                                                                                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




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