

Opinion issued June 9, 2011.                                                          

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 
01-08-00522-CR
———————————
DENNIS RAY DRIVER, Appellant
V.
The State of Texas, Appellee
 
 

On Appeal from 263rd District Court
Harris County, Texas
Trial Court Cause No. 1124466
 
 

O P
I N I O N
A jury convicted Dennis Ray Driver of felony murder,
based on the underlying offense of cocaine possession, after Driver’s
eight-month-old son died of cocaine poisoning while in Driver’s care.  See Tex. Penal
Code Ann.                    § 19.02(b)(3) (West 2003).  After
hearing evidence of Driver’s multiple drug convictions, the jury assessed his
punishment at life in prison.  On appeal, Driver contends that the evidence
is legally insufficient to support the jury’s findings that he (1) intentionally
or knowingly possessed cocaine or (2) committed an act dangerous to human life.
He further contends that the trial court erred in failing to instruct the jury
on manslaughter and criminally negligent homicide as lesser included offenses to
felony murder.    We
conclude that the evidence is legally sufficient to support the conviction, and
that the trial judge did not err in refusing to submit the requested lesser included
offenses.  We therefore affirm.
Background
          Samantha Cabrera left for
work around noon on December 28, 2006, leaving Driver to care for their
eight-month-old son at the family’s apartment. 
The baby could roll and scoot around, but was not yet crawling.  Driver’s sister visited them after lunch. Driver
and the baby spent some of the afternoon on the front porch of the
apartment.  Driver gave the baby a bottle
around 9:00 p.m., and they both fell asleep on the couch, with the baby sleeping
on his chest.  Cabrera returned home
between 11:00 and 11:30 p.m. She found Driver asleep, with the baby lying near
Driver at the foot of the couch.  The
baby was not breathing.  Cabrera woke
Driver. Driver and Cabrera rushed with the baby to a neighbor’s apartment to
call 911.  Cabrera performed CPR until
paramedics arrived, but the baby did not respond.  
Medical providers declared the baby dead at the
hospital at 12:25 a.m.  Dr. Sara Doyle
performed an autopsy.   After reviewing
the toxicology reports, she determined that the cause of the baby’s death was
acute cocaine toxicity, ingested by mouth. 
The toxicology report reflected that the baby had a lethal amount of cocaine
and cocaine metabolite in his stomach and blood stream.[1]  Dr. Doyle testified that the child also had a
small scrap of wrapping paper in his stomach. 
She further testified that the elevated levels of cocaine that remained in
the baby’s stomach at the time of his death indicate that he had ingested the cocaine
less than four to six hours before he died. 

Investigating officers had searched the apartment on
the night of December 28, but they found no cocaine. The officers testified the
apartment was clean and decorated for the holidays, and the child appeared well
cared for and healthy.  
Driver did not testify at trial, but the trial court
admitted his statements to investigating officers and the grand jury. First,
the State played a recording and circulated a transcript of Sergeant Darrell
Robertson’s interview with Driver.  Driver
first denied bringing any drugs into the apartment.  He then admitted that the baby had ingested
the cocaine “probably from my hands.”  Driver
told the officer that the baby might have eaten residue of rock cocaine off of
Driver’s hands because “[h]e was teething and he’s always biting my hands.”  He later stated that his hands were “the only
way that I see cocaine would be in my baby’s system.”  He also stated that he had never seen Cabrera
use cocaine. 
Driver defended himself to Robertson, telling him
that he washed his hands, although not every day, and that he had not handled
any cocaine in a couple of days before the baby’s death, and that he “never [thought]
that this would happen.”  
Second, the State played a recording and transcript
of Driver’s testimony to the grand jury. 
In that testimony, Driver admitted to cutting and handling cocaine the day
before his son’s death.  Driver stated he
“kept” a couple of stones, around a quarter, of cocaine, in his hand, but he again
testified that he never brought the cocaine into the home, and denied placing
it in Christmas wrap.  Driver further testified
he was the only adult present caring for the child that day, though his sister
had visited earlier in the day.  After
the prosecutor suggested that he may have fed the baby cocaine by accident,
Driver agreed that he might have had a tiny residue amount of cocaine on his
hands that the baby could have ingested when Driver put Ora-Gel in the baby’s
mouth.  He also responded affirmatively
to a grand juror’s inquiry that the events leading to the baby’s death could
have happened because Driver was “cutting at the house”, and then later picked
up the baby because he was in charge of his care and the baby was teething.
At the charge conference, Driver requested
instructions on manslaughter and criminally negligent homicide.  The trial court denied the requests.  The jury found Driver guilty and, in a
special issue, found that the cocaine constituted a deadly weapon.  At the punishment stage, the trial court admitted
Driver’s stipulation to seven convictions before and after the baby’s death,
including three convictions for cocaine possession and one conviction for
delivery of cocaine.  The jury assessed
Driver’s punishment at life in prison.  
Felony
Murder 
A defendant commits felony murder if
he “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, he commits or attempts to commit an act
clearly dangerous to human life that causes the death of an individual.”  See Tex. Penal Code Ann. § 19.02(b)(3)
(West 2003).   In this case, the State charged Driver with the underlying felony offense
of possession of less than 1 gram of cocaine. It further charged that the act
clearly dangerous to human life causing the child’s death was “allowing the
child to ingest cocaine.” Driver challenges the sufficiency of the evidence to
support the jury’s findings that he intentionally possessed cocaine and that he
committed an act dangerous to human life. 

A.      Standard
of Review
When evaluating the legal sufficiency
of the evidence, we view the evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979); Drichas
v. State, 175 S.W.3d 795,
798 (Tex. Crim. App. 2005).  The standard
is the same for both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  We do not resolve any conflict of fact, weigh
any evidence, or evaluate the credibility of any witnesses, as this is the
function of the trier of fact.  See
Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999).
B.      Legal
Possession of Cocaine 
A person
commits the offense of possession of cocaine if he knowingly or intentionally
possesses it in the prescribed amount, by aggregate weight, including
adulterants or dilutants.  See Tex.
Health & Safety Code Ann. §§ 481.102(3)(D) & 481.115 (West
2010).  To prove possession, the State
must prove that the accused (1) exercised control, management, or care over the
substance and (2) knew the matter possessed was contraband.  Evans
v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006).  If a defendant does not have exclusive
possession of the place where the contraband is found, then independent facts
and circumstances must link him to the drugs. 
Poindexter v. State, 153
S.W.3d 402, 406 (Tex. Crim. App. 2005); Lair
v. State, 265 S.W.3d 580, 585 (Tex. App.—Houston [1st Dist.] 2008, pet.
ref’d).  “Regardless of whether the
evidence is direct or circumstantial, it must establish that the defendant's
connection with the drug was more than fortuitous.”  Lair,
265 S.W.3d at 585.  Mere presence at the
location where drugs are found is thus insufficient, by itself, to establish
actual care, custody, or control of those drugs.  Evans,
202 S.W.3d at 162.   
          Texas courts have set forth a
non-exclusive list of possible links to establish a person’s knowing possession
of contraband.  Lair, 265 S.W.3d at 586.   These links are:
(1) the defendant’s presence
when a search is conducted; (2) whether the contraband was in plain view; (3)
the defendant’s proximity to and the accessibility of the narcotic; (4) whether
the defendant was under the influence of narcotics when arrested; (5) whether
the defendant possessed other contraband or narcotics when arrested; (6)
whether the defendant made incriminating statements when arrested; (7) whether
the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia were present; (11) whether the defendant owned
or had the right to possess the place where the drugs were found; (12) whether
the place where the drugs were found was enclosed; (13) whether the defendant
was found with a large amount of cash; and (14) whether the conduct of the
defendant indicated a consciousness of guilt. 

 
Id.  The number
of links is not dispositive, rather the logical force of all of the direct and
circumstantial evidence determines possession. 
Evans, 202 S.W.3d at 162.
Driver
contends the State failed to show that he intentionally and knowingly possessed
cocaine on December 28, 2006.  He observes
that, while he admitted that he had possessed cocaine in the recent past before
the homicide, he denied bringing any cocaine into the apartment, and none was
found there when police searched it.
We conclude
that the logical force of the evidence supports the jury’s conclusion that
Driver possessed the cocaine that poisoned his son.  The State presented evidence Driver was the
only adult present during the time that the child ingested cocaine, which had
occurred within four to six hours before Cabrera returned home. Neither he nor
the baby left the apartment that day except to sit on the front porch.  Driver was in proximity to the cocaine for it
to be found in the stomach of his eight-month-old son under his exclusive care.  During the relevant time, Driver was in the
sole possession of the enclosed area of the apartment where the child ingested
the cocaine.  Although Driver denied
bringing cocaine into the apartment, he spent a good bit of the afternoon
outside the apartment on the front porch, with the baby in his lap.                   
Driver also
made incriminating statements, some of them under oath.  The jury heard Driver’s admissions to Sgt.
Robertson and the grand jury that he had handled and cut cocaine within a day
or two of his son’s death.  The jury
heard him admit to the grand jury that “I had, like, a couple of stones, like a
quarter,” that he kept in his hand.  Driver
also stated that they only way he could conceive how the baby ate cocaine was that
cocaine residue remained on his hands.  
The
contrary evidence does not negate the logical force of these links so as to set
aside the jury’s verdict.  Driver
observes that law enforcement officers did not find any evidence of cocaine in
the apartment.  And, Driver never
admitted bringing drugs into the apartment. 
Although Driver denied bringing his drugs home, the jury could have
accepted his admissions that he regularly possessed cocaine and literally kept
some in his hand, including the night before the baby’s death, but reject his
statement that he did not keep it at the apartment or handle it that evening,
given the evidence that the baby ingested it while in Driver’s care.   Driver also admitted that he had spent time
that day on the front porch outside the apartment,  holding the child in his lap.  We defer to the jury’s resolution of the conflict
between Driver’s statement as to the timing of his cocaine possession, and the
autopsy evidence that the child ate cocaine while in Driver’s sole care.  See Dewberry, 4 S.W.3d at 740. We hold that the
logical force of Driver’s admissions
and his presence as the only adult when the baby ingested cocaine provide
legally sufficient evidence that he possessed cocaine on the night in question.   See Evans, 202 S.W.3d at 162.   
C.      Act
Clearly Dangerous to Human Life
Driver
asserts the State failed to present any evidence that he committed an “act”
clearly dangerous to human life in connection with his possession of cocaine.  He relies on the Penal Code definition of an
act that requires bodily movement.  See Tex.
Penal Code Ann. §1.07(a)(1) (West Supp. 2010).  He asserts that mere possession does not
constitute an act clearly dangerous to human life.  
We disagree
that the possession of cocaine as an underlying felony to felony murder
forecloses proof of bodily movement that constitutes an act clearly dangerous
to human life, or as the State charged in this case, “allowing” a child to
ingest cocaine.  In this case, the jury
heard testimony of the limited window of time in which the baby ingested
cocaine and the fact that Driver was the only adult present.  The jury heard Driver’s admission to handling
and cutting cocaine either a day or two days before his son’s death, and his
acknowledgement that the baby could have ingested cocaine residue from Driver’s
hands.  Conduct that might not be
dangerous to an adult can be clearly dangerous to a young child.  See
King v. State, No. 05-08-01716-CR,
2010 WL 2293418, at *3 (Tex. App.—Dallas June 9, 2010, pet. dism’d untimely
filed) (mem. op., not designated for publication) (leaving 10-month-old
unattended in filling bathtub constitutes act clearly dangerous to human life).  
Here, there
is a causal nexus between the possession of cocaine and the death.  Driver’s act of handling cocaine and placing
the child in the proximity of it— so as to allow the child to eat it—was a
clearly dangerous act.  Sgt. Robertson
testified that cocaine is a deadly weapon: he has “seen it kill many people”.  Viewing the evidence in the light most
favorable to the verdict, the State presented sufficient evidence such that a
rational jury could find Driver handled cocaine in a manner so that his infant
son could eat it, and that he placed the child in a dangerous proximity to his possession
of it. We hold that this evidence meets the statutory definition of an “act
clearly dangerous to human life.”  See Christian v. State, 286 S.W.3d 63,
66 (Tex. App.—Texarkana 2009, pet. ref’d.) (holding that definition of felony
in felony murder statute allows delivery of cocaine to be underlying felony); Nevarez v. State, 847 S.W.2d 637, 643
(Tex. App.—El Paso 1993, pet. ref’d) (upholding as legally sufficient evidence
felony possession of marijuana as underlying felony under felony murder rule); see also State v. Bankert, 117 N.M. 614,
621 (1994) (upholding possession with intent to distribute as underlying felony
for felony murder); State v. Jacques,
270 Kan. 173, 181 (2000) (same, and concluding that cocaine possession is a
“forcible felony” precluding self-defense instruction).[2]
Driver
responds that contrary evidence negates Driver’s possession as the act that
caused the child’s death.  For example,
he observes, the child could have ingested the cocaine from a pacifier found on
the floor near the couch, if that pacifier had come in contact with cocaine on
the floor or from another source.  Such
speculation is not supported by the evidence: no cocaine was found in the
house, and Driver admitted that the “only way” he knew that the baby could have
ingested cocaine was from Driver’s hands. We hold the evidence was legally
sufficient to support the jury’s findings that Driver’s possession of cocaine,
together with his placing his son in circumstances that allowed his son to
ingest it, constitute actions that were clearly dangerous to his son’s life.  Cf.
Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref’d) (“Texas
case law is replete with holdings that when an adult defendant has had sole
access to a child at the time its injuries are sustained, the evidence is
sufficient to support a conviction for injury to a child, or murder if the
child dies.”) (collecting cases).
Lesser Included Offense Instructions
Driver
contends the trial court erred by denying his request for a jury instruction on
manslaughter and criminally negligent homicide as lesser included offenses.   We use a two-step analysis to determine whether an appellant
is entitled to a lesser included offense instruction.  Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau v.
State, 855 S.W.2d 666, 672–73
(Tex. Crim. App. 1993).  First, 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.  See Tex.
Code Crim. Proc. Ann. art. 37.09 (West 2006). We compare the elements of
the offense as they are alleged in the indictment or information with the
elements of the potential lesser included offense.  Hall, 225 S.W.3d at 535–36.
Second, some evidence must exist in
the record that would permit a rational jury to find the defendant is guilty
only of the lesser offense, if he is guilty at all.  Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.
2005); Rousseau, 855
S.W.2d at 672–73. There must be some evidence from which a rational jury could
acquit the appellant of the greater offense while convicting him of the lesser
included offense.  Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998).  The court may not consider
whether the evidence is credible, controverted, or in conflict with other
evidence.  Id.  Anything more than a scintilla of evidence
entitles a defendant to a lesser charge.  Hall, 225 S.W.3d at 536.
In
examining the first step, we look to the definitions of manslaughter and
criminally negligent homicide.  Penal
Code Section 19.04 (a) defines manslaughter as recklessly causing the death of
an individual.  Tex. Penal Code Ann. § 19.04(a) (West 2003). Under Texas
Penal Code § 6.03(c),
[a] person acts recklessly,
or is reckless, with respect to circumstances surrounding his conduct or the
result of his conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or the result
will occur. The risk must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the actor's
standpoint.
 
Tex. Penal Code Ann. § 6.03(c) (West 2003). 
 Section 19.05 defines criminally negligent
homicide as causing the death of another death by criminal negligence.  See Tex. Penal Code Ann. 19.05 (West 2003).  Under Texas Penal Code § 6.03(d),
[a] person acts with criminal negligence ... with
respect to ... the result of his conduct when he ought to be aware of a
substantial and unjustifiable risk that ... the result will occur.  The risk must be of such a nature and degree
that the failure to perceive it constitutes a gross deviation from the standard
of care that an ordinary person would exercise under all the circumstances as
viewed from the actor's standpoint.
 
See Tex. Penal
Code Ann. § 6.03(d) (West 2003).  Felony
murder, in comparison, is the commission of a killing while in the course of
committing another felony, coupled with committing or attempting to commit an act “clearly dangerous
to human life.”  Compare
Tex. Penal Code Ann. §
19.02(b)(3) with Tex. Penal Code Ann. §§19.04. 19.05
& 6.03(c)&(d).
Felony murder is an unintentional
murder committed in the course of committing a felony.  Threadgill
v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004).  The state must prove the elements of the
underlying felony, including the culpable mental state for that felony, but no
culpable mental state is required for the murder committed.  Lomax v. State, 233 S.W.3d 302, 306–07 (Tex. Crim. App.
2007).  In Lomax, the Court of Criminal Appeals overruled its prior precedent holding
that Section 19.02(b)(3) required a culpable mental state, and that the
underlying felony must supply it.  Id. (holding that felony DUI, strict
liability offense, can be underlying felony to felony murder conviction because
felony murder does not require proof of any mental state associated with causing
death of another).  The Lomax
court concluded that the plain language of the felony murder statute required
proof of the underlying felony, but does not require any proof of an
accompanying mental state with regard to either causing the death of another or
committing an act clearly dangerous to human life.  See id. at 307 & n.16; see also Tex. Penal Code Ann. § 19.02(b)(3) (West 2003).   The
Lomax court held that a strict
liability felony offense can support a felony murder conviction, and in a
footnote observed that the “clearly dangerous” aspect of the requirement of an
“act clearly dangerous to human life” carries with it no requirement of a
culpable mental state.  Lomax, 233 S.W.3d at 307 & n.16
(citing Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App.
1983)).
Driver
relies on Kuykendall v. State to
contend that criminally negligent homicide can be lesser included offenses to
felony murder.   See 609 S.W.2d 791, 796 (Tex. Crim. App. 1980), overruled on other grounds by Cook v. State, 858 S.W.2d 467 (Tex. Crim.
App. 1993).  But in Lomax, the Court of Criminal Appeals rejected the very transferred
intent analysis and caselaw on which Kuykendall
relied in holding that negligent homicide could be a lesser included offense of
felony murder.  Compare Lomax, 233 S.W.3d at 307 (overruling Rodriquez v. State and holding that a transferred intent theory
does not apply in felony murder cases) with
Kuykendall, 609 S.W.2d at 794–95 (relying on Rodriquez v. State to hold that criminally negligent homicide can
be a lesser included offense to a felony with a greater mens rea under a theory
of transferred intent).  Given the Court
of Criminal Appeals’ disavowal in Lomax of
the caselaw and theory on which Kuykendall
was based, we reject Driver’s contention that Kuykendall required the trial court in this case to submit Driver’s
requested lesser included offenses.  
Rather, this
Court, as well as our sister court in Austin, have held that the reasoning in Lomax dictates that manslaughter and
criminally negligent homicide cannot be a lesser included offense of felony
murder because the former offenses carry with them elements of proof a reckless
mental state or ignorance of a substantial and unjustifiable risk, respectively,
in causing another’s death; in contrast, felony murder requires proof of neither.
   See Hernandez v. State, No.
03-08-00170-CR, 2010 WL 1632627, *10 (Tex. App.—Austin Apr. 23, 2010, no pet.) (mem.
op., not designated for publication) (upholding trial court’s refusal to submit
manslaughter and criminally negligent homicide as lesser included offenses of
felony murder because “the State was not required to prove appellant’s culpable
mental state with regard to either (1) the child's death or (2) the act clearly
dangerous to human life”); Klepper v.
State, No. 01-07-00783-CR, 2009 WL 1635133, *7 (Tex. App.—Houston [1st
Dist.] June 11, 2009, pet. ref’d) (mem. op., not designated for publication)
(upholding trial court’s refusal to submit manslaughter as lesser included
offense of felony murder); see also
Wooten v. State, 267 S.W.3d 289, 305 (Tex. App.—Houston [14th Dist.] 2008,
pet. ref’d) (concluding that criminally negligence homicide cannot be lesser
included offense of intoxication manslaughter because latter requires no
culpable mental state in causing death of individual).[3]
Under Lomax, felony murder requires no
culpable mental state in causing the death of an individual.  See
Lomax, 233 S.W.3d at 307.  Manslaughter requires proof of recklessness
in causing the death of an individual, a mental state not required to prove
felony murder.  Accordingly, we hold that
manslaughter is not a lesser included offense of felony murder.  See Hall,
225 S.W.3d at 535–36;  Klepper, 2009 WL 1635133, at *7.  Thus, the trial court did not abuse its
discretion in refusing the defense’s request to submit it.  
Similar
reasoning applies to the submission of criminally negligent homicide as a
lesser included offense.  Criminally
negligent homicide requires proof that the defendant caused the death of
another due to his criminal negligence, a finding not required to prove felony
murder.  See Hernandez, 2010 WL
1632627, at *10.  Accordingly, we hold
that the trial court did not abuse its discretion in refusing to instruct the
jury on a lesser included offense of criminally negligent homicide.  
The Hernandez decision is particularly
applicable here.  In that case, the
Austin Court of Appeals rejected the argument that criminally negligent
homicide can be lesser included offenses to felony murder based on injury to a
child, observing that the elements of negligent homicide require proof that the
defendant caused another’s death by criminal negligence. Id.   Because such a conviction
requires a finding that the defendant caused another’s death due to his
criminal negligence, criminally negligent homicide cannot be proved by the same
or less facts than those required to prove felony murder— which requires no
finding of negligence in connection with causing another’s death so long as it
is related to the commission of an underlying felony. 
We hold
that Driver did not meet the first prong of the Hall test with respect to his requested instructions because
neither manslaughter nor criminally negligent homicide qualify as lesser
included offenses of felony murder, as both of these offenses contain an
element of proof that felony murder does not require.  See Hall, 225 S.W.3d at 535–36. 
Accordingly, the trial court did
not err in denying Driver’s request for instructions on manslaughter and criminally
negligent homicide as a lesser included offense of felony murder.   
Conclusion
          We hold that the evidence was legally
sufficient to support the conviction for felony murder.  We further hold that the trial court did not
err by denying the request for manslaughter and criminally negligent homicide
instructions. We therefore affirm the judgment of the trial court.  
 
 
 
                                                          Jane
Bland                                                                                                          Justice

 
Panel consists of Chief Justice
Radack and Justices Bland and Massengale.
Publish.   Tex. R. App. P. 47.2.




[1]           Cocaine
metabolite, benzoylecgonine in this case, is the chemical cocaine breaks-
down
into as the body processes the drug.  


[2]        We
publish this case in part because there is little published authority in this
area.  In an unpublished opinion, our
court upheld a felony murder conviction based on an underlying cocaine
possession offense in a case in which the defendant confessed to police that
she had injected cocaine into the decedent while in the course of possessing
and delivering cocaine.  See Stanford v. State, 01-87-00899-CR, 1988
WL 113997 at *2 (Tex. App.—Houston [1st Dist.] Oct. 27, 1988, pet. ref’d.)
(mem. op., not designated for publication). 



[3]
          We
cite to the unpublished decisions in Hernandez
and Klepper because they are the
only post-Lomax authorities to
address this issue, and we publish this opinion.   


