In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-16-00350-CR
________________________
MICHAEL TAYLOR PHILLEY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 70,448-E; Honorable Douglas R. Woodburn, Presiding
July 14, 2017
ORDER FOR ADDITIONAL BRIEFING
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Michael Taylor Philley, was charged by indictment with the offense
commonly known as “felony-murder.”1 The indictment alleged Appellant “did then and
1
TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011). Pursuant to this section, a person commits
the offense of murder if he commits or attempts to commit a felony, other than manslaughter, and in the
course of and in furtherance of the commission or attempt, or in immediate flight from the commission or
attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death
of an individual. An offense under this section is a first degree felony. Id. at § 19.02(c).
there, while in the course of knowingly committing a felony, namely AGGRAVATED
ASSAULT CAUSING SERIOUS BODILY INJURY, did then and there intentionally or
knowingly commit an act clearly dangerous to human life, namely striking [the victim]
with [Appellant’s] foot, [Appellant’s] hand, [Appellant’s] elbow, a rifle, or a combination
thereof, causing the death of [the victim] . . . .” In a separate paragraph, the indictment
included a “Deadly Weapon Notice.”
In October 2015, pursuant to a plea bargain, Appellant plead guilty to the “lesser
included offense” of aggravated assault. An aggravated assault may be committed in
two different ways: (1) the actor could commit an assault that causes serious bodily
injury to another, including the person’s spouse, TEX. PENAL CODE ANN. § 22.02(a)(1)
(West 2011); or (2) the actor could commit an assault while using or exhibiting a deadly
weapon during the commission of that assault. Id. at § 22.02(a)(2). Because
Appellant’s plea agreement fell under section 22.02(a)(2), rather than section
22.02(a)(1), it appears that the offense may not have been a lesser-included offense to
the offense of murder as alleged in the indictment because the essential elements of an
aggravated assault by the use or exhibition of a deadly weapon would not have been
established by proof of the same or less than all the facts required to establish the
commission of the offense of murder as charged. See TEX. CODE CRIM. PROC. ANN. art.
37.09 (West 2006). Generally, a conviction based on an offense that is not the offense
charged or a lesser-included offense is void. See Ex parte Sewell, 606 S.W.2d 924,
925 (Tex. Crim. App. 1980) (concluding that conviction for theft was void because the
offense was not a lesser-included offense of the offense charged in the indictment).
2
In the interest of justice, and out of an abundance of fairness to all parties, the
court hereby assigns that issue as potential error and directs both parties to file
additional briefing. Appellant is granted thirty days from the date of this order to file a
supplemental brief and the State is granted thirty days from the date Appellant’s
supplemental brief is filed to file a reply brief. If either side believes oral argument
would assist this court, a request for oral argument may accompany the supplemental
brief or reply.
Per Curiam
Do not publish.
3
Michael Taylor Philley v. State
Combined Opinion