     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00408-CR



                                  Hue-Jun Yandell, Appellant

                                                v.

                                  The State of Texas, Appellee




      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
          NO. 50,635, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING




               A jury found appellant Hue-Jun Yandell guilty of murder and assessed punishment

at imprisonment for thirty years. Appellant brings forward six issues or points of error urging that

he could not be convicted of felony murder, and that the evidence is legally and factually

insufficient to sustain a conviction for either intentional murder or murder in the course of

committing an act clearly dangerous to human life. See Tex. Penal Code Ann. § 19. 02(b) (West

1994). We will overrule these contentions and affirm.


                                        BACKGROUND

               At some time between the hours of 9:00 p.m. and 2:00 a.m. on November 7 and

8, 1999, there was a confrontation between Carlo Rossi, in his pickup truck, and the occupants

of a Honda Accord belonging to the deceased, Hector Duarte, Jr. According to Rossi, the Accord

pulled up beside him at a stop light. The occupants of the Accord had crowbars and weapons.
As Rossi drove away after the light changed, the Accord passed him. An object thrown from the

Accord struck Rossi’s truck, denting it. One of the occupants of the Accord, Marco Sanchez,

testified that he and Duarte exchanged words with Rossi at the stoplight, but denied that they

threw anything at him.

               At around 2:30 a.m., Rossi and several of his friends, including appellant, Jose

Ochoa, and Michael Shaw, undertook to find the Accord. They were in appellant’s Mazda, which

Ochoa drove because appellant had been drinking. After two hours of looking, they spotted the

Accord at a convenience store. At this point, the Accord was occupied by Duarte, who was

driving, Sanchez, and Joshua Plummer. Ochoa attempted to block the Accord’s exit with the

Mazda, but was unsuccessful. The Accord drove away from the store, pursued by the Mazda.

               Appellant and his companions saw that Sanchez and Plummer were armed with a

baseball bat and a metal pipe. Appellant testified that he was afraid of being beaten, and that he

took out the .45 caliber pistol he kept under his passenger seat after something was thrown from

the Accord. Rossi, Ochoa, and Shaw testified that they urged appellant not to shoot and to put

the gun away; appellant confirmed this. Disregarding the urgings of his companions, appellant

rested the muzzle of the pistol on the Mazda’s outside mirror and fired three shots at the Accord.

Appellant claimed he was shooting at the Accord’s tires. One of the bullets struck Duarte in the

head. The Accord swerved and struck a parked vehicle. The Mazda sped away, and appellant

threw his pistol into a vacant lot. Duarte died three days later.

               Appellant insisted that he did not intend to shoot anyone and denied deliberately

shooting into the passenger compartment of the Accord. Appellant said that he thought the driver


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of the Accord had lost control, perhaps because a tire had been punctured, and did not realize until

later that Duarte had been shot.

                  The indictment contained three paragraphs, each accusing appellant of murdering

Duarte under one of the three statutory forms of the offense. Paragraph one alleged that appellant

“intentionally and knowingly cause[d] the death of an individual, Hector Duarte, Jr., by shooting

him in the head with a deadly weapon, to-wit: a firearm.”            See Tex. Penal Code Ann.

§ 19.02(b)(1). Paragraph two alleged that appellant, “intending to cause serious bodily injury”

to Duarte, “commit[ted] an act clearly dangerous to human life, to-wit: did then and there fire a

deadly weapon, to-wit: a firearm at an automobile being driven by the said Hector Duarte, Jr.,

thereby causing the death of the said individual.” See id. § 19.02(b)(2). Paragraph three alleged

that appellant:


       attempt[ed] to commit and did commit a felony, to-wit: deadly conduct and in the
       course of and in the furtherance of and in the immediate flight from the said felony
       did then and there intentionally and knowingly attempt to commit and did commit
       an act which was clearly dangerous to human life, to-wit: did then and there fire
       a deadly weapon, to-wit: a firearm at a motor vehicle occupied by Hector Duarte,
       Jr., which said act cause the death of Hector Duarte, Jr.


See id. § 19.02(b)(3).


                                   FELONY MURDER ISSUES

                  Appellant moved to quash paragraph three of the indictment on the ground that

deadly conduct cannot be the underlying offense in a prosecution for felony murder.

Alternatively, appellant urged that paragraph three was defective because it failed to allege the


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culpable mental state for deadly conduct. Appellant also advanced the latter argument in an

objection to the jury charge. The overruling of the motion to quash and of the objection to the

charge are the subjects of appellant’s fourth, fifth, and sixth points of error.


Can deadly conduct underlie felony murder?

               A person commits felony murder if he:


       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.


Tex. Penal Code Ann. § 19.02(b)(3) (emphasis added).

               In one of its first opinions construing the felony murder statute, the court of

criminal appeals indicated that it contained a general “merger doctrine” under which a prosecution

for felony murder could not be maintained if the homicidal act was included in the underlying

felony. See Garrett v. State, 573 S.W.2d 543, 546 (Tex. Crim. App. 1978). The court wrote,

“There must be a showing of felonious criminal conduct other than the assault causing the

homicide.” Id. The court recently disavowed this language, holding that “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.”

Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999). It is appellant’s contention that

deadly conduct is a lesser included offense of manslaughter and therefore cannot underlie a

conviction for felony murder.


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               In Rodriguez v. State, 953 S.W.2d 342, 354 (Tex. App. SAustin 1997, pet. ref’d),

this Court concluded that deadly conduct could serve as the underlying offense for felony murder.

We based this conclusion on a holding that under the plain language of section 19.02(b)(3), only

manslaughter was excluded as an underlying felony. Our interpretation of the felony-murder

statute must yield to that of the court of criminal appeals. Rodriguez does not speak to the

question of whether deadly conduct is a lesser included offense of manslaughter.

               In Texas, a lesser included offense is defined by statute. See Tex. Code Crim.

Proc. Ann. art. 37.09 (West 1981).        In each of the four subdivisions of article 37.09, the

purported lesser included offense is compared to the offense for which the accused is on trial in

order to determine if the accused is entitled to a jury instruction authorizing his conviction for the

lesser offense. See id. But under Johnson, the question is not whether the underlying offense is

included within the charged offense of felony murder, but whether it is included within the offense

of manslaughter. And the purpose of the question is not to determine whether the accused is

entitled to an instruction authorizing his conviction for the lesser offense, but to determine whether

that offense may serve as the underlying offense for felony murder under section 19.02(b)(3).

The application of article 37. 09 in the Johnson context therefore requires a comparison of the

elements of the underlying offense alleged in the felony-murder indictment with the statutory

elements of manslaughter.

               A person commits manslaughter if he “recklessly causes the death of an

individual.” Tex. Penal Code Ann. § 19.04 (West 1994). A person commits felony deadly

conduct if he “knowingly discharges a firearm at or in the direction of: (1) one or more


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individuals; or (2) a habitation, building or vehicle and is reckless as to whether the habitation,

building, or vehicle is occupied.” Tex. Penal Code Ann. § 22.05(b), (e) (West 1994). 1 In this

cause, the State alleged that appellant killed Duarte in the course of committing deadly conduct

under section 22.05(b)(2), i. e. , in the course of discharging a firearm at a vehicle occupied by

Duarte.

               An offense is a lesser included offense if it is established by proof of the same or

less than all the facts required to establish the commission of the greater offense. See Tex. Code

Crim. Proc. Ann. art. 37.09(1). To prove the alleged deadly conduct under section 22.05(b)(2),

the State was required to prove that appellant knowingly discharged a firearm, a fact not required

to establish the commission of manslaughter.

               An offense is a lesser included offense if it differs from the greater offense 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. See Tex. Code Crim. Proc. Ann. art. 37.09(2).

While deadly conduct under section 22.05(b)(2) involves a less serious injury than manslaughter,

it also differs from manslaughter because it requires proof that the accused knowingly discharged

a firearm.

               An offense is a lesser included offense if it differs from the greater offense only in

the respect that a less culpable mental state suffices to establish its commission. See Tex. Code




   1
      Another theory of the offense is only a class A misdemeanor. See Tex. Penal Code Ann.
§ 22.05(a), (e) (West 1994).

                                                 6
Crim. Proc. Ann. art. 37.09(3). Deadly conduct under section 22.05(b)(2) requires proof of

knowing conduct, a more culpable mental state than the recklessness required for manslaughter.

               An offense is a lesser included offense if it consists of an attempt to commit the

greater offense. See Tex. Code Crim. Proc. Ann. art. 37.09(4). An attempt requires the specific

intent to commit the offense attempted. Tex. Penal Code Ann. § 15.01(a) (West 1994). A

specific intent to commit manslaughter is not an element of deadly conduct under section

22.05(b)(2). In any event, it is impossible to specifically intend to recklessly kill another. See

Gonzales v. State, 532 S.W.2d 343, 345 (Tex. Crim. App. 1976).

               We conclude that the deadly conduct offense alleged in the indictment was not a

lesser included offense of manslaughter. Under Johnson, appellant could be prosecuted for felony

murder based on a homicide committed during the course of committing the alleged deadly

conduct. Point of error four is overruled.


Must the elements of the underlying offense be alleged?

               Appellant also urges that paragraph three of the indictment was defective because

it failed to allege the culpable mental state for the underlying offense of deadly conduct. Deadly

conduct under section 22.05(b)(2) contains two culpable mental states: the actor must knowingly

discharge a firearm at or in the direction of a vehicle and must be reckless as to whether the

vehicle is occupied. See Tex. Penal Code Ann. § 22.05(b)(2).

               Paragraph three alleged that appellant, in the course of committing deadly conduct,

intentionally and knowingly committed an act clearly dangerous to human life, “to-wit: did then



                                                7
and there fire . . . a firearm at a motor vehicle occupied by Hector Duarte, Jr. ” Because the

alleged dangerous act was the discharge of a firearm at a vehicle, the allegation that appellant

committed the dangerous act intentionally and knowingly also constituted an allegation that

appellant knowingly discharged the firearm at the vehicle. Appellant’s contention that this

element of deadly conduct was not alleged in the indictment is without merit.

               Paragraph three did not allege that appellant was reckless as to whether the vehicle

was occupied. The State argues that this omission was not error because the elements of the

underlying offense need not be alleged in an indictment for felony murder. The State argues by

analogy to capital murder in the course of committing a felony. See Tex. Penal Code Ann.

§ 19.03(a)(2) (West 1994). It has been held that the State is not required to allege the constituent

elements of the underlying felony in an indictment pursuant to section 19.03(a)(2), even if the

accused files a motion to quash. See Barnes v. State, 876 S.W.2d 316, 323 (Tex. Crim. App.

1994); Hammett v. State, 578 S.W.2d 699, 707-08 (Tex. Crim. App. 1979). “Under the new

Penal Code, an indictment charging one offense during the commission of another crime need not

allege the elements of the latter offense. ” Hammett, 578 S.W.2d at 708. This statement appears

to dispose of appellant’s contention.

               Assuming for the sake of argument that the indictment should have alleged that

appellant was reckless as to whether Duarte’s vehicle was occupied, the omission did not prejudice

appellant’s substantial rights. See Tex. Code Crim. Proc. Ann. art. 21.19 (West 1989); Adams

v. State, 707 S.W.2d 900, 904 (Tex. Crim. App. 1986); see also Tex. R. App. P. 44.2(b). “The

important question is whether a defendant had notice adequate to prepare his defense.” Adams,


                                                 8
707 S.W.2d at 903. The record reflects that appellant was fully aware of the crime for which he

was accused and the factual allegations on which that accusation rested, and appellant does not

contend that his defense was impaired by the wording of the indictment.

               Appellant argues that because the underlying felony provides the culpable mental

state for felony murder, it is necessary to allege the culpable mental state of the underlying felony

in a felony-murder indictment. See Lamb v. State, 680 S.W.2d 11, 15 (Tex. Crim. App. 1984);

Rodriguez v. State, 548 S.W.2d 26, 28-29 (Tex. Crim. App. 1977). But the legal convention by

which the underlying felony provides the culpable mental state for felony murder is inherent in

the statutory definition of the offense, and is not dependant on the wording of the indictment in

a particular case. See Rodriguez, 953 S.W.2d at 349-50 (discussing legislature’s authority to

define elements of felony murder). The failure to allege an element of an offense no longer

renders the indictment fundamentally defective. See Studer v. State, 799 S.W.2d 263, 272 (Tex.

Crim. App. 1990).

               If the omission of the recklessness element of section 22.05(b)(2) was a defect in

the indictment, and if the district court therefore erred by overruling the motion to quash

paragraph three, the error did not prejudice appellant’s substantial rights. Point of error five is

overruled.

               In his sixth point of error, appellant urges that because of the alleged defect in

paragraph three of the indictment, the district court should not have authorized his conviction for

felony murder. Appellant argues that because the indictment did not allege the culpable mental

state required for deadly conduct (an allegation we have found to be only partly correct), and


                                                 9
because the underlying felony provides the culpable mental state for felony murder, the court’s

charge had the effect of authorizing his conviction on a theory not alleged.

               Our discussion of the previous point of error also disposes of this point. The

elements of felony murder are defined by statute. The defect in the indictment, if any, did not

prohibit appellant’s conviction for felony murder. The district court did not err by overruling

appellant’s objection to the charge. Point of error six is overruled.


                            SUFFICIENCY OF THE EVIDENCE

               In points of error one, two, and three, appellant contends the evidence is legally

and factually insufficient to sustain his conviction under paragraphs one and two of the

indictment. 2 Appellant argues that the evidence fails to show that he intended to kill or seriously

injure Duarte, as required for a conviction under paragraphs one and two respectively.

               When the indictment alleges alternate theories of committing the same offense, it

is proper for the jury to be charged in the disjunctive and to return a general verdict of guilty.

Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); see Tex. Code Crim. Proc.

Ann. art. 37.07, § 1(a) (West 1981) (verdict must be general). The conviction will be upheld if

the evidence is sufficient to support a finding of guilt under any one of the theories submitted.

Kitchens, 823 S.W.2d at 258; Nevarez v. State, 847 S.W.2d 637, 643 (Tex. App.—
                                                                             El Paso 1993,

pet. ref’d).



    2
       Point three urges that these theories of the offense should not have been submitted to the
jury because there was no evidence to support them. Such a point is effectively a challenge to the
sufficiency of the evidence. See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993).

                                                10
               We have overruled appellant’s points of error by which he asserted that he could

not be prosecuted for felony murder and that the district court erred by submitting that theory of

the offense to the jury. The court properly authorized appellant’s conviction for murder if the jury

found that he intentionally or knowingly killed Duarte, or if the jury found that he committed an

act clearly dangerous to human life with the intent to seriously injure Duarte, or if the jury found

that he intentionally or knowingly committed an act clearly dangerous to human life while in the

course of committing deadly conduct. Appellant admitted that he intentionally fired at Duarte’s

vehicle knowing that it was occupied, and he does not challenge the sufficiency of the evidence

to sustain a verdict of guilty under the felony murder theory. Under the circumstances, we need

not decide if the evidence would sustain a conviction on the other theories of the offense. Points

of error one, two, and three are overruled.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: April 12, 2001

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