POSEY v. STATE (2026)

Petition for discretionary review refused.

DISSENTING OPINION

As I explained in Fraser v. State, “[o]ur current felony murder jurisprudence appears unsupported by the plain text of the statute.” 726 S.W.3d 253, 274 (Tex. Crim. App. 2025) (Finley, J., concurring). Put plainly, “[a]llowing the same act to serve as the underlying felony and the act clearly dangerous to human life deviates from Section 19.02(b)(3)’s text.” Id. at 277.

The facts of this case are straightforward. Appellant and the deceased complainant, Kristina Payne, shared custody of their young son. The couple had dated in an off-and-on relationship for many years. In August 2020, a hurricane was projected to strike near Port Arthur, Texas. Payne drove to Appellant's home to pick up their son. In the driveway of Appellant's home, Appellant and Payne began arguing over custody of their boy. Appellant drew a firearm in his waistband and pointed it at Payne. The firearm discharged and Payne was shot in the head. The entire incident was captured on neighborhood cameras.

Appellant was charged with felony murder. The indictment alleged a predicate felony of intentional or knowing aggravated assault. At the charge conference, Appellant argued that the “very act which caused the homicide” was also the basis of the murder charge. The trial court ultimately denied all of the defense's instructional requests, charged the jury on both felony murder and aggravated assault, and the jury convicted Appellant of felony murder.

Appellant's first ground for review specifically asks this Court “to reconsider its prior decisions holding that the predicate offense for a felony-murder conviction need not be distinct from the act endangering life.” This case provides this Court another opportunity to give effect to the felony murder statute's plain text and rectify this Court's interpretation of that statute that is plainly wrong. The plain text of the felony murder statute does not permit “the same act to serve as the underlying felony”—in this case, the aggravated assault—“and the act clearly dangerous to human life.” Id. at 277. I would grant review and reverse the judgment of the court of appeals. I respectfully dissent from this Court's refusal to do so.