Hervey, J., delivered the opinion of the Court in which Keller, P.J., Womack, Keasler, Holcomb, and Cochran, J.J., joined. Cochran, J., filed a concurring opinion in which Keller, P.J., Keasler and Holcomb, J.J., joined. Meyers, J., filed a dissenting opinion in which Price and Johnson, J.J., joined. Johnson, J., filed a dissenting opinion in which Meyers, J., joined.

Appellant was convicted of murder pursuant to the felony murder doctrine embodied in Texas Penal Code, Section 19.02(b)(3). That section provides that a person is guilty of murder if he causes the death of another during the commission of a felony, other than manslaughter. The instant indictment alleged that appellant killed the victim while committing an “intentional and knowing” aggravated assault of that individual.

Appellant claimed on direct appeal that he could not be prosecuted for murder under Section 19.02(b)(3) because the aggravated assault was the same act that killed the victim. The Court of Appeals, on direct appeal and again on remand from this Court for reconsideration in light of our decision in Johnson v. State, rejected this claim. Lawson v. State, 26 S.W.3d 920, 921-22 (Tex.App.--Amarillo 2000, pet. granted); see also Johnson v. State, 4 S.W.3d 254 (Tex.Cr.App. 1999). We exercised our discretionary authority to review this decision.

In Johnson v. State, we limited this Court’s decision in Garrett v. State, which held that “there must be a showing of felonious criminal conduct other than the assault causing the homicide” to support a murder conviction under the felony murder rule. See Johnson, 4 S.W.3d at 258; Garrett v. State, 573 S.W.2d 543, 546 (Tex.Cr.App. [panel op.] 1978). Thus, Johnson restricted Garrett to “hereinafter [stand] only for the proposition that a conviction for felony murder under section 19.02(b)(3), will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter.” See Johnson, 4 S.W.3d at 258. We will follow Johnson.

Applying Johnson, the issue here is whether an “intentional and knowing” aggravated assault is a lesser included offense of manslaughter. Manslaughter is defined as recklessly causing an individual’s death. See Section 19.04, Texas Penal Code. The statutory underlying felony with which appellant was charged is an “intentional and knowing” aggravated assault. See Sections 22.01(a)(1) & 22.02(a)(1), Texas Penal Code, (defining the offense of aggravated assault). An “intentional and knowing” aggravated assault is not a lesser included offense of manslaughter, nor is it statutorily includable in manslaughter. See Johnson, 4 S.W.3d at 258; Garrett, 573 S.W.2d at 546.

The judgment of the Court of Appeals is, therefore, affirmed.

Hervey, J.

Delivered: December 5, 2001.
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