NO. 1767-00








Johnson, J., filed a dissenting opinion in which Meyers, J. joins.

D I S S E N T I N G  O P I N I O N

I join Judge Meyers's dissent.

The majority argues that because the state alleged that the assault in the instant case was committed "intentionally and knowingly," but not "recklessly," and because manslaughter includes the culpable mental state of "recklessly," the aggravated assault in this case is not a lesser-included offense of manslaughter; thus, it concludes that the merger doctrine is inapplicable here. Ante, at ___ (slip op. at 3). This holding ignores both statutes and case law.

While the majority bases its decision on mental state, the ground for review did not specifically raise that issue: "The court of appeals erred in holding that the felony-murder doctrine, as codified in Sec. 19.02(b)(3), applied when the precedent felony was an aggravated assault, on the same person, and the very same act which caused the homicide." Because the majority focuses on culpable mental states, it fails to recognize that, although an assault may very well be intentional or knowing, the very essence of manslaughter is that the death resulted from recklessness. Proving an intentional mental state as to the assault does not disprove recklessness as to causing the death of the assaulted individual. It is easy to imagine a situation in which the assailant intended to assault an individual, with no desire to cause death, but "consciously disregard[ed] a substantial and unjustifiable risk" of death, Tex. Pen. Code 6.03(c), and in fact caused the death of the individual recklessly. Determining the mental state for one offense has no bearing on determining the mental state for the other.

More to the point, art. 37.09(2) of the Texas Code of Criminal Procedure provides that "[a]n offense is a lesser included offense if . . . it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person . . . suffices to establish its commission." Under art. 37.09(2), aggravated assault is a lesser-included offense of manslaughter because the only difference is a less serious injury or risk of injury to the same person; when the state proves manslaughter, it will also necessarily prove aggravated assault, physical injury being a less serious injury than death. Therefore, the assault in the instant case is a lesser-included offense of manslaughter, and pursuant to the so-called "merger doctrine," a conviction for felony murder is prohibited. Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 2000) (eight judges joining majority opinion, one concurring in the judgment); Tex. Pen. Code 19.02(b)(3).

Today's decision effectively abolishes the merger doctrine that is mandated by statute, see 19.02(b)(3), and that we delineated and clarified only two years ago in Johnson, supra. (1) Under the majority opinion, the merger doctrine can always be avoided simply by doing as the state did in this case: charge felony murder by charging manslaughter and aggravated assault, but omit the term "recklessly" from the aggravated assault charge. In this way, the state will always be able to charge felony murder, even when the evidence shows only manslaughter or a lesser-included offense of manslaughter. As noted above, this effectively overrules Johnson, supra, and judicially nullifies the legislative mandate of 19.02(b)(3).

Because today's opinion overrules, sub silentio, a decision only two years old, while purporting to follow it, and because it ignores legislative mandates concerning both the merger doctrine and the statutory definition of lesser-included offense, I dissent.

Johnson, J.

Date Delivered: December 5, 2001


1. The concurring opinion asks, "Is Garrett the law in Texas today? Does the judicially created merger doctrine still apply in Texas felony murder cases?" Ante, at ___ (slip op. at 8) (Cochran, J., concurring). However, we specifically answered these questions in Johnson, 4 S.W.3d at 258: "We hold Garrett did not create a general 'merger doctrine' in Texas. The doctrine exists only to the extent consistent with section 19.02(b)(3). Thus, Garrett hereinafter stands only for the proposition that a conviction for felony murder under section 19.02(b)(3), will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter. This holding is consistent with the plain meaning of the felony murder provision."