Fearance v. State

In Fearance v. State, 771 S.W.2d 486, 492-93 (Tex. Crim. App. 1988), cert. denied, 492 U.S. 927, 109 S. Ct. 3266, 106 L. Ed. 2d 611, 109 S. Ct. 3237 (1989), the indictment alleged two possible theories of capital murder: murder in the course of a burglary, for which the predicate was theft; and murder in the course of burglary, for which the predicate was the same murder. Fearance, 771 S.W.2d at 492 n.1. In sustaining the conviction, the Court stated, in part, that the indictment alleged and the proof showed that the defendant was engaged in felonious criminal conduct, specifically, burglary at the time Larry Faircloth was murdered. This conduct was a property offense. Therefore, there was a showing of felonious criminal conduct other than the assault which caused the death of Larry Faircloth. Fearance, 771 S.W.2d at 493.