was made of the fact that the merger doctrine had been expressly rejected by Hilliard, a decision under the former code, nor was there any discussion on why the merger doctrine was the only limitation upon felony murder within the realm of common sense or the objectives of the code. The Garrett court based its “judicial adoption” in 1978 on People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927), although it acknowledged that Moran was based on New York statutes and ease law then in effect. Garrett, 573 S.W.2d at 545 n. 4. 17

Recognizing its intrusion on legislative turf, the court did retrench by holding that the statutory exemption of the voluntary manslaughter offense from a section 19.02(a)(3) prosecution included a prohibition against using “offenses statutorily includable in voluntary manslaughter.” Id. at 546. Undoubtedly, the court was referring to article 37.09 of the Code of Criminal Procedure, though it was not cited. See Tex.Code Crim. Proe. Ann. art. 37.09 (West 1981). Of course, any lesser included offense would have to be a felony. Judge Teague was later to observe that Garrett had erroneously held any lesser included offenses of voluntary manslaughter were excluded by the statute from being underlying offenses. He noted that the statute did not so state, that the legislature could have easily said so but did not, and that it was not the function of the Garrett court “to act legislatively.” Aguirre v. State, 732 S.W.2d 320, 329-30 (Tex.Crim.App.1987) (Teague, J., dissenting op. on reh’g).

If the merger doctrine in Texas seemed settled after Garrett, it was only a mirage. Almost four years later, Ex parte Easter, 615 S.W.2d 719, 721 (Tex.Crim.App.), cert. denied, 454 U.S. 943, 102 S.Ct. 481, 70 L.Ed.2d 252 (1981), held that not every “assaultive” offense, if alleged as an underlying felony, will merge with the homicide in a felony murder indictment under section 19.02(a)(3), noting that “the language carefully chosen in Garrett should not be given an overly broad meaning.” Easter was a post-conviction proceeding wherein the petitioner challenged his felony murder conviction based on the underlying felony of injury to a child which had resulted in death. Petitioner relied upon Garrett because injury to a child was an assaultive offense. The Easter court disagreed, noting that this contention had been rejected in Hilliard when presented under the 1925 Penal Code and that there had been “little change in practice” since. The court further stated that the felony murder rule in the 1974 Penal Code dispensed with the inquiry into the mens rea accompanying the homicide itself, and that the underlying felony—injury to a child—supplied the necessary culpable mental state. Garrett was further distinguished by holding that the offense of injury to a child was not a lesser included offense of murder.