                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                      No. 07-13-00319-CR


                         DUSTIN RYAN RHOADES, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 320th District Court
                                    Potter County, Texas
               Trial Court No. 65,540-D, Honorable Don R. Emerson, Presiding

                                    September 15, 2015

                               CONCURRING OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       I concur with not only the result reached but also the reasoning of my colleagues;

however, I write separately to address the confusion created by the lack of clarity in the

indictment in this case as it pertains to the allegation of the offense commonly referred

to as “felony murder.” I also write to emphasize the fact that when the State relies on

deadly conduct as the underlying felony, it should plead and must prove the knowing

discharge of a firearm. The majority opinion proficiently sets forth the facts of this case;

therefore, I will not repeat those facts at this juncture.
      PROCEDURAL POSTURE


      Appellant, Dustin Ryan Rhoades, was charged by indictment with the murder of

Deans Anderson.     The indictment alleged two alternative theories.       Paragraph one

alleged Appellant “did then and there intentionally and knowingly cause the death of an

individual, namely, Deans Anderson, by shooting him with a firearm.” See TEX. PENAL

CODE ANN. § 19.02(b)(1) (West 2011).         Paragraph two of the indictment alleged

Appellant “did then and there intentionally or knowingly commit or attempt to commit an

act clearly dangerous to human life, to-wit: pointing a firearm at or in the direction of

Deans Anderson, that caused the death of Deans Anderson, and [Appellant] was then

and there in the course of intentionally or knowingly committing a felony, to-wit: Deadly

Conduct, and said death of Deans Anderson was caused while [Appellant] was in the

course of and in furtherance of the commission or attempt of said felony.” See id. at

§ 19.02(b)(3).


      Prior to trial, Appellant filed a motion to quash the indictment wherein he argued

that “[a]s alleged, Deadly Conduct is an act Reckless in its level of culpability, and is

therefore a lesser included offense of Manslaughter . . . .” Appellant goes on to allege

“[t]he Indictment must state a felony other than Manslaughter, and then a separate act

clearly dangerous to human life that causes death. As to both of these arguments,

Appellant was simply incorrect.


      ANALYSIS


      First, the indictment clearly, plainly, and explicitly alleges Appellant intentionally

or knowingly committed the felony offense of deadly conduct. Felony deadly conduct

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can only be committed if the actor knowingly discharges a firearm.              See id. at

§ 22.05(b), (e). Because felony deadly conduct requires the heightened mental state of

“knowingly” and the additional element of discharge of a firearm, it is not a lesser

included offense of manslaughter as alleged by Appellant. See Washington v. State,

417 S.W.3d 713, 722 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Yandell v.

State, 46 S.W.3d 357, 361 (Tex. App.—Austin 2001, pet. ref’d.)).


       Secondly, as more fully discussed in the majority opinion, in order to constitute

the offense of felony murder, the act that must be “clearly dangerous to human life that

causes death” does not have to be (although it can be) an act separate and

distinguishable from the offense of deadly conduct. When, however, the underlying

offense is deadly conduct, it must be felony deadly conduct, i.e., it must involve the

knowing discharge of a firearm.       Washington, 417 S.W.3d at 721 (“discharged a

firearm”); Miles v. State, 259 S.W.3d 240, 247 (Tex. App.—Texarkana 2008, pet. ref’d)

(“shooting a firearm”); Yandell, 46 S.W.3d at 361 (“discharged a firearm”); Rodriguez v.

State, 953 S.W.2d 342, 354 (Tex. App.—Austin 1997, pet. ref’d) (“shooting a firearm”).


       In his motion to quash, Appellant failed to complain about the fact that the

indictment did not state how he committed the felony offense of deadly conduct. This is

perhaps due to Appellant’s failure to clearly distinguish between separate elements of a

felony murder: (1) commission or attempted commission of an act clearly dangerous to

human life that causes the death of an individual, in the course of and in furtherance of

(2) the commission or attempted commission of a felony. In this case paragraph two of

the indictment alleged how Appellant committed an act clearly dangerous to human life,

to-wit: pointing a firearm at the victim, but it did not allege how he committed the offense

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of felony deadly conduct. Because Appellant’s motion to quash did not address this

deficiency, the trial court did not err in denying his motion to quash and, as more fully

detailed in the majority opinion, the evidence presented was legally sufficient to

establish the commission of felony deadly conduct.


       CONCLUSION


       In future indictments where the State relies upon deadly conduct as the

underlying felony in a felony murder indictment, it would be well advised to specify how

the defendant committed the offense of deadly conduct. Likewise, when in doubt, a

defendant should be more specific when questioning the sufficiency of an indictment.

Finding no reversible error, I concur in the decision of the majority to affirm the judgment

of the trial court.


                                                        Patrick A. Pirtle
                                                            Justice


Do not publish.




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