I respectfully dissent. Appellant was convicted of capital murder. He was alleged to have committed capital murder because he "commit[ed] murder as defined under [Tex. Pen. Code § 19.02(b)(1)] and...[he] intentionally commit[ed] the murder in the course of committing... burglary." Tex. Pen. Code § 19.03(a)(2). Burglary is defined, in relevant part, as "without the effective consent of the owner...enter[ing] a habitation...with intent to commit [or committing or attempting to commit] a felony." Tex. Pen. Code § 30.02(a)(1) & (3). In this case, the felony alleged was the murder itself. In other words, appellant was alleged to have committed capital murder, i.e., murder in the course of burglary, with the predicate felony for the burglary the same murder of the same victim.

As the majority acknowledges, this appears to be a case of "bootstrapping" to get a charge of capital murder. Ante, at ___ (slip op. at 6). The majority dismisses this claim by citing to Fearance v. State, 771 S.W.2d 486, 492-93 (Tex. Crim. App. 1988), cert. denied, 492 U.S. 927, 109 S. Ct. 3266, 106 L. Ed.2d 611 (1989). Although there is some support in Fearance for this claim, there is little in the way of logic to support that precedent.

In Fearance, the indictment alleged two possible theories of capital murder: murder in the course of a burglary, for which the predicate was theft; and murder in the course of burglary, for which the predicate was the same murder. Fearance, 771 S.W.2d at 492 n.1. In sustaining the conviction, we stated, in part, that

the indictment alleged and the proof showed that [the defendant] was engaged in felonious criminal conduct, specifically, burglary at the time Larry Faircloth was murdered. This conduct was a property offense. Therefore, there was a showing of felonious criminal conduct other than the assault which caused the death of Larry Faircloth.

Fearance, 771 S.W.2d at 493 (emphasis added). This appears to sustain the conviction on the basis of the first theory of capital murder, i.e., the one in which the predicate for the burglary was a theft which was separate and part from the murder. This rationale is supported by the following: (1) the fact that we detailed a burglary-by-theft which the defendant had allegedly committed earlier the same evening that Faircloth was murdered, at a residence near Faircloth's (id. at 490); (2) our reliance upon Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1987). In Aguirre, we stated that

The [defendant] testified at trial that on the day of the offense he had gone to his ex-wife's home to speak to her about leaving the children alone at night. When his ex-wife refused to let him into the house, [the defendant] went to his truck and retrieved his shotgun. He testified that he shot at the door in order to open it and did not consider the fact that someone could have been behind the door. Unbeknownst to [the defendant], one of his children was standing behind the door and was killed by the blast fired from [the defendant's] shotgun.

If indeed, the [defendant] was engaged in felonious criminal conduct, that is committing felony criminal mischief by attempting to blow open a door with a shotgun, this conduct was clearly a property offense. In the furtherance of this offense, the deceased was shot and killed. Unlike the situation in Garrett v. State, [573 S.W.2d 543 (Tex. Crim. App.1978)], the [defendant's] act of criminal mischief and the deceased's resulting homicide were not one in the same.

Aguirre, 732 S.W.2d at 325 (emphases added); see also Fearance, 771 S.W.2d at 493. Thus, this portion of Fearance does not support the type of bootstrapping evident in the instant case.

We could have resolved the bootstrapping issue present in the second theory of capital murder in Fearnace in the same manner. Instead, however, with what appears to be reasoning contradictory to the reasoning used to resolve the previous ground, we went on to summarily dismiss appellant's complaint of bootstrapping on this theory by reliance on a previous case, Barnard v. State, 730 S.W.2d 703, 708-709 (Tex. Crim. App. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1098, 99 L. Ed.2d 261 (1988). In Barnard, we relied on an earlier court of appeals case, Randle v. State, 697 S.W.2d 13 (Tex. App.--Houston [14^th Dist.] 1985, no pet.). Yet, Randle does not support such bootstrapping.

In Randle, the defendant complained that his conviction for capital murder, i.e., murder in the course of aggravated robbery, was invalid because the aggravated robbery involved the same assault which caused the death of the victim. Id. at 16. The court appeals rejected appellant's complaint because

"[t]he Legislature. . .has found it appropriate to authorize the imposition of the death penalty in cases in which a murder occurs during the commission or attempted commission of a robbery, which might be completed either by assault or by threat. The significant feature of a robbery offense is that the violence or threatened violence occurs during the course of the commission of theft. . .It is this pecuniary motive for robbery-murder that renders it more atrocious.

When this legislative purpose is recognized, the fact that robbery and murder might have a shared element becomes irrelevant.

Id. at 16-17 (emphasis added). Thus it is clear that, in Randle, the felony underlying the capital murder charge was aggravated robbery, a criminal act separate and apart from the murder itself. Barnard presents a similar scenario: a robbery-murder. Barnard, 730 S.W.2d at 708. Yet, our subsequent case law has misinterpreted those cases as explicitly allowing the type of bootstrapping complained of in the instant case. See, e.g., Fearance, supra; Boyd v. State, 811 S.W.2d 105, 114 (Tex. Crim. App. 1991) ("This Court has held that an unlawful entry into a habitation with the intent to commit murder will satisfy the burglary element of a capital murder charge;" citing Fearance), cert. denied, 502 U.S. 971, 112 S. Ct. 448, 116 L. Ed.2d 466 (1991); Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995) ("In a capital murder prosecution, the requirement that a felony be committed is satisfied by the actual murder of the victim;" citing Fearance); Whitaker v. State, 977 S.W.2d 595 (Tex. Crim. App. 1998) ("An unlawful entry into a habitation with the intent to commit murder will satisfy the burglary element of a capital murder charge;" citing Fearance and Boyd), cert. denied, ___ U.S. ___, 119 S. Ct. 878, 142 L. Ed.2d 777 (1999).

The majority's decision relies upon case law which has no basis in logic and which misinterprets earlier precedent. Because the court does not take this opportunity to reevaluate this issue and set things right, I dissent.

Johnson, J.

Date Delivered: May 31, 2000

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