## Facts

- Albert Ray Rodriguez, age 17, fired a .45-caliber handgun multiple times at a red Pontiac Firebird occupied by James Beaty (front passenger), Michelle Esquivel (driver), and Joseph Gonzales (rear passenger) as it passed Rodriguez’s parents’ home in Austin.
- Beaty was killed and Esquivel was wounded; Gonzales was unharmed.
- Rodriguez testified he bought the handgun the night before and obtained ammunition earlier the day of the shooting.
- Rodriguez stated the car passed once or twice before the shots; when it slowed and he recognized Beaty, he “panicked” and fired “perhaps eight times,” aiming at the driver’s door.
- Rodriguez claimed he feared Beaty based on prior threats and earlier shootings directed at Rodriguez or his family home.
- The State prosecuted Rodriguez for felony murder under Texas Penal Code § 19.02(b)(3), using deadly conduct (discharging a firearm at an occupied vehicle) as the underlying felony.
- A jury convicted Rodriguez and assessed punishment at 50 years’ imprisonment and a $4,000 fine.

## Issues

1. Whether Texas Penal Code § 19.02(b)(3) permits felony murder when the predicate felony is deadly conduct based on the same shooting that caused the death, or whether a felony-murder “merger doctrine” bars using that assaultive act as the underlying felony.
2. Whether the trial court erred by instructing the jury on felony murder with deadly conduct as the predicate felony.

## Decision

- The court of appeals affirmed the conviction.
- The court held deadly conduct may serve as the predicate felony for felony murder under § 19.02(b)(3), even if the deadly conduct consists of the same shooting that caused the homicide.
- The court rejected application of a broad merger doctrine beyond the statute’s express exclusion of manslaughter.
- The court concluded the felony-murder jury instruction using deadly conduct as the underlying felony was legally proper.
- Discretionary review was refused.

## Legal Principles

- Under Texas Penal Code § 19.02(b)(3), the predicate offense for felony murder may be any felony “other than manslaughter”; courts will not create additional categorical exclusions not found in the statutory text.
- Texas does not apply a generalized felony-murder merger doctrine to bar use of assaultive felonies as predicate felonies when the statute does not exclude them.
- Deadly conduct, including discharging a firearm at an occupied vehicle, can constitute the predicate felony for felony murder when a death occurs “in the course of and in furtherance of” that felony through an act clearly dangerous to human life.

## Conclusion

The court upheld Rodriguez’s felony-murder conviction, ruling that deadly conduct could serve as the predicate felony under § 19.02(b)(3) and that Texas law does not recognize a merger-based limitation beyond the statute’s explicit exclusion of manslaughter.


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