Fraser, Marian

PD-0711-17
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/18/2017 2:38 PM
Accepted 12/18/2017 3:19 PM
DEANA WILLIAMSON
IN THE COURT OF CRIMINAL APPEALS CLERK
OF TEXAS
FILED
COURT OF CRIMINAL APPEALS
MARIAN FRASER, § 12/18/2017
APPELLANT § DEANA WILLIAMSON, CLERK
§
V. § NO. PD-0711-17
§
THE STATE OF TEXAS, §
APPELLEE §
On Discretionary Review Of The Decision Of The Court Of Appeals For The
Seventh District Of Texas In Cause Number 07-15-00267-CR
§§§
STATE’S BRIEF ON THE MERITS
§§§
MELINDA WESTMORELAND
Criminal District Attorney Pro Tem/
Independent Prosecutor
McLennan County, Texas
DEBRA WINDSOR
Assistant Criminal District Attorney Pro Tem
State Bar No. 00788692
Oral argument is R. DALE SMITH & DAVID L. RICHARDS
requested & Assistant Criminal District Attorneys Pro Tem
has been granted. Tim Curry Criminal Justice Center
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
Fax (817) 884-1672
CCAappellatealerts@tarrantcountytx.gov
Table of Contents
Identity of Judge, Parties, & Counsel ...................................................................... iii
Index of Authorities ................................................................................................. iv
Statement of the Case................................................................................................ 1
Statement of Facts ..................................................................................................... 2
Question Presented For Review ................................................................................ 5
Can the felonies of reckless or criminally negligent injury to a child or
reckless or criminally negligent child endangerment underlie a felony-
murder conviction when the act underlying the felony and the act
clearly dangerous to human life are one and the same?
Summary of the State’s Arguments .......................................................................... 5
Arguments & Authorities .......................................................................................... 6
1. Appellant’s felony-murder conviction is authorized by law................ 6
a. The allegations and evidence tracked the elements of felony-
murder set forth in the Penal Code ............................................ 6
b. Reckless and criminally negligent injury to a child and
endangering a child are not lesser-included offenses of
manslaughter .............................................................................. 7
c. Appellant’s prosecution was authorized .................................. 11
2. Other reasons discussed by the lower court do not prohibit
appellant’s felony-murder conviction ................................................ 12
a. Felony-murder has no culpable mental state ........................... 12
b. The merger doctrine, to the extent it survives, does not bar
conviction ................................................................................. 14
i
c. Moral and conceptual equivalence between the four culpable
mental states for injury to a child and endangering a child are
not required .............................................................................. 16
Prayer for Relief ...................................................................................................... 18
Certificate of Service .............................................................................................. 18
Certificate of Compliance ....................................................................................... 19
ii
Identity of Judge, Parties, & Counsel
Trial Court Judge: The Honorable Ralph T. Strother, Presiding Judge of the 19th
District Court of McLennan County, Texas
Parties to the Judgment: Appellant, Marian Fraser and The State of Texas
Appellant’s counsels at trial: Gerald Villarrial, The Villarrial Law Firm, 3640 West
Waco Drive, Waco, TX 76710, and Brian R. Pollard, Baker, Hancock & Pollard,
P.O. Box 23309, Waco, TX 76702
Counsels for the State at trial: Melinda Westmoreland, Criminal District Attorney
Pro Tem / Independent Prosecutor for McLennan County, and R. Dale Smith,
Assistant Criminal District Attorney Pro Tem, 401 W. Belknap St., Fort Worth, TX
76196
Appellant’s counsel on appeal: E. Alan Bennett, Sheehy, Lovelace & Mayfield,
P.C., 510 N. Valley Mills Dr., Ste. 500, Waco, TX 76710
Counsels for the State on appeal: Melinda Westmoreland, Criminal District
Attorney Pro Tem / Independent Prosecutor for McLennan County, R. Dale Smith,
Assistant Criminal District Attorney Pro Tem, and David L. Richards, Assistant
Criminal District Attorney Pro Tem, 401 W. Belknap St., Fort Worth, TX 76196
Counsels for the State before the Court of Criminal Appeals: Melinda
Westmoreland, Criminal District Attorney Pro Tem / Independent Prosecutor for
McLennan County, R. Dale Smith, Assistant Criminal District Attorney Pro Tem,
Debra Windsor, Assistant Criminal District Attorney Pro Tem, and David L.
Richards, Assistant Criminal District Attorney Pro Tem, 401 W. Belknap St., Fort
Worth, TX 76196
iii
Index of Authorities
Cases Page(s)
Contreras v. State,
312 S.W.3d 566 (Tex. Crim. App.), cert. denied,
562 U.S. 987 (2010) ..............................................................................7, 8, 16, 17
Fraser v. State,
523 S.W.3d 320
(Tex. App.—Amarillo 2017, pet. granted & pet. ref’d) ..............................passim
Johnson v. State,
4 S.W.3d 254 (Tex. Crim. App. 1999) .....................................................7, 14, 15
Lawson v. State,
64 S.W.3d 396 (Tex. Crim. App. 2001) .........................................................7, 16
Lomax v. State,
233 S.W.3d 302 (Tex. Crim. App. 2007) .....................................................13, 14
Rice v. State,
333 S.W.3d 140 (Tex. Crim. App. 2011) .................................................8, 11, 15
Statutes
TEX. CODE CRIM. PROC. art. 37.09 .................................................................8, 11, 15
TEX. CODE CRIM. PROC. art. 37.09(1) ......................................................................10
TEX. CODE CRIM. PROC. art. 37.09(2) ......................................................................10
TEX. CODE CRIM. PROC. art. 37.09(3) ......................................................................10
TEX. CODE CRIM. PROC. art. 37.09(4) ......................................................................11
TEX. PENAL CODE § 1.07(a)(26) ....................................................................9, 10, 11
TEX. PENAL CODE § 6.03 ..........................................................................................13
TEX. PENAL CODE § 19.02(b)(3) .......................................................................passim
TEX. PENAL CODE § 19.04(a) ............................................................................passim
iv
TEX. PENAL CODE § 22.04(a) ............................................................................passim
TEX. PENAL CODE § 22.04(c)(1) ..............................................................9, 10, 11, 15
TEX. PENAL CODE § 22.041(c) ..........................................................................passim
v
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
MARIAN FRASER, §
APPELLANT §
§
V. § NO. PD-0711-17
§
THE STATE OF TEXAS, §
APPELLEE §
On Discretionary Review Of The Decision Of The Court Of Appeals For The
Seventh District Of Texas In Cause Number 07-15-00267-CR
To The Honorable Court Of Criminal Appeals Of Texas:
Statement of The Case
A jury convicted appellant of felony-murder pursuant to TEX. PENAL CODE
§ 19.02(b)(3) for the death of CF, a four-month-old infant at her in-home daycare.
(CR 1 at 106, 122). The felonies alleged to underlie the murder were injury to a
child and endangering a child. (CR 1 at 6, 98-99). See TEX. PENAL CODE
§§ 22.04(a), 22.041(c). The jury assessed punishment at fifty years’ confinement
and a $10,000 fine. (CR 1 at 117, 122). The Court of Appeals reversed the judgment
of conviction and remanded the case for a new trial. Fraser v. State, 523 S.W.3d
320 (Tex. App.—Amarillo 2017, pet. granted & pet. ref’d). It held that the jury
charge authorized conviction on theories not supported by the law—reckless or
criminally negligent injury to a child or reckless or criminally negligent child
endangerment. Id. at 334-35.
1
Statement of Facts
Appellant ran an exclusive in-home daycare, limiting her services to twelve
children, infants through toddlers around two years of age or younger. (RR 5 at 25-
26, 32; 6 at 79-80). One signature of her care was that the children were on a strict
routine. (RR 5 at 35, 54; 6 at 82). Naps occurred from noon to 3:00 p.m. (RR 5 at
28). Parents were not welcome in the house during this time and were discouraged
from picking up their children during these hours. (RR 5 at 28-30, 59; 6 at 82, 181,
239-40). If pick-up was necessitated by appointments or other obligations, parents
were to call or message ahead and appellant would meet them outside with their
child. (RR 5 at 60, 81-82; 6 at 82, 181, 239-40).
In March of 2013, appellant found four-month-old CF unresponsive near the
end of nap-time. (RR 5 at 45, 160, 219; 7 at 267). Despite the best efforts and
interventions of first responders and hospital personnel, CF died a short time later.
(RR 4 at 11-18, 23-28, 44). Her death began to expose just how appellant managed
to get twelve infants and toddlers to stay on such a strict napping routine. (RR 5 at
215). She administered diphenhydramine to them without their parents’ knowledge
or consent, even though it was labeled as not for use in children under two years of
age. (RR 6 at 52, 116, 139, 174, 196, 221, 246, 262, 284, 309, 334, 357, 378).
All initially assumed that CF had died from SIDS, but later autopsy toxicology
results shocked the small daycare community. (RR 5 at 46, 80, 101; 6 at 128-29,
2
374). Those results revealed that CF died from a lethal dose of diphenhydramine,
the active ingredient in Benadryl and some common cold medications. (RR 5 at 46,
191; 6 at 37-40, 50, 52). Several parents rallied behind appellant and, in doing so,
came to discover that their children also had been given diphenhydramine. (RR 6 at
86-92, 134).
Hair samples taken from the children, some from years’ prior first haircut
clippings, also tested positive for diphenhydramine. (RR 6 at 92, 135, 160, 194-95,
217-19, 245, 261, 283, 305-07, 331-33, 354-56, 376-77; 7 at 16-20, 95, 114-29).
The positive samples spanned five years and fourteen children, not including CF.
Many showed repeated doses of the medication. (RR 7 at 114-29, 131). Many of
the fourteen other children had histories of ailments linked to diphenhydramine
ingestion, such as chronic congestion, ear infections, extreme thirst, lethargy,
vomiting, and tremors. (RR 6 at 82, 84, 112-13, 124, 154, 183, 205, 249, 257, 263,
284, 301, 311, 323-26; 7 at 31). The toxic levels of diphenhydramine in the sample
of one child were so high that the instrument was unable to quantify the peak amount.
(RR 7 at 127-28). This same child had suffered previously unexplained seizures,
which could have been caused by ingesting diphenhydramine, during the time frame
he attended appellant’s daycare. (RR 6 at 22, 323-26; 7 at 128).
Despite the finding of diphenhydramine as causing CF’s death, and the
presence of it in fourteen other children who had attended her daycare, appellant
3
maintained that she did not administer the drug. (RR 5 at 172; 7 at 282). In fact,
she told the jury in her testimony, she would not have done so because administering
it to a child younger than two years of age was an act clearly dangerous to human
life. (RR 7 at 282-84, 294). Evidence was presented on her behalf that not all
laypersons would know that the drug, available in many over-the-counter
formulations, was clearly dangerous to human life when given to a child younger
than two. (RR 7 at 203-04, 218, 223).
The jury was thus presented with two main contested issues to resolve: Did
appellant give CF diphenhydramine? And, if she did, was that an act clearly
dangerous to human life? The jury resolved both issues in favor of the prosecution,
convicting appellant of felony-murder, with the underlying felony being injury to a
child or endangering a child. (CR 1 at 106, 122). The jury was instructed without
objection on all four culpable mental states – intentionally, knowingly, recklessly,
and criminally negligent –with regard to the underlying felonies. (CR 1 at 96-97;
RR 8 at 4-5).
On appeal, the Amarillo Court of Appeals found that “the State’s theory of
prosecution and arguments, and the court’s charge and instructions, allowed for a
murder conviction on a basis not authorized by law” and it reversed appellant’s
conviction and remanded the case for a new trial. Fraser, 523 S.W.3d at 325. It
seemed to base its opinion on four key misstatements of the law: (1) reckless and
4
criminally negligent injury to a child and endangering a child are lesser-included
offenses of manslaughter; (2) felony-murder is a result-oriented offense; (3) the act
clearly dangerous to human life is subsumed by the underlying felonies under the
merger doctrine; and (4) reckless and criminally negligent injury to a child and
endangering a child can never support a felony-murder conviction because they are
not morally and conceptually equivalent to murder or to intentionally or knowingly
injuring a child or endangering a child. See id. at 328-334.
Question Presented For Review
Can the felonies of reckless or criminally negligent injury to a child or reckless
or criminally negligent child endangerment underlie a felony-murder conviction
when the act underlying the felony and the act clearly dangerous to human life are
one and the same?
Summary of the State’s Arguments
Yes, all four mental states of injury to a child and endangering a child can
support a felony-murder conviction even if the act underlying the felony and the act
clearly dangerous to human life are one and the same. Contrary to the Amarillo
Court of Appeals’ opinion, injury to a child and endangering a child are not lesser-
included offenses of manslaughter, felony-murder is not a result-oriented offense,
the act clearly dangerous to human life is not subsumed by the underlying felonies
5
under the merger doctrine, and moral or conceptual equivalence of the alternative
underlying felonies to murder or to each other is not required.
Arguments & Authorities
1. Appellant’s felony-murder conviction is authorized by law
a. The allegations and evidence tracked the elements of felony-
murder set forth in the Penal Code
Appellant was charged with the felony-murder of CF. (CR 1 at 6). The Penal
Code states that a person commits felony-murder if she:
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, (s)he commits or
attempts to commit an act clearly dangerous to human life that causes
the death of an individual.
TEX. PENAL CODE § 19.02(b)(3). In this case, appellant committed or attempted to
commit a felony, injury to a child or endangering a child, and in the course or
furtherance of the commission or attempt, she committed or attempted to commit an
act clearly dangerous to human life, administering diphenhydramine to CF or
causing CF to ingest diphenhydramine, which caused the death of CF. (CR 1 at 6,
98-99). The prosecution’s allegations, which the jury found credible, tracked the
elements of the offense set forth in the Penal Code. (CR 1 at 6, 98-99).
6
b. Reckless and criminally negligent injury to a child and
endangering a child are not lesser-included offenses of
manslaughter
As quoted above, the felony-murder statute states that the underlying felony
must be one “other than manslaughter.” TEX. PENAL CODE § 19.02(b)(3). This Court
has interpreted that to mean 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.” Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim.
App. 1999); see also Lawson v. State, 64 S.W.3d 396, 396-97 (Tex. Crim. App.
2001). The lower court stated that reckless and criminally negligent injury to a child
and endangering a child are lesser-included offenses of manslaughter. Fraser, 523
S.W.3d at 333-34.
Reckless and criminally negligent injury to a child and endangering a child
are not lesser-included offenses of manslaughter. In Johnson, this Court flatly
stated, “The offense of injury to a child is not a lesser included offense of
manslaughter.” Johnson, 4 S.W.3d at 258. The lower court dismissed this holding,
however, by examining the clerk’s record in that case and noting that, with regard to
the underlying felony, the Johnson jury was charged only with the culpable mental
state of intentionally injuring a child. Fraser, 523 S.W.3d at 332. But in Contreras
v. State, 312 S.W.3d 566, 584 (Tex. Crim. App.), cert. denied, 562 U.S. 987 (2010),
the Court again stated, “The offense of ‘injury to a child’ can qualify as an
7
underlying felony in a felony murder prosecution,” and the opinion explicitly stated
that the charge in the case alleged the four culpable mental states in the alternative.
Id. at 583-84.
This Court’s statements are correct, regardless of the culpable mental state
alleged. An offense is a lesser-included offense if, after comparing the elements and
facts alleged in the indictment with the elements of the lesser offense, the proof
necessary to establish the charged offense also includes the lesser offense. See, e.g.,
Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). Further, TEX. CODE
CRIM. PROC. art. 37.09 states that an offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or public
interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
TEX. CODE CRIM. PROC. art. 37.09. Under either description, injury to a child and
endangering a child are not lesser included offenses of manslaughter.
A person commits the offense of manslaughter “if (s)he recklessly causes the
death of an individual.” TEX. PENAL CODE § 19.04(a). As applicable here, a person
commits the offense of injury to a child “if (s)he intentionally, knowingly,
8
recklessly, or with criminal negligence, by act . . . causes to a child . . . serious bodily
injury . . . or bodily injury.” TEX. PENAL CODE § 22.04(a). A “child” is defined in
the statute as “a person 14 years of age or younger.” TEX. PENAL CODE § 22.04(c)(1).
As applicable here, a person commits the offense of endangering a child “if (s)he
intentionally, knowingly, recklessly, or with criminal negligence, by act . . . engages
in conduct that places a child younger than 15 years in imminent danger of death,
bodily injury, or physical or mental impairment.” TEX. PENAL CODE § 22.041(c).
Injury to a child and endangering a child require, as an element, proof that the
defendant caused the injury to “a child,” defined as “a person 14 years of age or
younger” in the injury to a child statute and as “younger than 15 years” in the
endangering statute. TEX. PENAL CODE § 22.04(a), (c)(1); TEX. PENAL CODE §
22.041(c). In contrast, manslaughter contains no such requirement, but applies if the
defendant caused the death of “an individual.” TEX. PENAL CODE § 19.04(a).
While every child is an individual, not every individual is a child. Compare
TEX. PENAL CODE § 22.04(c)(1) (defining “child” as “a person 14 years of age or
younger”) and TEX. PENAL CODE § 22.041(c) (modifying “child” with “younger than
15 years”) with TEX. PENAL CODE § 1.07(a)(26)(defining “individual” as “a human
being who is alive, including an unborn child at every stage of gestation from
fertilization until birth.”) The proof necessary to establish manslaughter, that death
was caused to an individual, does not include the proof necessary to establish injury
9
to or endangering a child. Compare TEX. PENAL CODE § 19.04(a) and TEX. PENAL
CODE § 1.07(a)(26) with TEX. PENAL CODE § 22.04(a), (c)(1) and TEX. PENAL CODE
§ 22.041(c). Additionally, because proof of a “child,” not just an “individual,” is
needed to establish the offenses of injury to a child and endangering a child, those
offenses are not established by proof of the same or less than all the facts required
to establish the commission of manslaughter. TEX. CODE CRIM. PROC. art. 37.09(1).
Injury to a child and endangering a child also do not differ from manslaughter
only in the respect that a less serious injury or risk of injury to the same person,
property, or public interest suffices to establish its commission. TEX. CODE CRIM.
PROC. art. 37.09(2). Again, injury to a child and endangering a child require proof
of an injury to or the endangering of a “child,” not an “individual” as manslaughter
does. Compare TEX. PENAL CODE § 19.04(a) and TEX. PENAL CODE § 1.07(a)(26)
with TEX. PENAL CODE § 22.04(a), (c)(1) and TEX. PENAL CODE § 22.041(c).
Injury to a child and endangering also do not differ from manslaughter only
in the respect that a less culpable mental state suffices to establish their commission.
TEX. CODE CRIM. PROC. art. 37.09(3). Like manslaughter, both can be established
with recklessness. While they also can be committed with criminal negligence,
again both require proof of a “child,” not an “individual.” Compare TEX. PENAL
CODE § 19.04(a) and TEX. PENAL CODE § 1.07(a)(26) with TEX. PENAL CODE §
22.04(a), (c)(1) and TEX. PENAL CODE § 22.041(c). Finally, neither injury to a child
10
nor endangering a child consist of an attempt to commit manslaughter. TEX. CODE
CRIM. PROC. art. 37.09(4). Injury to a child and endangering a child are not lesser
included offenses of manslaughter. See Rice v. State, 333 S.W.3d at 144; TEX. CODE
CRIM. PROC. art. 37.09.
c. Appellant’s prosecution was authorized
Again, the State alleged that appellant committed or attempted to commit a
felony, injury to a child or endangering a child, and in the course or furtherance of
the commission or attempt, she committed or attempted to commit an act clearly
dangerous to human life, administering diphenhydramine to CF or causing CF to
ingest diphenhydramine, which caused the death of CF. (CR 1 at 6, 98-99). These
allegations, found credible by the jury, tracked the elements of felony-murder set
forth in the Penal Code. (CR 1 at 6, 98-99). See TEX. PENAL CODE § 19.02(b)(3).
Moreover, injury to a child and endangering a child, even with a reckless or
criminally negligent culpable mental state, are not lesser offenses of manslaughter
because they require additional proof that a child was injured or endangered, so that
either can serve as the underlying felony for a felony-murder conviction. Compare
TEX. PENAL CODE § 19.04(a) and TEX. PENAL CODE § 1.07(a)(26) with TEX. PENAL
CODE § 22.04(a), (c)(1) and TEX. PENAL CODE § 22.041(c). Appellant’s prosecution
for and conviction of felony-murder was authorized by law and the trial court’s
judgment should have been affirmed.
11
2. Other reasons discussed by the lower court do not prohibit appellant’s
felony-murder conviction
A holding that reckless and criminally negligent injury to a child and
endangering a child are not lesser offenses of manslaughter, contrary to the opinion
below, is enough to reverse the lower court’s judgment and affirm the trial court’s
judgment and the jury’s verdict. Nevertheless, the lower court’s opinion contains
other misstatements of law upon which it seemed to base its opinion that the
prosecution in this case was not authorized. See Fraser, 523 S.W.3d at 328-34. An
examination of each shows that they also did not justify the overturning of
appellant’s conviction.
a. Felony-murder has no culpable mental state
The lower court found that felony-murder is a result-oriented offense and that
the culpable mental state for the underlying felony is sufficient to transfer the intent
to cause death to the felony-murder offense. Id. at 328-29. It stated that felony-
murder is a result-oriented offense, that “the culpable mental state necessary for the
underlying felony is sufficient to transfer the intent to cause death (or at least the
culpable mental state required to commit an act clearly dangerous to human life not
otherwise encompassed in the definition of manslaughter) to the felony-murder
offense,” and “the act which is ‘clearly dangerous to human life that causes the death
of an individual’ cannot be an act that causes the death of an individual by reckless
or criminally negligent conduct.” Id.
12
However, as this Court has explained, felony-murder, as set out in TEX. PENAL
CODE § 19.02(b)(3), “plainly dispenses with a culpable mental state.” Lomax v.
State, 233 S.W.3d 302, 305-07 (Tex. Crim. App. 2007). “[T]he very nature of the
felony-murder rule is that there is no culpable mental state ‘for the act of murder.’”
Id. at 306-07. The Court has described the historical purpose of the felony-murder
rule as “to make a person guilty of an ‘unintentional’ murder when he causes another
person’s death during the commission of some type of a felony.” Id. at 305.
Moreover, the “act clearly dangerous to human life” does not require a culpable
mental state. Lomax, 233 S.W.3d at 307 n.16. Felony-murder is not, therefore, a
result-oriented, or result-of-conduct, offense. See TEX. PENAL CODE § 6.03; Lomax,
233 S.W.3d at 305-07.
The underlying felonies in this case, injury to a child or endangering a child,
do require a culpable mental state. See TEX. PENAL CODE § 22.04(a); TEX. PENAL
CODE § 22.041(c). The injury to a child and endangering a child statutes provide
that those felonies may be committed intentionally, knowingly, recklessly, or with
criminal negligence. See TEX. PENAL CODE § 22.04(a); TEX. PENAL CODE §
22.041(c). That the jury was instructed that those felonies could be committed with
any of the four culpable mental states set out in the penal statutes defining those
offenses did not somehow cause appellant’s felony-murder conviction to be
13
unauthorized. (CR 1 at 98-99). See TEX. PENAL CODE 19.02(b)(3); Lomax, 233
S.W.3d at 305-07.
b. The merger doctrine, to the extent it survives, does not bar conviction
The lower court found that because the act alleged to be clearly dangerous to
human life was the same as the underlying felonies, it was subsumed by them under
the merger doctrine. Fraser, 523 S.W.3d at 330-34. However, little of the former
merger doctrine remains. In Johnson, 4 S.W.3d at 256-58, the Court rejected the
idea that the felony-murder statute or the merger doctrine required the defendant to
commit an underlying felony plus an additional act (other than the conduct covered
by the underlying felony) that was clearly dangerous to human life. The Court
explained:
We disavow our overly broad statement in Garrett [v. State, 573
S.W.2d 543, 545 (Tex. Crim. App. 1978)] that in order to support a
conviction under the felony murder provision, “[t]here must be a
showing of felonious criminal conduct other than the assault causing
the homicide.” Garrett, 573 S.W.2d at 546. We hold Garrett did not
create a general “merger doctrine” in Texas. The doctrine exists only to
the extent consistent with section 19.02(b)(3). Thus, Garrett hereinafter
stands 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.
Johnson, 4 S.W.3d at 258. Thus, appellant’s act of administering to or causing CF
to ingest diphenhydramine was not subsumed by the underlying felonies of injury to
child and endangering a child. See id.
14
The lower court read the Johnson holding to mean, “if the underlying felony
conduct and the act clearly dangerous to human life were subsumed within the
statutory definition of manslaughter (or a lesser-included offense), then the merger
doctrine was applicable, rendering a felony-murder prosecution inappropriate.”
Fraser, 523 S.W.3d at 331. It stated its concern that “[t]o permit this [conviction]
would be to allow every reckless or criminally negligent act resulting in the death
[of] a child to be prosecuted as murder.” Id. at 334.
Again, reckless or criminally negligent injury to a child and endangering a
child are not lesser included offenses of manslaughter because they require proof of
a “child” which manslaughter does not. See TEX. PENAL CODE § 19.04(a); TEX.
PENAL CODE § 22.04(a), (c)(1); TEX. PENAL CODE § 22.041(c); TEX. CODE CRIM.
PROC. art. 37.09; Rice, 333 S.W.3d at 144. Because they are neither manslaughter
nor lesser offenses of manslaughter, the felony-murder statute allows them to serve
as the underlying felony in a felony-murder prosecution. See Johnson, 4 S.W.3d at
258. Moreover, the felony-murder rule authorizes conviction upon proof of any
felony or attempted felony, except manslaughter, in the course of which or in flight
from which the defendant commits or attempts an act clearly dangerous to human
life that causes death. TEX. PENAL CODE § 19.02(b)(3). As Judge Cochran explained
in her concurring opinion in Lawson,
But not every instance of aggravated assault, injury to a child, criminal
mischief, etc. ends in death. Not every instance of these offenses is the
15
result of an act that is clearly dangerous to human life. Not every
instance of these offenses would automatically be upped to felony
murder. Use of these offenses as the basis of a felony murder
prosecution do not pose the same logical and legal problem of merger
that involuntary manslaughter has always been recognized, both at
common law and in felony murder statutes, as posing.
Lawson, 64 S.W.3d at 400-01 (Cochran, J., jointed by Keller, P.J., Keasler and
Holcomb, J.J.). The merger doctrine does not bar appellant’s conviction.
c. Moral and conceptual equivalence between the four culpable mental
states for injury to a child and endangering a child are not required
Finally, the lower court seemed to find that reckless and criminally negligent
injury to a child and endangering a child could not support a felony-murder
conviction because they were not morally and conceptually equivalent to murder or
to intentionally or knowingly injuring a child or endangering a child. Fraser, 523
S.W.3d at 329. However, this Court has rejected any requirement of moral or
conceptual equivalence. Contreras, 312 S.W.3d at 584-85.
In Contreras, this Court rejected the notion that the underlying felonies
themselves had to be morally equivalent. Id. at 583-85. The underlying offense in
Contreras was injury to a child and the jury was charged as to all four culpable
mental states. Id. at 583. The defendant complained on appeal that the alternative
submission of the culpable mental states violated his right to a unanimous jury. Id.
In rejecting this argument, the Court noted its prior holding that the “specifically
16
named felonies” were not “elements about which a jury must be unanimous.” Id. at
584. This Court explained:
The point of the felony murder statute is to punish, as murder, a killing
occurring during the course of a serious crime, the exact seriousness of
the underlying crime not being a particular concern, so long as it is
serious enough to be considered a “felony.”
Id. at 585. It also stated that application of a rule of moral equivalence was
inappropriate in that case because “the jury was unanimous at least as to the culpable
mental state of criminal negligence.” Id. Because appellant committed or attempted
to commit a felony, injury to a child or endangering a child, and in the course or
furtherance of the commission or attempt, she committed or attempted to commit an
act clearly dangerous to human life, administering diphenhydramine to CF or
causing CF to ingest diphenhydramine, which caused the death of CF, a felony-
murder prosecution was authorized. See TEX. PENAL CODE § 19.02(b)(3);
Contreras, 312 S.W.3d at 584-85.
17
Prayer For Relief
The State prays that this Court will reverse the judgment of the Seventh Court
of Appeals and affirm the trial court’s judgment.
Respectfully submitted,
MELINDA WESTMORELAND
Criminal District Attorney Pro Tem/
Independent Prosecutor
McLennan County, Texas
/s/ Debra Windsor
DEBRA WINDSOR
Assistant Criminal District Attorney Pro Tem
State Bar No. 00788692
R. DALE SMITH & DAVID L. RICHARDS
Assistant Criminal District Attorneys Pro Tem
Tim Curry Criminal Justice Center
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
Fax (817) 884-1672
CCAappellatealerts@tarrantcountytx.gov
Certificate Of Service
A true copy of the State’s Brief On The Merits has been e-served on counsel
for appellant, E. Alan Bennett at abennett@slmpc.com, and on Stacy M. Soule, State
Prosecuting Attorney, at information@spa.texas.gov, on this 18th day of December,
2017.
/s/ Debra Windsor
DEBRA WINDSOR
18
Certificate Of Compliance
This document complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of TEX. R. APP. P. 9.4(i) because it contains 3,985 words, as
computed by Microsoft Office Word 2013, the computer program used to prepare
the document.
/s/ Debra Windsor
DEBRA WINDSOR
19