Opinion
No. 05-02-01746-CR
Opinion issued October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-81877-01. AFFIRMED
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
In this appeal, Cody T. Freeland, also known as Cody Freeland, contends the trial court erred by convicting him of felony murder because the underlying deadly conduct felony could not support a murder conviction. We disagree and affirm the trial court's judgment. Appellant was charged by indictment with murder. The third alternative paragraph of the indictment alleged felony murder. It stated appellant
attempt[ed] to commit and did commit a felony, to wit: deadly conduct, and in the course of and in furtherance of the commission or attempt of said felony did . . . intentionally and knowingly commit an act clearly dangerous to human life, to wit: did then and there discharge a deadly weapon, namely: a firearm, at or in the direction of a motor vehicle occupied by Eric Roy, thereby causing the death of Eric Roy. . . .Appellant entered a guilty plea to the indictment. He signed a stipulation, which was admitted into evidence, agreeing that he had committed felony murder as charged in the indictment. Now on appeal, appellant argues in his sole point of error that the trial court erred by convicting him of felony murder because deadly conduct cannot be the underlying felony in a felony murder offense. A person commits felony murder if he commits or attempts to commit a felony, other than manslaughter, and in the course of the commission or attempt he commits an act clearly dangerous to human life that causes the death of an individual. See Tex. Pen. Code Ann. § 19.03(b)(3) (Vernon 2003). 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. Johnson v. State, 4 S.W.3d 254, 258 (Tex.Crim.App. 1999). A person commits manslaughter if he recklessly causes the death of an individual. Id. § 19.04(a). The underlying felony in appellant's case was deadly conduct. A person commits felony deadly conduct if he knowingly discharges a firearm (1) at or in the direction of one or more individuals or (2) at or in the direction of a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied. See id. § 22.05. Appellant contends that deadly conduct is a lesser included offense of manslaughter. An offense qualifies as a lesser included offense only if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). To prove deadly conduct, the State must show that the actor knowingly discharged a firearm, a fact not required to establish the commission of manslaughter. Thus, deadly conduct is a not a lesser included offense of manslaughter under article 37.09(1). Similarly, deadly conduct differs from manslaughter not only because it involves a less serious injury or risk of injury but also because it requires proof of discharging a firearm. Accordingly, it is not a lesser included offense under 37.09(2). Deadly conduct also requires proof of knowing conduct that is not required to prove manslaughter. Because it does not differ from manslaughter only in the respect that a less culpable mental state suffices to establish its commission, it is not a lesser included offense under 37.09(3). Finally, deadly conduct is not simply an attempt to commit manslaughter; therefore it is also not a lesser included offense under 37.09(4). See Yandell v. State, 46 S.W.3d 357, 361 (Tex.App.-Austin 2001, pet. ref'd). Appellant argues that deadly conduct qualifies as a lesser included offense of manslaughter under article 37.09(2) because deadly conduct is a "reckless act that does not result in the loss of life" and manslaughter is a "reckless act that results in the loss of life." This argument ignores the fact that 37.09(2) requires that the lesser included offense differ from the greater offense " only in the respect that a less serious injury or risk of injury" suffices to establish its commission. Tex. Code. Crim. Proc. Ann. art. 37.09(2) (emphasis added). Because deadly conduct differs from manslaughter by requiring proof of knowingly discharging a firearm — an element not required in manslaughter — it is not a lesser included offense under 37.09(2). Moreover, deadly conduct involves a knowing act, not a reckless one. The reckless mental state applies to deadly conduct cases only where the defendant discharges a firearm at or in the direction of a habitation, building, or vehicle. See Tex. Pen. Code. Ann § 22.05(b)(2). In those cases, the defendant must be reckless about the circumstances of the offense, i.e., whether the habitation, building, or vehicle is occupied, rather than reckless in the act itself. See id. Appellant's argument is without merit. We overrule appellant's sole point of error. We affirm the trial court's judgment.
In appellant's case, the indictment, which appellant did not challenge at trial, failed to specifically allege that appellant discharged the firearm at or in the direction of a building, habitation, or vehicle. Under the facts of appellant's case, he could have been guilty of deadly conduct for knowingly discharging a firearm at or in the direction of Eric Roy. That particular offense involves only a knowing mental state. No additional proof of recklessness is necessary, even as to the circumstances surrounding the offense. See id. § 22.05(b)(1).