## Facts

- David Lee Garrett entered a retail store to buy film and became involved in an altercation with the clerk at the cash register.
- Garrett pulled a gun he was carrying, stating he did so to scare the clerk.
- Garrett claimed the gun discharged immediately as he pulled it from his pocket and that he did not intend to shoot the clerk.
- The clerk was shot and died.
- Garrett fled without taking anything and turned himself in shortly thereafter.
- The State’s evidence about the encounter was limited; no eyewitness could describe exactly what occurred, and a young child’s testimony was inconclusive.
- The State prosecuted Garrett for murder under Texas’s felony-murder provision, alleging the predicate felony was aggravated assault on the deceased.

## Issues

1. Whether Texas felony murder under Tex. Penal Code § 19.02(a)(3) applies when the alleged predicate felony is aggravated assault and the assaultive conduct is the same act that caused the victim’s death.
2. Whether felony murder requires felonious conduct separate and distinct from the “act clearly dangerous to human life” that produces the homicide.

## Decision

- The Texas Court of Criminal Appeals reversed the felony-murder conviction.
- The court held that aggravated assault cannot serve as the predicate felony for § 19.02(a)(3) when it is inherent in, and not separate from, the act causing the death.
- Because the alleged aggravated assault and the lethal act were essentially the same conduct, the statutory felony-murder theory failed.

## Legal Principles

- Under Tex. Penal Code § 19.02(a)(3), felony murder uses the culpable mental state for the underlying felony to supply the mens rea for the homicide.
- For felony murder, the conduct constituting the underlying felony must be separate and distinct from the clearly dangerous act that causes death.
- When the only alleged felony is an assaultive offense that is inherent in the homicide itself, § 19.02(a)(3) does not apply.

## Conclusion

Texas felony-murder liability requires proof of an underlying felony involving conduct distinct from the lethal, clearly dangerous act; an aggravated assault that merges with the killing cannot serve as the predicate felony, so Garrett’s felony-murder conviction was reversed.


Garrett v. State, 573 S.W.2d 543 (Tex. Crim. App. 1978)