felony-murder rule in Texas

2025The felony murder doctrine “dispenses with the necessity of proving [the] mens rea accompanying the homicide itself; the underlying felony supplies the culpable mental state.” Johnson v. State, 4 S.W.3d 254, 255 (Tex. Crim.

2017Rejecting the appellant’s broad merger argument, the Court found that while section 19.02(b)(3) specifically exempts manslaughter from the felony-murder rule, holding “[n]ot every ‘assaultive’ offense, if alleged as an underlying felony, will merge with the homicide in a felony murder indictment.” Id. at 256.

2025Second, when the felony murder doctrine is applied to situations in which the underlying felony, such as aggravated assault, “and the act resulting in the homicide [are] one and the same,” there “is an attempt to split into unrelated parts an indivisible transaction.” Id.

2024Appellant further asserts that there was no need to prove his intent with regard to the remaining element of the charged offense because, as mentioned above, “the felony murder rule dispenses with any inquiry into the mens rea accompanying the homicide itself.” See Garrett v. State, 573 S.W.2d 543, 545 (Tex. Crim.

2023The court reasoned that “deciding that Section 19.02(b)(3) dispenses with a culpable mental state is consistent with the historical purpose of the felony-murder rule, the very essence of which is to make a person guilty of an ‘unintentional’ murder when [s]he causes another person’s death during the commission of some type of felony.” Id.

2022Lastly, the Court asserted that deciding that Subsection 19.02(b)(3) dispenses with a culpable mental state “is consistent with the historical purpose of the felony-murder rule, the very essence of which is to make a person guilty of an ‘unintentional’ murder when he causes another person’s death during the commission of some type of a felony.” Id. at 305 . 17 Consequently, because the Legislature intended to dispense with a culpable mental state in defining felony murder under Subsection 19.02(b)(3), the lack of a mens rea requirement does not render the statute facially unconstitutional.

2007But, any culpable mental state accompanying the underlying felony cannot supply the culpable mental state for “the act of murder,” 12 because the very nature of the felony-murder rule is that there is no culpable mental state “for the act of murder.” See Threadgill, 146 S.W.3d at 665 (felony-murder is an “unintentional” murder committed in the course of a felony); Lawson, 64 S.W.3d at 397-403 (Cochran, J., concurring).

2007But, any culpable mental state accompanying the underlying felony cannot supply the culpable mental state for "the act of murder," (12) because the very nature of the felony-murder rule is that there is no culpable mental state "for the act of murder." See Threadgill , 146 S.W.3d at 665 (felony-murder is an "unintentional" murder committed in the course of a felony); Lawson , 64 S.W.3d at 397-403 (Cochran, J., concurring).

2026The exemption is logical; “[i]f involuntary manslaughter could form the basis of a felony murder prosecution, each and every such recklessly caused death would constitute felony murder,” and manslaughter “would be swallowed up by the felony murder rule.” Lawson v. State, 64 S.W.3d 396, 398 (Tex. Crim.

2020App. 1978) (holding that application of the felony murder doctrine is improper where “[t]he aggravated assault and the act resulting in the homicide were one and the same”).6 However, the 6 Garrett does not state, implicitly or explicitly, that the act constituting the underlying felony must 9 court of criminal appeals has since clarified that the rule elucidated in Garrett applies only “when the underlying felony is manslaughter or a lesser included offense of manslaughter.” Lawson v. State, 64 S.W.3d 396 (Tex. Crim.

1997It concluded that Easter was controlling as to whether the felony offense of injury to a child could be used as an underlying offense “notwithstanding other opinions to the contrary.” It took “refuge in the logic and reasoning” of Rodriquez, 548 S.W.2d at 29 , that the legislature had seen fit to exempt only the felonies of voluntary and involuntary manslaughter from the felony murder rule “and we will not add to that statutory exemption.” Berghahn, 696 S.W.2d at 949 ; see also Holley v. State, 713 S.W.2d 381, 385 (Tex.App.—Amarillo 1986), rev’d on other grounds, 766 S.W.2d 254 (Tex.Crim.App.1

1997It concluded that Easter was controlling as to whether the felony offense of injury to a child could be used as an underlying offense "notwithstanding other opinions to the contrary." It took "refuge in the logic and reasoning" of Rodriguez , 548 S.W.2d at 29 , that the legislature had seen fit to exempt only the felonies of voluntary and involuntary manslaughter from the felony murder rule "and we will not add to that statutory exemption." Berghahn , 696 S.W.2d at 949 ; see also Holley v. State , 713 S.W.2d 381, 385 (Tex. App.--Amarillo 1986), rev'd on other grounds , 766 S.W.2d 254 (Tex. Cri

2009Nevarez v. State, 847 S.W.2d 637, 641, 648 (Tex.App.-El Paso 1993, pet. refd) (affirming denial of motion to quash a felony murder indictment with possession of marihuana as underlying offense); Bryant v. State, 793 S.W.2d 59, 60 (Tex.App.-Austin 1990, pet. ref'd) (upholding conviction based on felony murder indictment with possession of marihuana as underlying offense); Stanford v. State, No. 01-87-00899-CR, 1988 WL 113997 , at *1-3 (Tex.App.-Houston [1st Dist.] Oct. 27, 1988, pet. ref'd) (mem. op., not designated for publication) (upholding trial court’s denial of defendant’s motion to quash

2009Nevarez v. State , 847 S.W.2d 637, 641, 648 (Tex. App.--El Paso 1993, pet. ref'd) (affirming denial of motion to quash a felony murder indictment with possession of marihuana as underlying offense); Bryant v. State , 793 S.W.2d 59, 60 (Tex. App.--Austin 1990, pet. ref'd) (upholding conviction based on felony murder indictment with possession of marihuana as underlying offense); Stanford v. State , No. 01-87-00899-CR, 1988 WL 113997 , at *1-3 (Tex. App.--Houston [1st Dist.] Oct. 27, 1988, pet. ref'd) (mem. op., not designated for publication) (upholding trial court's denial of defendant's motio

2009Nevarez v. State, 847 S.W.2d 637, 641, 648 (Tex.App.-El Paso 1993, pet. refd) (affirming denial of motion to quash a felony murder indictment with possession of marihuana as underlying offense); Bryant v. State, 793 S.W.2d 59, 60 (Tex.App.-Austin 1990, pet. ref'd) (upholding conviction based on felony murder indictment with possession of marihuana as underlying offense); Stanford v. State, No. 01-87-00899-CR, 1988 WL 113997 , at *1-3 (Tex.App.-Houston [1st Dist.] Oct. 27, 1988, pet. ref'd) (mem. op., not designated for publication) (upholding trial court’s denial of defendant’s motion to quash

2009Nevarez v. State , 847 S.W.2d 637, 641, 648 (Tex. App.--El Paso 1993, pet. ref'd) (affirming denial of motion to quash a felony murder indictment with possession of marihuana as underlying offense); Bryant v. State , 793 S.W.2d 59, 60 (Tex. App.--Austin 1990, pet. ref'd) (upholding conviction based on felony murder indictment with possession of marihuana as underlying offense); Stanford v. State , No. 01-87-00899-CR, 1988 WL 113997 , at *1-3 (Tex. App.--Houston [1st Dist.] Oct. 27, 1988, pet. ref'd) (mem. op., not designated for publication) (upholding trial court's denial of defendant's motio

1987Accordingly, it was held that “the State improperly prosecuted appellant under the felony murder doctrine.” When, in Ex parte Easter, 615 S.W.2d 719 (Tex.Cr.App.1981), the Court revisited it, the lesson of Garrett was said to be 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.

1987Accordingly, it was held that "the State improperly prosecuted appellant under the felony murder doctrine." When, in Ex parte Easter, 615 S.W.2d 719 (Tex.Cr.App.1981), the Court revisited it, the lesson of Garrett was said to be 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.

2007See Aguirre, 22 S.W.3d at 472-76 . 7 And, deciding that Section 19.02(b)(3) dispenses with a culpable mental state is consistent with the historical purpose of the felony-murder rule, the very essence of which is to make a person guilty of an “unintentional” murder when he causes another person’s death during the commission of some type of a felony.

2007See Aguirre , 22 S.W.3d at 472-76 . (7) And, deciding that Section 19.02(b)(3) dispenses with a culpable mental state is consistent with the historical purpose of the felony-murder rule, the very essence of which is to make a person guilty of an "unintentional" murder when he causes another person's death during the commission of some type of a felony.

2017In Murphy , the indictment alleged the defendant committed the felony offense of arson by starting a fire in a habitation for the purpose of collecting insurance proceeds, and in the course and furtherance of the commission of that offense, committed an act dearly dangerous to human life, to-wit: starting a fire in a- habitation, thereby causing the death of an individual.' The appellant máintainéd that the merger doctrine operated to bar his prosecution because “the gist of the underlying felony, namely, ‘starting a fire,’ was the1 exact same act alleged to have been clearly dangerous to huma

1999We cited Garrett as standing for the proposition that the felony murder doctrine, embodied in section 19.02(a)(3), does not apply “where the precedent felony is an assault inherent in the homicide.” Id. at 120.

2015In Holley v. State, the appellant argued that the application paragraph allowed conviction under the felony murder rule for a death that resulted during the commission of a misdemeanor because the application paragraph did not require a finding of serious bodily injury and allowed conviction upon a finding that defendant’s conduct was committed recklessly. 766 S.W.2d 254, 255 (Tex. Crim.

1997It concluded that Easter was controlling as to whether the felony offense of injury to a child could be used as an underlying offense "notwithstanding other opinions to the contrary." It took "refuge in the logic and reasoning" of Rodriguez , 548 S.W.2d at 29 , that the legislature had seen fit to exempt only the felonies of voluntary and involuntary manslaughter from the felony murder rule "and we will not add to that statutory exemption." Berghahn , 696 S.W.2d at 949 ; see also Holley v. State , 713 S.W.2d 381, 385 (Tex. App.--Amarillo 1986), rev'd on other grounds , 766 S.W.2d 254 (Tex. Cri

2001See, e.g., Wade v. State, 581 P.2d 914 (Okla.Crim.App.1978) (to invoke felony murder doctrine it is sufficient that underlying felony is "potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide"); Jenkins v. State, 230 A.2d 262 (Del.1967) (when underlying felony was burglary of a building, felony murder rule applies only when actor's conduct was "foreseeably dangerous to human life" and depends "upon whether someone may be reasonably expected to be present in the building, and upon other circumstances of the case"); [14] See generally, LaFave

2001See, e.g., Wade v. State, 581 P.2d 914 (Okla.Crim.App.1978) (to invoke felony murder doctrine it is sufficient that underlying felony is "potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide"); Jenkins v. State, 230 A.2d 262 (Del.1967) (when underlying felony was burglary of a building, felony murder rule applies only when actor's conduct was "foreseeably dangerous to human life" and depends "upon whether someone may be reasonably expected to be present in the building, and upon other circumstances of the case"); [14] See generally, LaFave

2007See Threadgill v. State, 146 S.W.3d 654, 665 (Tex.Cr.App.2004) (felony-murder is an “unintentional” murder committed in the course of a felony); Lawson, 64 S.W.3d at 397-403 (Cochran, J., concurring) (discussing history of felony-murder rule); Rodriguez v. State, 953 S.W.2d 342, 345-54 (Tex.App.-Austin 1997, pet. ref'd) (Onion, J.) (discussing felony-murder rule at common law, under Texas statutory law until 1974, under the 1974 penal code and case law, and under the 1994 penal code).

2007See Threadgill v. State , 146 S.W.3d 654, 665 (Tex.Cr.App. 2004) (felony-murder is an "unintentional" murder committed in the course of a felony); Lawson , 64 S.W.3d at 397-403 (Cochran, J., concurring) (discussing history of felony-murder rule); Rodriguez v. State , 953 S.W.2d 342, 345-54 (Tex.App.-Austin 1997, pet. ref'd) (Onion, J.) (discussing felony-murder rule at common law, under Texas statutory law until 1974, under the 1974 penal code and case law, and under the 1994 penal code).

2015See id. (concluding that a felony-murder instruction was not warranted because shooting the decedent in the head at close range was more than an act clearly dangerous to human life).

2015See id. (concluding that a felony-murder instruction was not warranted because shooting the decedent in the head at close range was more than an act clearly dangerous to human life).

2011See generally Flores v. State , 102 S.W.3d 328, 330 (Tex. App.—Eastland 2003, pet. ref’d) (citing Johnson v. State , 4 S.W.3d 254, 255 (Tex. Crim.

2011See generally Flores v. State, 102 S.W.3d 328, 330 (Tex. App.— Eastland 2003, pet. ref’d) (citing Johnson v. State, 4 S.W.3d 254, 255 (Tex. Crim.

2007See State v. Pembleton, 978 S.W.2d 352, 355-56 (Mo.Ct.App.1998) (majority rule is that specific statute dealing with the killing of a person during a DWI does not preempt the general criminal statute because “a prosecutor has the discretion of choosing which statute to proceed on when two statutes proscribe the same behavior”). 28 Appellant argues that this interpretation of these 1993 legislative changes not making Chapter 49 the exclusive domain of DWI homicides has the effect of allowing intoxication manslaughter to form the basis of a felony-murder prosecution thereby resulting in the felo

2007See State v. Pembleton , 978 S.W.2d 352, 355-56 (Mo. Ct. App. 1998) (majority rule is that specific statute dealing with the killing of a person during a DWI does not preempt the general criminal statute because "a prosecutor has the discretion of choosing which statute to proceed on when two statutes proscribe the same behavior"). (28) Appellant argues that this interpretation of these 1993 legislative changes not making Chapter 49 the exclusive domain of DWI homicides has the effect of allowing intoxication manslaughter to form the basis of a felony-murder prosecution thereby resulting in th

2007See Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex.Cr.App.1998) (stare decisis principles have less force when the older precedent is inconsistent with newer, more soundly reasoned, decisions). .

2007See Awadelkariem v. State , 974 S.W.2d 721, 725 (Tex.Cr.App. 1998) ( stare decisis principles have less force when the older precedent is inconsistent with newer, more soundly reasoned, decisions). 16.

1997People v. Aaron, 409 Mich. 672 , 299 N.W.2d 304 (1980) has traced the history of the felony murder doctrine in great detail, attributing the origin of the rule to cases decided before Lord Coke’s pronouncement.

1997People v. Aaron , 299 N.W.2d 304 (Mich. 1980) has traced the history of the felony murder doctrine in great detail, attributing the origin of the rule to cases decided before Lord Coke's pronouncement.

1997It concluded that Easter was controlling as to whether the felony offense of injury to a child could be used as an underlying offense “notwithstanding other opinions to the contrary.” It took “refuge in the logic and reasoning” of Rodriquez, 548 S.W.2d at 29 , that the legislature had seen fit to exempt only the felonies of voluntary and involuntary manslaughter from the felony murder rule “and we will not add to that statutory exemption.” Berghahn, 696 S.W.2d at 949 ; see also Holley v. State, 713 S.W.2d 381, 385 (Tex.App.—Amarillo 1986), rev’d on other grounds, 766 S.W.2d 254 (Tex.Crim.App.1

1997It concluded that Easter was controlling as to whether the felony offense of injury to a child could be used as an underlying offense "notwithstanding other opinions to the contrary." It took "refuge in the logic and reasoning" of Rodriguez , 548 S.W.2d at 29 , that the legislature had seen fit to exempt only the felonies of voluntary and involuntary manslaughter from the felony murder rule "and we will not add to that statutory exemption." Berghahn , 696 S.W.2d at 949 ; see also Holley v. State , 713 S.W.2d 381, 385 (Tex. App.--Amarillo 1986), rev'd on other grounds , 766 S.W.2d 254 (Tex. Cri

1985See and cf. Kuykendall v. State, 609 S.W.2d 791, 794-795 (Tex.Cr.App.1980).

1981See and cf. Kuykendall v. State, 609 S.W.2d 791, 794-795 (Tex.Cr.App.1980).

1988Writing for the majority, Chief Justice Traynor of the California Supreme Court recognized that apart from the felony-murder rule, "malice may be established when a defendant initiates a gun battle, and that under such circumstances he may be convicted of murder for a killing committed by another." People v. Gilbert, supra, 408 P.2d at 373 (citing Judge Traynor's opinion in People v. Washington, 62 Cal.2d 777 , 781-82 , 44 Cal.Rptr. 442 , *Page 273 402 P.2d 130 , 133 (1965), in which he noted that "when the defendant intends to kill or intentionally commits acts that are likely to kill with a

1988Writing for the majority, Chief Justice Traynor of the California Supreme Court recognized that apart from the felony-murder rule, "malice may be established when a defendant initiates a gun battle, and that under such circumstances he may be convicted of murder for a killing committed by another." People v. Gilbert, supra, 408 P.2d at 373 (citing Judge Traynor's opinion in People v. Washington, 62 Cal.2d 777 , 781-82 , 44 Cal.Rptr. 442 , *Page 273 402 P.2d 130 , 133 (1965), in which he noted that "when the defendant intends to kill or intentionally commits acts that are likely to kill with a

2024See Fuentes, 991 S.W.2d at 272 ; Taylor v. State, No. 05-12-00540-CR, 2013 WL 4081422 , at *12 (Tex. App.—Dallas Aug. 13, 2013, pet. ref’d).

2022Facial Constitutional Challenge In his third issue, appellant contends that the felony-murder rule is facially unconstitutional because it “allows for a conviction in the absen[c]e of an applicable mental state,” “creates a mandatory presumption of guilt,” and “punishes a defendant as a murderer in the absence of a mental state violating the Due Process Clauses and Cruel and Unusual Punishment Clause of the United States Constitution.” Citing Patterson v. New York, 432 U.S 197, 201 (1977), and Morrissette v. United States, 342 U.S. 246, 250 (1952), he asserts that a “law violates the Due Proce