Opinion
No. 05-04-01248-CR
Opinion Filed October 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00443-T. Affirm.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
OPINION
Appellant appeals his conviction for murder. After finding appellant guilty, the jury assessed punishment at thirty years' confinement. In five points of error, appellant contends (1) the trial court erred in denying his motion to set aside the indictment, (2) the evidence is legally and factually insufficient to support his conviction, (3) appellant was denied his right to a unanimous verdict, (4) appellant received ineffective assistance of counsel, and (5) the trial court erred in failing to instruct the jury under sections 545.151 and 545.155 of the transportation code. For the following reasons, we affirm the trial court's judgment. On January 9, 2004, Dallas Police observed appellant driving a stolen vehicle. When the officers tried to pull appellant over, he fled and a high speed chase ensued. Appellant was going as fast as 100 miles an hour and police almost lost him. Appellant ultimately struck the victim's car, killing her. The grand jury indicted appellant for felony murder. In two separate paragraphs, the indictment alleged appellant did knowingly and intentionally commit a felony offense, and while in the course of the felony, did commit an act clearly dangerous to human life by operating a motor vehicle, a deadly weapon, in excess of the speed limit and at a greater speed than was reasonable under the circumstances and while failing to keep a proper lookout thereby causing the death of the victim. The two paragraphs alleged appellant was in the course of committing different predicate felonies — (1) unauthorized use of a motor vehicle and (2) evading arrest or detention with a vehicle. Appellant filed a motion to quash the paragraph alleging evading arrest as the predicate felony. According to appellant, the felony murder statute is " in pari materia" with the evading arrest statute. The evading arrest statute elevates the offense of evading arrest to a second degree felony if "another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight." See Tex. Pen. Code Ann. § 38.04(b)(3) (Vernon 2003). He asserts the State was permitting to charge him only under the evading arrest statute because it is the more specific statute. The rule of in pari materia is nothing more than a principle of statutory interpretation — a means of determining and giving full effect to legislative intent. Mills v. State, 722 S.W.2d 411, 413 (Tex.Crim.App. 1986). Here, the evading arrest statute itself refutes any legislative intent that the State was required to prosecute appellant for evading arrest in lieu of felony murder. Specifically, the evading arrest statute provides that "a person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and another law." See Tex. Pen. Code Ann. § 38.04(d) (Vernon 2003). We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to support his conviction. In this point, appellant challenges only the evidence to show he killed the victim while committing the offense of unauthorized use of a motor vehicle. Appellant does not challenge the sufficiency of the evidence to show he killed the victim while committing the offense of evading arrest. When the defendant fails to challenge the sufficiency of the evidence to support a independent theory of guilt, he presents no error . See Kitchens v. State, 823 S.W.2d 256, 259 (Tex.Crim.App. 1991). We overrule appellant's second point of error. In his third point of error, appellant contends he was denied his right to a unanimous verdict. As noted above, the jury charged allowed the jury to find appellant guilty if he killed the victim while in the course of committing either evading arrest or unauthorized use of a motor vehicle. According to appellant, the charge deprived him of a unanimous jury verdict because the charge did not require the jurors to agree on which predicate felony he was committing at the time of the offense. Alternative pleading of the differing methods of committing one offense may be charged in the disjunctive. Kitchens, 823 S.W.2d at 258. However, when the State charges different criminal acts, the jury must unanimously agree the defendant committed the same criminal act. Thus, in determining whether a defendant's right to a unanimous verdict was violated, we must determine whether the jury charge alleged different criminal acts or rather alleged a different manner and means of committing the same criminal act. See Ngo v. State, No. PD-0504-04, 2005 WL 600353 (Tex.Crim.App. March 16, 2005). Here, the question of whether appellant committed the murder in the course of evading arrest or unauthorized use goes to how (i.e., the manner and means) he committed murder. See Kitchens, 823 S.W.2d at 257-58; Drew v. State, 76 S.W.3d 436, 457 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Specifically, the jury had to unanimously agree appellant committed each of the statutory elements of murder, i.e. that appellant (1) in the course of and in furtherance of the commission of a felony (2) committed an act clearly dangerous to human life that (3) caused the death of an individual. See Tex. Pen. Code Ann. § 19.02(b)(3) (Vernon 2003). The only difference between the two application paragraphs was the predicate felony appellant was committing. We conclude the two paragraphs merely alleged two manner and means of committing felony murder. Kitchens, 823 S.W.2d at 257-58; Drew, 76 S.W.3d at 457. We overrule appellant's third point of error. In his fourth point of error, appellant contends he received ineffective assistance of counsel. Specifically, he asserts counsel was ineffective for failing to object to the trial court's charge in that it violated his right to a unanimous verdict. We have previously concluded the charge did not violate appellant's right to a unanimous verdict. Thus, counsel was not ineffective for failing to object to the charge on that ground. We overrule appellant's fourth point of error. In his fifth point of error, appellant contends the trial court erred in failing to charge the jury concerning sections 545.151 and 545.155 of the transportation code. See Tex. Transp. Code Ann. §§ 545.151, 545.155 (Vernon 2004 Supp. 2004-05). He asserts a charge on these sections was required because they establish he had the right of way when he hit the victim's car. The charge required the jury to find appellant committed the offense by committing an act clearly dangerous to human life in that he (1) traveled in excess of the speed limit, (2) at a greater speed than was reasonable or prudent under the circumstances, or (3) failing to keep a proper lookout. Appellant requested that the trial court charge the jury on sections 545.151 and 545.155 of the transportation code because these provisions would have established that he had the right of way at the time of the collision. He further asserted that if he had the right of way, he had "no duty" to keep a proper look out. On appeal, appellant adds the jury could have found he did not cause the victim's death if he had the right of way. Initially, we cannot agree with appellant's premise that a driver with the right of way has no duty to keep a proper look out. Moreover, whether appellant had the right of way is not a defense to the charged offense and would, at best, arguably show he did not commit an act clearly dangerous to human life or did not cause the victim's death. A defense which is not recognized by the legislature either as a defense or as an affirmative defense and does no more than negate an element of the charged offense does not warrant a separate instruction. Giesberg v. State, 984 S.W.2d 245, 250-51 (Tex.Crim.App. 1998). We overrule appellant's fifth point of error. We affirm the trial court's judgment.
Appellant seems to argue he was charged with two entirely different criminal offenses because the elements of unauthorized use of a motor vehicle are entirely different from the elements of evading arrest. Appellant's argument ignores the fact appellant was not charged with those offenses, but rather with felony murder.