                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ____________________
                               NO. 09-11-00207-CR
                              ____________________

                       SHEILA GAYE MUHS, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
_______________________________________________________               _________

                On Appeal from the 253rd District Court
                        Liberty County, Texas
                      Trial Cause No. CR27784
________________________________________________________ _________

                          MEMORANDUM OPINION

      A jury found Sheila Gaye Muhs guilty of the murder of seven-year-old

Donald R. Coffey IV. She received a sentence of life in prison. In five issues,

appellant argues the indictment was defective and the evidence was insufficient to

support her conviction. After a review of the record, we conclude that the issues

raised do not support reversal of the judgment in this case.

      Donald R. Coffey IV’s family and friends traveled in the Coffeys’ off-road

vehicles, a Jeep and a Blazer, to a flooded area in Liberty County where the

                                          1
children swam. That evening, as they were returning, the child’s father drove the

Jeep off the road for a brief stop. The child was riding behind his father in the rear

seat of the Jeep. His mother and others were in the Blazer. The father heard at least

one gunshot. The father, his friend Patrick, and Donald Coffey IV were shot. The

child died as a result of a “[p]erforating firearm projectile” injury to the head.

      Patrick testified that after he was shot, appellant Sheila Muhs approached the

Jeep on her four-wheeler. She cursed at Patrick. She had a gun with her. Neither

Donald (the child’s father) nor Patrick saw who fired the shots.

      Rebecca Coffey, the child’s mother, explained that on the night of the

shooting she was in the Blazer and was following the Jeep. When the Jeep turned

off the road, the Blazer continued on. The Blazer window was shot out and

Rebecca saw her daughter bleeding.

      Just prior to the first gunshot, Patrick’s girlfriend in the Blazer heard a

woman’s voice yell, “Y’all need to get them f-ing vehicles off my land[.]”

Patrick’s girlfriend heard another shot. Rebecca got out of the Blazer, and ran to

find Donald and their son.

      A witness who lived in the same vicinity as the Muhs’s property testified

that on the night of the incident he heard two gunshots about four seconds apart,



                                           2
and that the shots sounded like they came from two different guns. Evidence was

presented that the shots came from the general direction of the Muhs’s property.

      A short while before the shooting, Sheila was visiting her husband Gale, and

was on the front porch of his house. Sheila and her husband were separated and did

not live together. In the call Sheila made to 9-1-1, she admitted taking “a pot shot”

with a 12-gauge shotgun at some people in a Jeep that were tearing up the levee.

      Sheila admitted during an interview in the morning hours after the shooting

that she was “pissed off” to begin with, acted “stupid” and “fl[ew] off the handle,”

and told the people in the Jeep to “get the hell off the lake levee.” She admitted

that she was not “in charge” of the lake levee and that she fired in the “general

direction” of the Jeep.

      In her first four issues appellant argues the indictment is defective. We

address the arguments together as she does in her brief. She argues, “[L]ike

manslaughter, deadly conduct should be eliminated as a possible underlying felony

in a felony murder prosecution because the State in proving deadly conduct has

eliminated its burden of proving an essential element of a murder, namely that the

accused intended to cause injury when committing an act clearly dangerous to

human life which is the essence of felony murder.” The indictment alleged the

following:

                                         3
      SHEILA GAYE MUHS did then and there intentionally or knowingly
      commit or attempt to commit an act clearly dangerous to human life,
      to-wit: discharge or shoot a firearm in the direction of Donald R.
      Coffey, IV, that caused the death of Donald R. Coffey, IV, and the
      defendant was then and there in the course of intentionally or
      knowingly committing a felony, to-wit: Deadly Conduct, and said
      death of Donald R. Coffey, IV, was caused while the defendant was in
      the course of and in furtherance of the commission or attempt of said
      felony[.]

See Tex. Penal Code Ann. §§ 19.02, 22.05(b),(e) (West 2011). She contends that

the indictment as written allowed the State to prove a reckless discharge of a

firearm in the direction of an individual or vehicle, “and prove that the exact same

act was intentionally and knowingly committing or attempting to commit an act

clearly dangerous to human life.” Muhs argues the indictment does not plead

murder, because murder requires proof of intent to cause bodily injury at the time

of the shooting. She did not file a motion to quash the indictment or object to any

alleged errors in the form or substance of the indictment in the trial court. See Teal

v. State, 230 S.W.3d 172, 177-78 (Tex. 2007) (indictment defects waiveable). She

asserts nevertheless that because the same conduct establishing the offense of

deadly conduct proved the offense of felony murder, the indictment lessened the

State’s burden of proof.

      A conviction for felony murder under section 19.02(b)(3) of the Penal Code

will not lie when the underlying felony is manslaughter or a lesser-included

                                          4
offense of manslaughter. Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App.

1999). A person commits manslaughter if she recklessly causes the death of an

individual. Tex. Penal Code Ann. § 19.04(a) (West 2011). Muhs does not argue

that the deadly conduct offense alleged in the indictment is a lesser-included

offense of manslaughter. But she contends that deadly conduct should also be

exempted as an underlying offense to felony murder.

      In Johnson, the Court of Criminal Appeals considered whether a defendant

may be convicted of felony murder “[w]hen the underlying felony is injury to a

child, and the acts that constitute that offense are the same acts that constitute ‘an

act clearly dangerous to human life.’ Tex. Penal Code § 19.02(b)(3).” Johnson, 4

S.W.3d at 254. The appellant argued that “the acts allegedly forming the offense of

injury to a child were the same acts relied upon by the State to prove appellant’s

commission of ‘an act clearly dangerous to human life,’ to wit, hitting the deceased

with a blunt object.” Id. at 255. The Court, however, disavowed a statement in an

earlier opinion that there ‘“must be a showing of felonious criminal conduct other

than the assault causing the homicide.’” Id. at 258 (quoting Garrett v. State, 573

S.W.2d 543, 546 (Tex. Crim. App. 1978)). Because the offense of injury to a child

is not a lesser-included offense of manslaughter, the judgment was affirmed. Id.



                                          5
      Under Johnson, Muhs could be prosecuted for felony murder based on a

homicide committed during the course of committing the deadly conduct alleged in

the indictment. See Yandell v. State, 46 S.W.3d 357, 360-61 (Tex. App.—Austin

2001, pet. ref’d). Deadly conduct may be an underlying felony for felony murder.

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

(“Appellant’s conviction for felony murder under section 19.02(b)(3) with the

underlying felony being deadly conduct (section 22.05) by repeatedly shooting a

firearm into an automobile known to be occupied, an act clearly dangerous to

human life, was proper.”). The indictment here sufficiently alleged the elements of

deadly conduct and felony murder to provide Muhs adequate notice of the charges.

Issues one, two, three, and four are overruled.

      In her fifth issue, Muhs challenges the sufficiency of the evidence

supporting the jury’s verdict. The “Jackson v. Virginia legal-sufficiency standard is

the only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893,

895 (Tex. Crim. App. 2010). We assess all the evidence in the light most favorable

to the verdict to determine whether any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

                                          6
307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007). We give deference to the jury’s responsibility to

fairly resolve conflicting testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.

      Muhs stated in her 9-1-1 call that she saw the Jeep and took a “pot shot,” and

told law enforcement that she saw the Jeep drive off the road and that she fired a

shotgun in the general direction of the Jeep. The shot killed Donald R. Coffey IV.

Muhs knew the Jeep was occupied and she shot at the Jeep because she was upset

that it was on the lake levee. Considering her admissions in light of all the

evidence presented, a jury could reasonably find beyond a reasonable doubt that

Muhs committed the offense of felony murder. Issue five is overruled. The trial

court’s judgment is affirmed.

      AFFIRMED.

                                             ______________________________
                                                     DAVID GAULTNEY
                                                           Justice
Submitted on October 8, 2012
Opinion Delivered March 27, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.




                                         7
