dissenting.
Because I find that the majority panel opinion in this cause correctly held that the facts of this cause will not support a conviction for murder pursuant to the provisions of V.T.C.A., Penal Code, § 19.02(a)(3), and the majority of this Court refuses to adhere to that decision, I respectfully dissent.
I also dissent to the majority of this Court relying upon this Court’s terribly reasoned opinion of Murphy v. State, 665 S.W.2d 116 (Tex.Cr.App.1983).
The record in this cause reflects that Benny Aguirre, appellant, was convicted by a jury of the offense of murder, “as charged in the indictment.” The jury was instructed that if it found beyond a reasonable doubt that appellant “intentionally and knowingly cause[d] the death of Elizabeth Aguirre, (who was then thirteen years of age and was appellant’s natural daughter), by shooting her with a gun,” see V.T. C.A., Penal Code, Section 19.02(a)(1), or if they found that he did “intentionally or knowingly attempt to commit and did commit a felony, to-wit: criminal mischief, and in the course of and in furtherance of the said felony did then and there attempt to commit and did commit an act which was clearly dangerous to human life, to wit: shooting a gun into an occupied dwelling which said act caused the death of Elizabeth Aguirre,” see V.T.C.A., Penal Code, Section 19.02(a)(3), supra, the felony murder statute, it could find him guilty of the offense of murder. Because the jury’s verdict does not specify under which theory appellant was found guilty, I am unable to state “which theory of alleged criminal responsibility prevailed in the jury room.”
On original submission, a majority of a panel of this Court ordered the conviction of appellant reversed, after holding that “... [I]f the jury opted for the felony-mur*328der theory alleged in the second remaining paragraph of the indictment, its verdict could not be sustained for the reasons set forth in Garrett v. State, 573 S.W.2d 543, 545 (Tex.Cr.App.1978). See Kuykendall v. State, 609 S.W.2d 791, 794-795 (Tex.Cr.App.1980).”
I pause to point out that where there is but one offense charged in two counts of an indictment, which is permissible pleading, see Art. 21.24, V.A.C.C.P., and the evidence is found to be sufficient to support a finding of guilt under either theory, a general verdict of guilt may be applied to either theory, and it is not necessary for the jury to designate under which theory it found the defendant guilty. Bailey State, 532 S.W.2d 316 (Tex.Cr.App.1976); Hintz v. State, 396 S.W.2d 411 (Tex.Cr.App.1965).1 However, when the general verdict of the jury might rest upon an “untenable” theory of the way the offense was committed, i.e., if one of the counts authorizes conviction on facts which do not constitute an offense, and the jury’s verdict might be based upon that count, then a general verdict of guilt cannot be sustained. Martin v. State, 142 Tex.Cr.R. 623, 156 S.W.2d 144 (1941).
The facts of this cause reflect that Elizabeth met her death while inside of her mother’s, the appellant’s ex-wife's, residence. Appellant and his ex-wife previously had sustained what appears to have been an unhappy marriage, which had ended in divorce approximately three (3) years before Elizabeth met her untimely death. By appellant’s own testimony, on the occasion in question, after confronting his ex-wife outside of her residence,, with his ex-wife thereafter going inside of her residence and shutting the front door, appellant, who was then upset and mad at his wife, and possibly intoxicated, intentionally fired at least two shotgun blasts from a sawed-off shot gun at the residence; first at the front door of the residence and then at the rear door of the residence, which part of the residence housed the kitchen. Elizabeth’s death resulted when her body, which was found in the kitchen area of the residence, was struck by shots fired from the shotgun. The record is not completely clear whether it was shot from the first blast or shot from the second blast that caused Elizabeth’s death.
The State’s expert witness on what it would cost to repair the damages appellant inflicted on the residence testified that the total repair cost to the residence was in excess of $600. The expert was not asked, nor did he state, what it would cost to repair the damage that was inflicted to the front door area of the residence versus what it would cost to repair the damage that was inflicted to the rear door area of the residence, or vice versa. He simply gave a total repair cost figure for the necessary repair work for the damages appellant’s shotgun blasts inflicted. This becomes important. See post.
I find from the above facts that the jury could have inferred from the facts that each time appellant fired his shotgun he intended to commit the offense of felony criminal mischief to the residence of his former spouse. See post.
In this instance, the jury was instructed on the provisions of Y.T.C.A., Penal Code, Sec. 6.04(b)(2), which provides that a person is criminally responsible for causing a result if the only difference between what actually occurred and what that person desired, contemplated or risked is that a different offense was committed or a different person or property was injured, harmed or otherwise affected. The jury was clearly warranted in finding appellant guilty of the offense of murder, by “unlawfully, intentionally and knowingly causpng] the death of Elizabeth Aguirre by shooting her with a gun.”
Notwithstanding this finding, I must still make the determination whether the majority panel opinion was correct in holding that the facts of this cause do not support the felony murder allegation of the indictment, as contained in paragraph three of the indictment. After having carefully reviewed the facts of the case, and having found that it is possible that the jury might *329have based its verdict upon the instruction that incorporated the provisions of Section 19.02(a)(3), supra, the felony murder statute, I must next decide whether the facts are sufficient to support the felony murder count of the indictment. I find that they are insufficient.
Before a violation of Section 19.02(a)(3), supra, may occur, it must be established that the defendant “committed or attempted to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt ... of that felony he committed or attempted to commit an act clearly dangerous to human life that caused the death of an individual.”
At the time of the alleged offense, the offense of felony criminal mischief could be committed if a person, without the effective consent of the owner, intentionally or knowingly damaged tangible property of the owner and the amount of the pecuniary loss was $200 or more but less than $10,-000. See Y.T.C.A., Penal Code, Section 28.-03, prior to amendment. In this instance, I find that the evidence is more than sufficient to reflect that appellant twice intended to commit the offense of felony criminal mischief to the residence.
The majority panel opinion primarily relied upon Garrett v. State, supra, as its principal authority for holding that the facts of this cause would not support the felony murder allegation of the indictment. Although I find that the majority panel opinion reached the correct result, I also find its authority of Garrett v. State, supra, was wrongly decided.
The facts set out in Garrett v. State, supra, reflect that the defendant went inside of a Ben Franklin store, got into an altercation with a clerk, pulled a gun, intending to scare the clerk, but shot the clerk instead, as a result of which the clerk died.2 The State alleged that the defendant violated the felony murder statute, see Sec. 19.02(a)(3), supra, alleging that the predicate offense was aggravated assault. On appeal, the defendant raised the issue “whether the felony-murder doctrine, as codified in Sec. 19.02(a)(3), supra, should apply where the precedent felony is an assault and is inherent in the homicide.” A panel of this Court found that the State, by its allegations, was attempting to use the very act, aggravated assault, which caused the murder, as the felony which boosted the homicide itself into the murder category, and held that “[t]o allow this would make murder out of every aggravated assault that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault.” The panel quoted the following, which I find states the common law rule of felony murder, from the opinion that then Chief Justice Cardozo had authored for the New York Court of Appeals, see People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927): “... The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e.g., robbery or larceny or burglary or rape,” and held that under the facts of the case the alleged aggravated assault and the act resulting in the homicide were one in the same. It held: “The application of the felony murder doctrine to situations such as this is an attempt to split into unrelated parts an indivisible transaction. [Before the felony murder statute can be invoked and applied] [t]here must be a showing of felonious criminal conduct other than the assault causing the homicide. Any other result in this case would allow circumvention of the statutory limits of the felony murder statute ... The legislative prohibition against resting a Sec. 19.02(a)(3) prosecution on voluntary manslaughter necessarily includes a prohibition against resting such *330a prosecution on offenses statutorily in-cludable in voluntary [or involuntary] manslaughter. To hold to the contrary would render the statute meaningless and its effect nil.” (My Emphasis.) The majority panel opinion thereafter held that the facts of the case did not support the allegations of the indictment, and ordered the indictment dismissed. I find that the panel opinion of Garrett v. State, supra, erroneously interpreted Section 19.02(a)(3), supra. We should expressly overrule Garrett v. State, supra.
Section 19.02(a)(3), supra, expressly provides that the offense of felony murder cannot be sustained if the underlying felony is voluntary or involuntary manslaughter. It, however, does not make reference to lesser included offenses. Had the Legislature wanted to exclude lesser included offenses, in addition to the offenses of voluntary and involuntary manslaughter, it could have easily so stated. It, however, did not so state and it is not the function of this Court to act legislatively. Garrett, supra, erroneously held that any lesser in-cludable offenses of voluntary manslaughter, and implicitly also any lesser included offenses of involuntary manslaughter, were excluded from the statute. They are not.
I also find that Garrett, supra, erroneously held that the word “act” means “an indivisible transaction.” The word “act”, however, is defined in the Penal Code, see Y.T.C.A., Section 1.07(a)(1), to mean, not an indivisible transaction, but, instead, “a bodily movement, whether voluntary or involuntary, and includes speech.” Under the facts in Garrett, supra, the defendant's pointing his pistol at the store clerk constituted the offense of aggravated assault, see V.T.C.A., Penal Code, Section 22.-02(a)(4), and under Section 19.02(a)(3), supra, his pulling of the trigger constituted bodily movement, and was thus an independent “act.” Thus, the defendant in Garrett v. State, supra, was properly charged and convicted of the offense of felony murder. Thus, in Garrett, supra, there were two separate and independent acts.
The panel decision of Garrett, supra, gains no strength by this Court’s later decision of Ex parte Easter, 615 S.W.2d 719 (Tex.Cr.App.1981), in which this Court expressly held that “an indictment alleging felony murder was not fundamentally defective so as to be susceptible to challenge for the first time in a post-conviction writ of habeas corpus ...” It also expressly held that “[petitioner may not, in this ha-beas corpus proceeding, collaterally attack the sufficiency of the evidence to support the conviction ...” Beyond these two express holdings, whatever else might have been stated in Ex parte Easter, supra, is dicta and should not be considered as binding precedent.
As previously pointed out, the jury could have inferred from the facts of this case that appellant was criminally responsible for causing the death of his daughter, because under Section 6.04(b)(1), “[a] person is criminally responsible for causing a result if the only difference between what actually occurred (Elizabeth’s untimely death) and what [appellant] desired, contemplated, or risked (intending to commit the offense of felony criminal mischief, when he twice fired his shotgun at the residence, knowing that one or more individuals were inside, which showed an utter disregard for human life) was that a different offense (murder of Elizabeth) was committed.”
Section 6.04(b)(1), supra, is patterned after former penal code Article 42, which provided: “One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually commited.” See Richards v. State, 35 Tex.Cr.R. 38, 30 S.W. 805 (Tex.Cr.App.1895), for further discussion of the statute. The main difference in the statutes is that present Section 6.04(b)(1), supra, does not require that the predicate offense must be a felony, whereas former Art. 42 did. Further, former Art. 42 was a punishment statute, whereas Sec. 19.02(a)(3), supra, is an offense within itself. Thus, Section 6.04(b)(1), supra, is an extremely general *331statute. It can, however, be applied to a Section 19.02(a)(3), supra, offense. Williams v. State, 567 S.W.2d 507, 509 (Tex.Cr.App.1978). However, Section 19.-02(a)(3), supra, the felony murder statute, so denominated because the murder results from the commission or attempted commission of another felony offense, though it has many similarities to Section 6.04(b)(1), supra, it is a very specific statute. As the “Practice Commentary” points out, “Under it the mere attempt or commission of a felony no longer suffices to construct intent or knowledge: the actor must kill while intending or committing an act clearly dangerous to human life in the course or furtherance of the felony ...” (My Emphasis.)
I also find that this Court’s decision of Murphy v. State, 665 S.W.2d 116 (Tex.Cr.App.1983), which erroneously relied upon Garrett v. State, supra, is misinterpreted in light of the provisions of Section 19.-02(a)(3), supra. The facts in Murphy v. State, supra, clearly reflect that the State could have easily prosecuted the defendant under Section 6.04(b)(1), supra. Instead, it chose to prosecute the defendant under Section 19.02(a)(3), supra. However, the facts as set out in Murphy v. State, supra, do not reflect what independent act the defendant committed in the course of and in furtherance of his commission of the offense of arson, which act had to have been clearly dangerous to human life that caused the death of the deceased in that case. The opinion, however, expressly states: “... appellant’s act of arson in setting a habitation on fire and the resulting homicide of the victim were not one in the same [act].”
I do find in Murphy v. State, supra, that this Court erroneously held that the felony murder statute does not apply where the precedent felony is an assault inherent in the homicide. As previously observed, Section 19.02(a)(3), supra, provides for no such limiting feature. The only limiting feature in Section 19.02(a)(3), supra, as far as offenses go, is that the predicate or original felony offense cannot be either voluntary or involuntary manslaughter.
I now return to the case at Bar. Will the facts that were presented to the jury support the allegation of the indictment that appellant committed the offense of felony criminal mischief and in the course of and in furtherance of that offense he also committed an act clearly dangerous to human life that caused the death of Elizabeth? I am compelled to answer the question in the negative.
In this cause, appellant was shown to have intended to commit the offense of felony criminal mischief, not once but twice. A result of his firing his shotgun at his ex-wife’s residence was his daughter’s death. These facts clearly bring the case within the provisions of Section 6.04(b)(1), supra. However, do they also establish a violation of Section 19.02(a)(3), supra? To answer this question in the affirmative requires that the evidence reflects that in the course of and in furtherance of the commission of either felony criminal mischief appellant committed or attempted to commit an act clearly dangerous to human life that caused the death of Elizabeth. What intervening, independent act did the State establish that appellant committed or attempted to commit after he had committed the felony criminal mischiefs? I have carefully searched the record for evidence of an intervening, independent act and conclude that I must answer the question in the negative. By the very terms of Section 19.02(a)(3), supra, the death causing act must be in addition to the predicate felony offense, in order to elevate the degree of culpability to that accorded the offense of first degree murder. As previously noted, Section 19.02(a)(3), supra, is not merely a statute providing for a greater punishment for unlawfully causing the death of another, cf. former Art. 42, supra, but actually states the criminal offense of murder.
Because the facts will not support either the allegation contained in the third paragraph of the indictment or a finding of guilt, appellant’s conviction should be reversed.
Given the above, the majority opinion’s reliance upon Murphy v. State, supra, is clearly erroneous.
*332Appellant’s conviction should be reversed and not affirmed and the State should be barred from retrying appellant on the third paragraph of the indictment.
. Also see Art. 37.07, Sec. 1(c), V.A.C.C.P.
. Though not stated in the opinion of Garrett, supra, the record of appeal in that cause reflects that the State’s witness Adrian Meeks, who was five years old when the defendant’s trial occurred, testified that when the shooting occurred he was standing directly behind the defendant. Meeks testified that “he [the defendant] took it [the pistol] out and he [the defendant] shot — [then] he pointed it [the pistol] and shot the white man [the deceased] ... and [then he, the defendant,] ran out the door [of the store]. (My emphasis.)