Chapter 19
Criminal Homicide
19.4 Instruction—Murder (Felony Murder)
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of murder.
Relevant Statutes
A person commits the offense of murder if the person commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
[Insert statutes based on specific felony allegations, e.g., A person commits the offense of felony injury to a child if he intentionally, knowingly, or recklessly, by an act, causes bodily injury to a child fourteen years old or younger.]
[Insert specific felony alleged in the indictment, e.g., Injury to a child] is a felony other than manslaughter.
[Include the following if an instruction on causation is appropriate but no issue of concurrent causation is raised by the facts.]
A person causes the death of another if, but for the person’s conduct, the death of the other would not have occurred.
[Include the following if the facts raise an issue concerning concurrent causation.]
A person causes the death of another if, but for the person’s conduct operating either alone or concurrently with another cause, the death of the other would not have occurred, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the person was clearly insufficient.
Definitions
[Include definition(s) of the felony or felonies alleged in the indictment, such as the following.]
Felony Injury to a Child
The felony of “injury to a child” has four elements. The elements are that—
- the defendant engaged in an act;
- the defendant by this act caused bodily injury to another person;
- the person injured was a child fourteen years old or younger; and
- the defendant intentionally, knowingly, or recklessly caused bodily injury to the child.
Intentionally Causing Bodily Injury
A person intentionally causes bodily injury to another if it is the person’s conscious objective or desire to cause the bodily injury to another.
Knowingly Causing Bodily Injury
A person knowingly causes bodily injury to another if the person is aware that the person’s conduct is reasonably certain to cause the bodily injury to another.
Recklessly Causing Bodily Injury
A person recklessly causes bodily injury to another if the person is aware of but consciously disregards a substantial and unjustifiable risk that the person’s action will cause bodily injury to another. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
Bodily Injury
“Bodily injury” means physical pain, illness, or any impairment of physical condition.
Attempt to Commit a Felony
A person attempts to commit a felony when, with specific intent to commit the felony, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the felony intended.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], committed or attempted to commit [insert specific felony, e.g., injury to a child by intentionally, knowingly, or recklessly causing bodily injury] [insert specific allegations, e.g., by hitting [name], a child fourteen years old or younger, with a blunt object]; and
- in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt of [insert specific felony, e.g., injury to a child], the defendant committed or attempted to commit an act clearly dangerous to human life [insert specific act, e.g., by hitting [name] with a blunt object]; and
- the act clearly dangerous to human life caused the death of [name].
You are instructed that [insert specific felony alleged in the indictment, e.g., injury to a child] is a felony other than manslaughter.
[Include the following if the jury was instructed in the relevant statutes unit on concurrent causation.]
The state has the burden of proving that the defendant caused the death of [name]. To prove that the defendant caused the death of [name], the state must show, beyond a reasonable doubt, that either—
- [concurrent cause] did not contribute to causing the death of [name]; or
- [concurrent cause] was clearly insufficient, by itself, to cause the death of [name]; or
- the conduct of the defendant was clearly sufficient to cause the death of [name] regardless of [concurrent cause].
[Continue with the following.]
You must all agree on elements 1, 2, and 3 of the offense of murder listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must find the defendant “guilty.”
[Include the following if applicable.]
This case alleges that the defendant committed or attempted to commit multiple felonies. You need not be unanimous about which of the named felonies constitutes the felony referred to in elements 1 and 2 listed above, as long as every juror finds that the state has proved, beyond a reasonable doubt, that the defendant committed “a felony.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
The court of criminal appeals has determined that the underlying felony for a felony murder conviction and the act that constitutes “an act clearly dangerous to human life” under Texas Penal Code section 19.02(b)(3) can be the same act. Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999) (defendant’s felony murder conviction was properly predicated on offense of injury to a child, in violation of Penal Code section 22.04, even though defendant’s acts of hitting child victim with deadly weapon, which formed offense of injury to a child, were same acts relied on by state to prove defendant’s commission of “an act clearly dangerous to human life” under felony murder provision). The court in Johnson expressly disavowed “our overly broad statement in Garrett that in order to support a conviction under the felony murder provision, ‘[t]here must be a showing of felonious criminal conduct other than the assault causing the homicide.’ ” Johnson, 4 S.W.3d at 258 (quoting Garrett v. State, 573 S.W.2d 543, 546 (Tex. Crim. App. 1978)). Garrett was limited to the proposition that a conviction for felony murder will not stand when the underlying felony is manslaughter or a lesser included offense of manslaughter.
Whether a felony is a lesser included offense of manslaughter is determined by applying Texas Code of Criminal Procedure article 37.09. The court of criminal appeals has strictly construed the lesser-included analysis and found several offenses not to constitute lesser included offenses of manslaughter for purposes of the felony-murder statute. For example, an intentional and knowing aggravated assault, in violation of Penal Code sections 22.01(a)(1) and 22.02(a), is not a lesser included offense of manslaughter and therefore can serve as the predicate offense for a felony murder. Lawson v. State, 64 S.W.3d 396 (Tex. Crim. App. 2001). “Because the victim’s status as a child is necessarily an element of the offenses of injury to a child and child endangerment, and that element is not within (or deducible from) the statutory elements of manslaughter, the offenses of injury to a child and child endangerment are never lesser-included offenses of manslaughter for the purpose of the felony-murder statute’s manslaughter exclusion.” Fraser v. State, 583 S.W.3d 564, 565 (Tex. Crim. App. 2019). Felony DWI, in violation of Penal Code section 49.02, is not a lesser included offense of manslaughter and therefore can be the underlying felony in a felony-murder prosecution. Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007).
The court has also held that the felony-murder statute itself plainly dispenses with a culpable mental state. Lomax, 233 S.W.3d at 304–07 (reversing in part Rodriquez v. State, 548 S.W.2d 26 (Tex. Crim. App. 1977)). Whether the underlying felony requires a culpable mental state depends on that felony itself; felony DWI plainly dispenses with proof of a culpable mental state. Lomax, 233 S.W.3d at 304 n.6, 307.
The court of criminal appeals held that when an indictment for felony murder alleges multiple predicate felonies, the specifically named felonies are not elements about which a jury must be unanimous, but rather the named felonies constitute the manner or means that make up the “felony” element of felony murder. White v. State, 208 S.W.3d 467 (Tex. Crim. App. 2006) (where evidence showed that appellant caused victim’s death during high-speed chase with police, jury need not be unanimous about whether defendant committed state-jail felony of unauthorized use of a vehicle or state-jail felony of evading arrest or detention in vehicle). The White court further held that due process was not violated by dispensing with unanimity because the two underlying felonies in that case were “basically morally and conceptually equivalent.” White, 208 S.W.3d at 469 (citing Jefferson v. State, 189 S.W.3d 305, 313–14 (Tex. Crim. App. 2006) (Cochran, J., concurring)).
Venue is appropriate either in the county in which the act occurred or the county in which the victim died. See Tex. Code Crim. Proc. art. 13.07. The above charge assumes that the case is being charged where the felony occurred. If the case is brought where the victim died, and this is a different county than that in which the act occurred, the first and third paragraphs of the application of law to facts unit should be modified.
The definition of “bodily injury” is provided in Penal Code section 1.07(a)(8). The culpable mental states are detailed in Penal Code section 6.03.
The Committee has not provided a definition of “act clearly dangerous to human life” because it could find no definitive decision approving one. A court does not err in refusing to instruct the jury on a term left undefined by the legislature if the terms have a common and ordinary meaning. See Depauw v. State, 658 S.W.2d 628, 634–35 (Tex. App.—Amarillo 1983, pet. ref’d) (holding that the term “act clearly dangerous to human life” is not a special or technical term which a jury is incapable of understanding absent court instruction, so the court did not err in refusing to instruct the jury on that term). In addition, the court of criminal appeals has distinguished acts, for which a person can be liable for felony murder, from omissions, for which one cannot, and practitioners are cautioned to be mindful of the distinction. See Rodriguez v. State, 454 S.W.3d 503 (Tex. Crim. App. 2014, on reh’g, Feb. 25, 2015).