IN THE

TENTH COURT OF APPEALS

No. 10-94-176-CR

     MOHAMMED AMIR YUSUF,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-776-C

OPINION ON PETITION FOR DISCRETIONARY REVIEW

      In his petition for discretionary review, Mohammed Amir Yusuf contends that we erred in holding that he was not entitled to an instruction on the lesser-included offense of murder. He argues that we focused only on the lesser-included offense of felony murder under section 19.02(a)(3) of the Penal Code when we should have considered the lesser-included offense of murder under section 19.02(a)(1). See Tex. Penal Code Ann. § 19.02(a)(1), (2) (Vernon 1989). He also contends that we failed to address whether the Texas Constitution, unlike its federal counterpart, requires officers to cease questioning and to clarify a suspect's ambiguous request for counsel.

      Yusuf argues that under section 19.02(a)(1) of the Penal Code, he could have been found guilty of the lesser-included offense of murder because the evidence raised a question about whether he committed the offense "knowingly" rather than "intentionally." Although conceivably evidence that Yusuf acted "knowingly" rather than "intentionally" would require an instruction on the lesser-included offense of murder under section 19.02(a)(1), we do not believe that such evidence was present in this case for the reasons stated in our original opinion.

      Yusuf also argues that we should have addressed his claims of an ambiguous request for counsel under the Texas Constitution. We relied on the recent case of Davis v. United States, — U.S. —, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), for the proposition that officers are not required to cease questioning upon the making of an ambiguous or equivocal reference to counsel. Yusuf suggests that Russell v. State, 727 S.W.2d 573 (Tex. Crim. App.), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 119 (1987), might partially be based on the Texas Constitution and thus its holding may still be viable notwithstanding the holding in Davis.    The San Antonio Court has recently address this argument:

Now that the Supreme Court has removed Russell's federal law underpinnings, its holding cannot stand as a matter of federal law. Texas courts can extend Texas Constitutional rights beyond their analogous federal counterparts. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991). But we see no reason to adopt the Russell rule as a matter of state law and to create greater rights on behalf of criminal suspects against the state than the United States Constitution requires.

State v. Panetti, 891 S.W.2d 281, 284 (Tex. App.—San Antonio 1994, no pet. h.). We agree with the San Antonio Court.

                                                                               BILL VANCE

                                                                               Justice

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Opinion delivered and filed April 5, 1995

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