The majority holds that because appellant was indicted with "intentionally and knowingly" committing aggravated assault, and the culpable mental state for committing manslaughter is "recklessly," appellant was not indicted for an offense that is a lesser included offense of manslaughter. Lawson v. State, No. 1767-00, slip op. at 3 (Tex. Crim. App. Dec. 5, 2001) (hereinafter cited as Majority Op.). Only two years ago, eight members of this Court joined an opinion in which we held that while Texas does not have a general merger doctrine, a felony murder conviction cannot be predicated on a conviction for manslaughter or an offense that is statutorily includable in manslaughter. Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999). Johnson thereby affirmed the underlying holding of Garrett v. State, 573 S.W.2d 543 (Tex. Crim. App.1978) but explicitly limited Garrett to its facts. Johnson, 4 S.W.3d at 258.

Garrett is factually identical to the case before us. The appellant in Garrett was indicted for "intentionally and knowingly" committing aggravated assault and we held that the assault could not form the basis of his felony murder conviction. Garrett, 573 S.W.2d at 545 n.2, 546. We stated in relevant part:

[a]ny other result in this case would allow circumvention of the statutory limits of the felony murder statute…. Most voluntary manslaughter offenses are initiated as aggravated assaults. 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. To hold to the contrary would render the statute meaningless and its effect nil.

Garrett, 573 S.W.2d at 546. By permitting a felony murder conviction to be predicated on an offense that is statutorily includable in manslaughter, the majority contradicts itself. On the one hand, the majority effectively overrules Garrett and eviscerates our recent opinion in Johnson; on the other hand, it cites no authority other than Garrett and Johnson. ⁽¹⁾

See Majority Op. at 3.

In addition, the majority's opinion permits precisely the type of circumvention we cautioned against in Garrett and "make[s] murder out of every aggravated assault that results in death." See Garrett, 573 S.W.2d at 545. Penal Code § 19.02(b)(3) provides that an offense is murder if the actor causes the death of another by committing an act clearly dangerous to human life in the course of committing a felony other than manslaughter. According to the majority, the State may now circumvent this legislative prohibition by simply alleging that the defendant committed an intentional and knowing aggravated assault rather than manslaughter. While I respectfully acknowledge the merger doctrine's judicial pedigree, ⁽²⁾ I am unwilling to jettison the legislature's explicit directive against relying on manslaughter to convict a defendant of felony murder. I am additionally unwilling to uproot this Court's precedent in Johnson and Garrett. I dissent.

Delivered December 5, 2001

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1. When it affirmed appellant's conviction on remand from this Court, the Amarillo Court of Appeals acknowledged that aggravated assault may be statutorily includable in the offense of manslaughter. Lawson v. State, 26 S.W.3d 920, 922. However, it relied on the fact that appellant had been indicted for an intentional aggravated assault and on a decision in Neff v. State, 629 S.W.2d 759, 760 (Tex. Crim. App. 1982) to hold that the assault in this instance was not a lesser included offense of manslaughter. Lawson, 26 S.W.3d at 922. The court's reliance on Neff was not only novel-the first instance in Neff's nearly twenty years of existence-it was also misplaced. Neff addressed the question of whether the constitutional prohibition against double jeopardy would prevent the retrial of an appellant for involuntary manslaughter where the appellant had succeeded in gaining a new trial after arguing that the trial court erred in charging the jury on murder and aggravated assault. Neff, 629 S.W.2d at 760. If Neff is instructive despite its factual dissimilarities, it is not controlling. Neff addressed only whether appellant's trial for aggravated assault barred retrial for involuntary manslaughter; the court did not address voluntary manslaughter. In addition, proof that an aggravated assault was committed intentionally and knowingly encompasses proof that the offense was committed recklessly. See Little v. State, 659 S.W.2d 425, 426 (Tex. Crim. App. 1983).

2. See Lawson v. State, no. 1767-00 slip op. at 8 (Tex. Crim. App. Dec. 5, 2001) (Cochran, J. concurring); Lawson, 26 S.W.3d at 922.