1998-02-21

Lawson v State

source
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26 S.W.3d 920 (Tex.App.-Amarillo 2000)

SCOTT MATTISON LAWSON, Appellant
v.
THE STATE OF TEXAS, Appellee

NO. 07-98-0397-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO

SEPTEMBER 11, 2000

FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY; NO. CR-98C-030; HON. DAVID WESLEY GULLEY, PRESIDING

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Before BOYD, C.J., and QUINN and REAVIS, JJ.

OPINION

Brian Quinn, Justice

Scott Mattison Lawson appeals his conviction for murder.1 In his sole point of error he argues that the merger doctrine applicable to the felony murder rule requires a reversal because the State improperly alleged aggravated assault as the offense precedent to the murder. We affirm once again.

Background

On February 21, 1998, appellant, Lee Rogers, and several other individuals were together at a friend's home drinking beer. At some point during the group's revelry, appellant and Rogers got into an argument that eventually deteriorated into a fist fight. During the fray, appellant drew a knife and stabbed Rogers several times in the arms, buttocks and legs. One of the blows severed Rogers's right common iliac vein, which resulted in his bleeding to death.

Thereafter, appellant was indicted for murder under section 19.02(b)(3) of the Texas Penal Code. In pertinent part, the indictment stated that he:

did . . . intentionally and knowingly cause and attempt to commit a felony, to-wit: Aggravated Assault, and in the course of and in furtherance of the commission or attempt, . . . [appellant] did commit an act clearly dangerous to human life, to-wit: stabbed LEE ROGERS with a knife and caused the death of LEE ROGERS . . . .

While lodging no objection to the indictment, appellant asserted in a motion for instructed verdict that he could not properly be charged with murder. This was allegedly so because some offense other than the assault which ultimately caused death had to have been pled as the predicate offense. Otherwise, he could not be convicted of felony murder. He renews that argument here.

Analysis

The Penal Code contains three modes through which a murder can be committed. The one applicable here is described under section 19.02(b)(3) of the Code and is commonly known as felony murder. Thereunder, one can be convicted of murder if he causes the death of an individual while committing an act clearly dangerous to human life in furtherance of the commission

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or attempted commission of a felony other than manslaughter. Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 1994). As can be seen, the state legislature deigned to exclude only manslaughter from the category of felonies which may serve as the predicate offense. Nothing is said of any other.

Yet, through...