                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                      No. 07-16-00350-CR
                                  ________________________


                         MICHAEL TAYLOR PHILLEY, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 108th District Court
                                      Potter County, Texas
              Trial Court No. 70,448-E; Honorable Douglas R. Woodburn, Presiding


                                             July 14, 2017

                        ORDER FOR ADDITIONAL BRIEFING
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


        Appellant, Michael Taylor Philley, was charged by indictment with the offense

commonly known as “felony-murder.”1 The indictment alleged Appellant “did then and


        1
           TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011). Pursuant to this section, a person commits
the offense of 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. An offense under this section is a first degree felony. Id. at § 19.02(c).
there, while in the course of knowingly committing a felony, namely AGGRAVATED

ASSAULT CAUSING SERIOUS BODILY INJURY, did then and there intentionally or

knowingly commit an act clearly dangerous to human life, namely striking [the victim]

with [Appellant’s] foot, [Appellant’s] hand, [Appellant’s] elbow, a rifle, or a combination

thereof, causing the death of [the victim] . . . .” In a separate paragraph, the indictment

included a “Deadly Weapon Notice.”


       In October 2015, pursuant to a plea bargain, Appellant plead guilty to the “lesser

included offense” of aggravated assault. An aggravated assault may be committed in

two different ways: (1) the actor could commit an assault that causes serious bodily

injury to another, including the person’s spouse, TEX. PENAL CODE ANN. § 22.02(a)(1)

(West 2011); or (2) the actor could commit an assault while using or exhibiting a deadly

weapon during the commission of that assault.           Id. at § 22.02(a)(2).     Because

Appellant’s plea agreement fell under section 22.02(a)(2), rather than section

22.02(a)(1), it appears that the offense may not have been a lesser-included offense to

the offense of murder as alleged in the indictment because the essential elements of an

aggravated assault by the use or exhibition of a deadly weapon would not have been

established by proof of the same or less than all the facts required to establish the

commission of the offense of murder as charged. See TEX. CODE CRIM. PROC. ANN. art.

37.09 (West 2006). Generally, a conviction based on an offense that is not the offense

charged or a lesser-included offense is void. See Ex parte Sewell, 606 S.W.2d 924,

925 (Tex. Crim. App. 1980) (concluding that conviction for theft was void because the

offense was not a lesser-included offense of the offense charged in the indictment).




                                             2
       In the interest of justice, and out of an abundance of fairness to all parties, the

court hereby assigns that issue as potential error and directs both parties to file

additional briefing. Appellant is granted thirty days from the date of this order to file a

supplemental brief and the State is granted thirty days from the date Appellant’s

supplemental brief is filed to file a reply brief. If either side believes oral argument

would assist this court, a request for oral argument may accompany the supplemental

brief or reply.



                                                 Per Curiam



Do not publish.




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