Jake Aaron Strickland v. State

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-04-557-CR

JAKE AARON STRICKLAND APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM

THE 396TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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Appellant Jake Aaron Strickland appeals from his conviction

and thirty-five year sentence for felony murder. In six points, appellant contends that the

prosecution against him for felony murder was unauthorized and that he should

have been charged with intoxication manslaughter instead. In his seventh point, he contends that the

trial court erred by overruling his objection to the prosecutor = s comment on his

failure to testify. We affirm.

Background Facts

On December 21,

2003, appellant, while driving intoxicated, struck a car in which Brent Jones

was a passenger. Jones was killed. Appellant, who had two prior convictions for

driving while intoxicated (DWI), was driving on the wrong side of the road when

he struck Jones = s car.

Although the police initially charged appellant with intoxication

manslaughter, they later changed the charge against him to felony murder when

they discovered that he had been convicted of DWI twice before. See Tex.

Penal Code Ann. ' ' 19.02(b)(3), 49.04(a), 49.08, 49.09(b)(2)

(Vernon 2003 & Supp. 2005). The

State subsequently indicted appellant for felony murder. See id . ' 19.02(b)(3). The indictment alleged that

[appellant] did then and there

commit a felony, to-wit: driving while

intoxicated, after having been previously convicted two times of the offense of

driving while intoxicated, and in the course and in furtherance of the

commission, or in immediate flight from the commission of said felony, . . .

committed or attempted to commit an act clearly dangerous to human life,

to-wit: operate a motor vehicle the

wrong way down a public roadway and said conduct resulted in and caused the

motor vehicle operated by said defendant to collide with another motor vehicle

occupied by Michael Brent Jones, which caused the death of Michael Brent Jones.

Appellant

challenged and objected to the charges against him at every possible stage of

trial, and the trial court denied all of his related motions and

objections. A jury convicted appellant

of felony murder and sentenced him to thirty-five years = confinement.

Appellant = s First Six

Points-In Pari Materia

In his first six

points, appellant contends that the doctrine of in pari materia precluded the

State from charging appellant with felony murder rather than intoxication

manslaughter. He also contends that the

penal code section relied on by the State, section 19.02(b)(3), requires the

existence of a felony offense as an element of prosecution under that statute,

but that felony DWI is not a felony offense; rather, it is only an enhanced

punishment for the misdemeanor offense of driving while intoxicated. See id . [1]

Penal code section

19.02(b)(3), the A felony murder @ statute, provides

that a defendant commits murder when he commits a felony other than

manslaughter and, during the course of its commission, commits an act clearly

dangerous to human life. Id . The State contends that appellant was

committing a felony when he drove his car the wrong way down the street and

crashed into Jones because he was committing DWI while having two prior DWI

convictions. See id. ' 49.09(b)(2). Felony murder is a first degree felony, and

the punishment range is five to ninety-nine years = confinement, plus

a fine of up to $10,000. Id . ' ' 12.32 (Vernon

2003), 19.02(c).

Appellant claims

he should have been charged under penal code section 49.08, which defines the

offense of intoxication manslaughter. Id .

' 49.08. A person

commits the offense of intoxication manslaughter if the person (1) operates a

motor vehicle in a public place, (2) is intoxicated, and, (3) by reason of that

intoxication, (4) causes the death of another by accident or mistake. Id .

Intoxication

manslaughter is a second degree felony and carries a punishment range of two to

twenty years, plus a fine of up to $10,000.

Id . ' ' 12.33, 49.08(b).

We first dispose

of appellant = s argument that felony DWI is not a felony

offense, but merely a misdemeanor DWI with an enhanced punishment. In Gibson v. State , the court of

criminal appeals held that in a prosecution for felony DWI, the prior

intoxication offenses are elements of the charged offense and define the

offense as a felony; thus, they are admitted into evidence at guilt-innocence. 995 S.W.2d 693, 696 (Tex. Crim. App. 1999); see

also Luedke v. State , 711 S.W.2d 657, 659 (Tex. Crim. App. 1986)

(recognizing that felony and misdemeanor DWI are separate offenses because A [a] prior

conviction is an essential element of felony driving while intoxicated, @ but A [i]t is not an

element of the misdemeanor offense @ ). Accordingly, contrary to appellant = s assertions,

felony DWI is a felony offense rather than a misdemeanor with an enhanced

punishment.

We next address

appellant = s argument that a prosecution for felony

murder was not authorized because the statutes are in pari materia, and the

intoxication manslaughter statute, as the more specific statute, governs in

this situation. The doctrine of in pari

materia is a principle of statutory interpretation and is codified in section

311.026 of the government code: [2]

(a) If

a general provision conflicts with a special or local provision, the provisions

shall be construed, if possible, so that effect is given to both.

(b) If

the conflict between the general provision and the special or local provision

is irreconcilable, the special or local provision prevails as an exception to

the general provision, unless the general provision is the later enactment and

the manifest intent is that the general provision prevail.

Tex. Gov = t Code Ann. ' 311.026 (Vernon 2005). If the doctrine of in pari materia applies

and the two statutes cannot be harmonized, the more specific statute controls

over the general statute unless there is an indication that the A legislature

intended to make the general [statute] controlling. @ Burke , 28 S.W.3d at 546-47 (quoting Mills

v. State , 722 S.W.2d 411, 413-14 (Tex. Crim. App. 1986)); Segura v.

State , 100 S.W.3d 652, 654 (Tex. App. C Dallas 2003, no

pet.); see also Smith , 2006 WL 231628 , at *1 n.5. In this situation, a defendant has a due

process right to be prosecuted under the more specific statute. Smith , 2006 WL 231628, at *4 .

The doctrine of in

pari materia applies if two statutes share a common purpose or object. Burke , 28 S.W.3d at 546; Cheney v.

State , 755 S.W.2d 123, 127 (Tex. Crim. App. 1988). For two statutes to have a common purpose,

they must have been enacted with the same purpose in mind. Burke , 28 S.W.3d at 547. Similarity of purpose or object is the most

important factor in determining whether two statutes are in pari materia, i.e.,

whether they are A closely enough related to justify

interpreting one in the light of the other. @ Id . (quoting Alejos v. State ,

555 S.W.2d 444, 450 (Tex. Crim. App. 1977) (op. on reh = g)).

To determine

whether two statutes share a common purpose, we consider whether the two

statutes (1) are contained in the same legislative act, (2) require the same elements of proof, (3)

involve different penalties, and (4) were clearly written to achieve the same

objective. Id . at 547‑49; In

re J.M.R. , 149 S.W.3d 289, 292 (Tex. App. C Austin 2004, no

pet.); Segura , 100 S.W.3d at 654 .

The adventitious occurrence of like or similar phrases, or even of similar

subject matter, in laws enacted for wholly different ends will not justify

applying the doctrine. J.M.R. ,

149 S.W.3d at 292-93 ; Segura , 100 S.W.3d at 654 .

Appellant contends

that the felony murder and intoxication manslaughter statutes are in pari

materia as applied in this case because they both deal with a homicide

inflicted in the absence of a culpable mental state. According to appellant, because the culpable

mental state in a prosecution for felony murder is the same as the underlying

felony offense, and in this case the underlying felony C felony DWI C does not require a

culpable mental state, there was no required mental state to convict appellant

for felony murder, just as no culpable mental state is necessary to convict of

intoxication manslaughter. [3] Appellant also contends that both statutes A must be deemed to

deal with the prosecution and punishment of intoxicated persons whose driving

causes the death of others, @ and as the more

specific of the two statutes, the intoxication manslaughter statute is

applicable to this case.

Turning to the

factors set forth above, we note that the two statutes are not contained in the

same legislative acts. Section

19.02(b)(3), felony murder, is contained

in Title 5 of the penal code, entitled, Offenses Against the Person. Section 49.08 is contained in Title 9 of

the penal code, entitled Offenses Against Public Order and Decency . Although the former version of the

intoxication manslaughter statute was contained in Title 5, the legislature

moved all intoxication-related offenses to Title 9 in 1994. Ex parte Ervin , 991 S.W.2d 804, 815

(Tex. Crim. App. 1999).

Importantly,

felony murder and intoxication manslaughter require different elements of

proof. Felony murder requires the

commission of an underlying felony, which intoxication manslaughter does not C a person can be

convicted of intoxication manslaughter even if he was committing misdemeanor

DWI at the time his actions caused another = s death. See Tex.

Penal Code Ann . ' ' 19.02(b)(3), 49.08(a). Felony murder also requires that the

defendant have committed A an act clearly dangerous to human life, @ yet the

intoxication manslaughter statute applies when the defendant causes a death by A accident or

mistake. @ Id. ' ' 19.02(b)(3),

49.08(a)(2). Additionally, it becomes

less plausible to accept a defendant = s intoxication and

the victim = s resulting death as an accident or

mistake when, as here, it is the defendant = s third DWI

offense. Furthermore, intoxication

manslaughter requires proof that the defendant was intoxicated at the time of

the offense, which is not contemplated by the felony murder statute except

when, as here, the underlying felony happens to involve intoxication. Id . ' 49.08(a)(2).

Also, as we have

discussed above, the penalties for felony murder and intoxication manslaughter

are different. Felony murder is a first

degree felony, with a punishment range of five to ninety-nine years = confinement, plus

a fine of up to $10,000. Id . ' ' 12.32,

19.02(c). Intoxication manslaughter is a

second degree felony and carries a punishment range of two to twenty years,

plus a fine of up to $10,000. Id .

' ' 12.33, 49.08(b).

Finally, although

both statutes serve the general purpose of imposing criminal responsibility for

death and preventing homicide, their objectives are not so closely related as

to justify interpreting them together.

The purpose of the felony murder statute is to impose criminal

responsibility on a person for the consequences of his felonious dangerous and

violent criminal conduct, even when death is unintended. Lawson v. State , 64 S.W.3d 396, 398-99

(Tex. Crim. App. 2001) (Cochran, J., concurring); see also Rodriguez v.

State , 953 S.W.2d 342, 345, 354 (Tex. App. C Austin 1997, pet.

ref = d) (discussing

history of felony murder rule and noting that current statute comports with

recent trend of characterizing homicide as murder A if the killer

acted with reckless and wanton disregard of an obvious risk to human life @ ). The focus is on the serious nature of the act

committed that causes the death. See

Rodriguez , 953 S.W.2d at 353-54 .

Felony murder can therefore cover a wide range of acts that might fit

within its requirements.

On the other hand,

the focus of the intoxication manslaughter statute is on the intoxicated status

of the actor. See Tex. Penal Code Ann . ' 49.08(a)(2). The penal code = s

intoxication-related offenses directly address the pervasive societal problem

of drunk driving and have as their goals both prevention, punishment, and the

removal of drunk drivers from the streets by incarceration. See Guinn

v. State , 696 S.W.2d 436, 438 (Tex. App. C Houston [14th Dist.] 1985, pet. ref = d) ( A Through the

enactment of the DWI law, the legislature has sought to address the human

misery and widespread destruction caused by drunk drivers. @ ) . Thus, although the two

statutes have similar general goals, they were also enacted with more specific,

different purposes in mind. Therefore,

the two statutes were not enacted with a common purpose. [4]

As the court of

criminal appeals held in Burke C in which it

analyzed whether the reckless aggravated assault causing serious bodily injury

and the intoxication assault statutes are in pari materia C A the two sections

[here, penal code section 19.02(b)(3) and section 49.08] don = t apply to the

same class of people, were designed to serve different purposes, appear in

different chapters of the Code, and were not apparently intended to be

considered together. @ 28

S.W.3d at 548. [5] We conclude that sections 19.02(b)(3) and

49.08 are not in pari materia; thus, they are not in conflict, and section

49.08 does not control. We further

conclude that the State properly charged appellant with C and the trial

court properly allowed the prosecution of appellant for C felony murder

instead of intoxication manslaughter. We

overrule appellant = s first six points.

Prosecutor = s Comments During

Closing Argument

In his seventh point, appellant

contends that the trial court erred by overruling his objection to the State = s jury argument, in which appellant

contends the prosecutor impermissibly commented on his failure to testify. See U.S.

Const . amend. V; Tex. Const .

art. I, ' 10; Tex. Code Crim. Proc. Ann . art. 38.08 (Vernon 2005). Appellant complains about the State = s concluding closing argument at

guilt-innocence:

[STATE]: [Defense counsel] are upset, and it appears

they = re upset with me, and I understand

that. It = s not the first time I = ve been accused of things by

defense attorneys in a trial.

But what they = re upset about is there = s some basic principles that

everybody in this courtroom knows about.

One of those principles is that every defendant, no matter what their

crime, is entitled to a zealous defense.

And the one thing there can be no doubt about is that these two defense

attorneys have done what they can to give him a zealous defense.

. . . .

But the other thing that = s fundamental is that they are

stuck with the facts and the law that you have.

And every crime is not defendable, and that = s why they = re frustrated. Because the law is, just as I said it was

going to be, in jury selection, you = ve got just the law we talked about.

And they have this strange idea,

you know, guess what? Jake is upset

because Jake isn = t charged with what he wants to be

charged with.

[DEFENSE COUNSEL]: I object. I

object. Comment on the Defendant = s failure to testify. Hasn = t said a word in this case.

And I want the record to reflect that the prosecutor is pointing to him.

THE COURT: The record will reflect that the prosecutor

was pointing to the Defendant. Your

objection is overruled.

[STATE]: Over and over again they tell you, Jake wants

to take responsibility, but I just charged him with the wrong thing. Well, you know what? In this system the Defendant, the criminal,

does not get to pick the charge. That = s just the way it works. I am sure there = s lots of criminals who would like

to pick something less than what they = re charged with.

That = s not their decision. That = s the police officer = s decision, that = s the district attorney = s office = s decision, and that = s what = s before you today.

To determine if a

prosecutor = s comment violated article 38.08 and

constituted an impermissible reference to an accused = s failure to

testify, we must consider whether the language used was manifestly intended or

was of such a character that the jury would have naturally and necessarily

considered it to be a comment on the defendant = s failure to

testify. Tex. Code Crim. Proc. Ann. art. 38.08; see Bustamante v.

State , 48 S.W.3d 761, 765 (Tex. Crim. App. 2001); Fuentes v. State ,

991 S.W.2d 267, 275 (Tex. Crim. App.), cert. denied , 528 U.S. 1026

(1999). The offending language must be

viewed from the jury = s standpoint, and the implication that the

comment referred to the accused = s failure to

testify must be clear. Bustamante ,

48 S.W.3d at 765 ; Swallow v. State , 829 S.W.2d 223, 225 (Tex. Crim. App.

1992). A mere indirect or implied

allusion to the defendant = s failure to testify does not violate the

accused = s right to remain

silent. Wead v. State , 129 S.W.3d

126, 130 (Tex. Crim. App. 2004); Patrick v. State , 906 S.W.2d 481,

490-91 (Tex. Crim. App. 1995), cert. denied , 517 U.S. 1106 (1996).

While appellant

was in the hospital after the crash, he repeatedly questioned the officers

guarding him about the jail time he was facing.

During closing arguments, the defense claimed that the prosecution had

overcharged appellant, preventing him from taking responsibility for the real

crime he committed. For instance,

defense counsel stated, A What is perverse and what is also

insensitive [about the prosecution of appellant for felony murder], is they

have denied [appellant] the opportunity to take responsibility for the crime he

committed, @ and, A It [the

prosecution] is mean-spirited because it takes away [appellant = s] ability to

acknowledge his guilt for the crime that he did, which is not murder. @ Defense counsel further argued that A sadly, [appellant]

does not get a chance to accept responsibility for the crime he actually did. @

After reviewing

the prosecutor = s comments here in context, especially

defense counsel = s immediately preceding argument, we

conclude that the prosecutor = s comments were

not manifestly intended, or of such a character that the jury would naturally

and necessarily consider them, to be a comment on appellant = s failure to

testify. As the State contends in its

brief, A the prosecutor = s remarks squarely

referred back to the comments of defense counsel during argument. @ We agree and conclude that the comments were

merely responsive to the defense theory of the case C a valid area of

argument C and not a comment

on appellant = s decision not to testify. See Felder v. State , 848 S.W.2d 85,

94-95 (Tex. Crim. App. 1992), cert. denied , 510 U.S. 829 (1993); Pope

v. State , 161 S.W.3d 114, 126-27 (Tex. App. C Fort Worth 2004,

pet. granted). We overrule appellant = s seventh point.

Conclusion

Having overruled

appellant = s seven points, we affirm the trial court = s judgment.

TERRIE

LIVINGSTON

JUSTICE

PANEL

A: CAYCE, C.J.; LIVINGSTON and GARDNER,

JJ.

PUBLISH

DELIVERED:

March 30, 2006

[1] At

trial, appellant also contended that a felony murder charge based on DWI could

not be sustained because it did not require any mental state and that the

felony murder charge violated the Equal Protection Clause and Article I,

section 3 of the Texas Constitution. In

his brief, appellant states that he A brings all of these issues

forward in this appeal, @ but

he did not brief the no culpable mental state and constitutional arguments;

thus, they are waived. King v. State ,

17 S.W.3d 7, 23 (Tex. App. C Houston [14th Dist.] 2000,

pet. ref = d)

(op. on reh = g).

[2] Burke v. State , 28 S.W.3d 545, 546-47 (Tex. Crim.

App. 2000) ; see also Smith v. State , No. PD-0262-05, 2006 WL 231628 , at

*1 n.5 (Tex. Crim. App. Feb. 1, 2006).

[3] The offense of felony DWI does not

require a culpable mental state. Perez

v. State , 11 S.W.3d 218, 221 (Tex. Crim. App. 2000). Intoxication manslaughter does not require

any culpable mental state either; it is a strict liability offense. Torres v. State , 52 S.W.3d 285, 286

(Tex. App. C Corpus Christi 2001, no pet.).

[4] We

note that the State = s use

of the offense of felony DWI as the underlying offense in a prosecution under section

19.02(b)(3), which carries a greater punishment than section 49.08, comports

with the general statutory scheme of chapter 49 of the penal code, which

provides for an increased range of punishment for each DWI offense committed. See Tex.

Penal Code Ann . ' '

49.04(b), 49.09(a), (b); Guinn , 696 S.W.2d at 438 . On the other hand, if the statutes are in

pari materia as urged by appellant, a person could continually, repeatedly kill

others while driving while intoxicated, and the penalty for the offense would

never increase.

[5] Appellant

contends that this case is controlled by Hines v. State , 515 S.W.2d 670

(Tex. Crim. App. 1974), in which the court of criminal appeals, without any

accompanying analysis, stated that former article 6701d of the revised civil

statutes C the A homicide

by vehicle @

statute C and

former article 802c of the revised civil statutes C the A murder

without malice by automobile @ statute C were

in pari materia and A when

construed together [could] be harmonized and given effect with the special

governing the general in the event of any conflict. @ Id . at 675. But Hines was decided under a former,

repealed statutory scheme, and it did not provide any guidance as to its

determination that the statutes were in pari materia. Accordingly, we decline to follow Hines

and rely instead on the court of criminal appeals = more

recent articulation in Burke of the factors involved in analyzing

whether statutes are in pari materia.