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Fraser v. State

Court of Appeals of Texas, Seventh District, Amarillo

June 9, 2017

MARIAN FRASER, APPELLANT
v.
STATE OF TEXAS, APPELLEE

         On Appeal from the 19th District Court McLennan County, Texas Trial Court No. 2014-158-C1; Honorable Ralph T. Strother, Presiding

          Before CAMPBELL and HANCOCK and PIRTLE, JJ. [1]

          OPINION

          PATRICK A. PIRTLE, JUSTICE

         Appellant, Marian Fraser, was convicted of the offense of murder[2] and sentenced to fifty years confinement and a fine of $10, 000. Her appeal addresses a unique issue regarding application of the felony-murder rule-specifically the question of whether a defendant may be convicted of the offense of murder, pursuant to the provisions of section 19.02(b)(3) of the Texas Penal Code, when the underlying felony is either reckless or criminally negligent injury to a child or reckless or criminally negligent child endangerment, and the acts that constitute those offenses are the same "act clearly dangerous to human life" charged in the indictment. Finding 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, we reverse Appellant's murder conviction and remand this proceeding to the trial court for a new trial.

         Background

         In 2012, Appellant operated a state-licensed child daycare center out of her home in Waco, Texas. Appellant customarily limited her care to twelve infants, all under the age of two years. The infants were kept on a well-defined daily schedule that included a naptime between the hours of 12:00 and 3:00 p.m. Four-month old Clara Felton was one of the infants placed in Appellant's care. On March 4, 2013, Clara was found by Appellant in her nap room unresponsive and not breathing. Despite the best efforts of the first-responder emergency medical personnel and hospital staff, Clara was later pronounced dead. Subsequent toxicology tests revealed a toxic level of diphenhydramine in Clara's blood. Diphenhydramine is an antihistamine commonly used as the active ingredient in over-the-counter medications such as Benadryl, Tylenol P.M., and other medications commonly used to treat allergy and cold symptoms.

         On January 22, 2014, a McLennan County Grand Jury indicted Appellant for the offense of murder pursuant to the provisions of section 19.02(b)(3) of the Texas Penal Code, based upon the theory she "did then and there commit or attempt to commit an act clearly dangerous to human life, namely, by administering diphenhydramine to [the victim] and/or causing [the victim] to ingest diphenhydramine, which caused the death of [the victim], and the said [Appellant] was then and there in the course of or attempted commission of a felony, to-wit: Injury to a Child, "[3] (Paragraph I) or "Endangering a Child"[4] (Paragraph II).

         In May 2015, a jury trial commenced and Appellant entered a plea of not guilty. During that trial, the State presented expert testimony establishing that, although diphenhydramine is generally considered to be a safe drug when properly administered, it can become lethal if it builds up in a child's system, either through repeated smaller dosages over a period of time or by the administration of one large dose. The State's expert witness explained that because diphenhydramine can cause sedation, it should not be given to children under age two. The witness further established that it takes approximately two years for a child's liver to fully develop and that the giving of medications to a child whose liver is not yet fully developed "can have unknown consequences and sometimes death . . . ." Accordingly, the expert opined that causing diphenhydramine to be ingested by a four-month old infant constituted "an act clearly dangerous to human life."

         Appellant testified in her own defense. While acknowledging that giving diphenhydramine to an infant child under two years of age was potentially dangerous, she denied she was the person who administered it to Clara. Appellant insisted infants in her care were never given any substance containing diphenhydramine. The State, however, produced significant circumstantial evidence to the contrary. For instance, hair follicle samples from fourteen other children who had been under Appellant's care, taken subsequent to Clara's death, all tested positive for diphenhydramine. Evidence also showed that, while at the daycare, Clara was never given any medications by any person other than Appellant. Furthermore, prior to their naptime, Appellant always prepared the children's bottles. Clara's parents further denied ever giving her any medication containing diphenhydramine. Also, following Clara's death, in a conversation regarding the "licensing lady" being at the daycare facility, Appellant sent a text message to her daughter asking her to move "the kids [sic] medicine that is in the cabinet in the daycare room [to her] closet. Just in case she looks."

         The general abstract provisions of the Charge of the Court given at the guilt/innocence phase of the trial stated that "a person commits the offense of 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, she commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual." Manslaughter was never defined in the charge and the application paragraph omitted the provision "other than manslaughter" altogether. Concerning the issue of culpable mental states, the charge included the full statutory definitions of intentional, knowing, reckless, and criminal negligence, without any effort being made to distinguish result-oriented offenses from conduct-oriented offenses. The jury was also charged on three "lesser offenses" of: (1) "injury to a child causing serious bodily injury" by intentional or knowing conduct, (2) "injury to a child causing serious bodily injury" by reckless conduct, and (3) "endangering a child" by intentional, knowing, or reckless conduct. The charge did not include manslaughter as a lesser-included offense.

         After being charged by the trial court, the jury convicted Appellant of felony-murder in connection with Clara's death. The jury then assessed Appellant's sentence at fifty years confinement and a fine of $10, 000. By six issues, Appellant contends (1) the evidence is legally insufficient to support a conviction for felony-murder, (2) the evidence is factually insufficient to support a conviction for felony-murder, (3) the trial court erred by admitting a "grossly excessive number of extraneous offenses, " (4) the trial judge violated her right to a fair and impartial judge, (5) the charge of the court contained egregious errors, and (6) the charge of the court erroneously allowed a felony-murder conviction based on reckless or criminally negligent conduct. The substantive objection underlying issues one, two, and six is not the sufficiency of the evidence to support Appellant's conviction, but is, instead, whether she may be convicted of the offense of murder, pursuant to the felony-murder provisions of section 19.02(b)(3), when the underlying felony is either reckless or criminally negligent injury to a child or reckless or criminally negligent child endangerment, and the acts that constitute those offenses are the same "act clearly dangerous to human life" charged in the indictment.

         Because issues one, two, and six are subsumed within the general question of whether reckless or criminally negligent conduct can form the basis of a precedent felony offense sufficient to support a felony-murder conviction, we will discuss those three issues together. While our resolution of those issues renders unnecessary the consideration of issues three, four, and five, because we are remanding this matter to the trial court for further proceedings, in the interest of justice, we will address those issues separately. See Tex. R. App. P. 47.1.

         Issues One, Two, and Six-Felony-Murder

         Standard of Review

         While Appellant's first two issues address the legal and factual sufficiency of the evidence to support her conviction, the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support a conviction is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). When examining the sufficiency of the evidence, appellate courts view the evidence in the light most favorable to the verdict. This requires the reviewing court to defer to the jury as the sole judge of the credibility of witnesses and the weight to be given their testimony, giving "full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. A reviewing court must therefore determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). When the record supports conflicting inferences, a reviewing court must presume that the fact finder resolved the conflicts in favor of the verdict and defer to that determination. See Jackson, 443 U.S. at 326; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). After applying this analysis, if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, then the evidence is sufficient. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895. Furthermore, the "sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

         Murder

         In Texas, there are three statutorily-defined ways to commit the first degree felony offense of murder. First, a person commits the offense of murder if she intentionally or knowingly causes the death of an individual. See Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). Secondly, a person commits the offense of murder if she intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Id. at § 19.02(b)(2). Thirdly, a person commits the offense of murder if she commits or attempts to commit a felony, other than manslaughter, [5] and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, she commits or attempts to commit an act clearly dangerous to human life[6] that causes the death of an individual. Id. at § 19.02(b)(3).

         In each of these three subparts of section 19.02(b), the statutory focus and, therefore, the gravamen of the offense of murder is causing the death of an individual. Because of this statutory definition, murder is generally described as a "result-oriented" offense, meaning the proscribed conduct must have caused the death of the victim, as opposed to simply engaging in conduct that results in the death of the victim. Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003); Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994); Anaya v. State, 381 S.W.3d 660, 664 (Tex. App.-Amarillo 2012, pet. ref'd); Chaney v. State, 314 S.W.3d 561 (Tex. App.-Amarillo 2010, pet. ref'd). This is an often overlooked subtle, but critical, distinction.

         Manslaughter

         Manslaughter is also a result-oriented offense because a person commits that offense if she recklessly causes the death of an individual. Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013); Bigon v. State, 252 S.W.3d 360, 371 (Tex. Crim. App. 2008); Atkinson v. State, No. 13-16-00344-CR, 2017 Tex.App. LEXIS 2255, at *8 (Tex. App.-Corpus Christi March 16, 2017, no pet. h.). Therefore, the only distinguishing difference between murder and manslaughter is the mens rea, or the culpable mental state associated with the result of the defendant's conduct. Britain, 412 S.W.3d at 520. Even though section 19.02(b)(3) does not specify the culpable mental state associated with a felony-murder, the Texas Court of Criminal Appeals has made it clear that the underlying felony supplies the necessary mens rea. See Ex parte Easter, 615 S.W.3d 719, 721 (Tex. Crim. App. 1981).

         Felony-Murder

         A murder offense committed under section 19.02(b)(3) is generally referred to as a "felony-murder." Essentially, to sustain a conviction for felony-murder, the State must prove (1) a specific underlying felony offense (other than manslaughter), (2) an act clearly dangerous to human life, (3) the death of an individual, 4) causation (i.e., the act "clearly dangerous to human life" must cause the death), and (5) a causal connection between the underlying felony and the dangerous act ("in the course of and in furtherance of . . . or immediate flight from").[7] Because the Texas Penal Code specifically excludes manslaughter as the underlying felonious conduct, in order to constitute "murder" pursuant to the provisions of section 19.02(b)(3), the underlying felony offense must be an offense other than manslaughter or any lesser-included offense to manslaughter. Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999).

         While section 19.02(b)(3) dispenses with the inquiry into any mens rea accompanying the homicide itself, the theory behind a felony-murder is 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.[8] See Garrett v. State, 573 S.W.2d 543, 545 (Tex. Crim. App. 1978); Ex parte Easter, 615 S.W.2d at 721. As such, the sine qua non of a felony-murder is that moral blameworthiness sufficient to justify a murder conviction is supplied by the criminal conduct surrounding the act that causes death, when that conduct is clearly dangerous to human life and it is something other than the offense of manslaughter. Because the Legislature specifically excluded conduct that would otherwise be classified as manslaughter, 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.

         Analysis

         Here, the State's theory is that Appellant committed an act clearly dangerous to human life (administering diphenhydramine to Clara or causing her to ingest diphenhydramine), while in the course of committing the felony offense of either injury to a child or child endangerment.[9] While "injury to a child" and "child endangerment" can qualify as the underlying felony in a felony-murder prosecution, the two offenses do not qualify as such ipso facto. For instance, where the prosecution is based upon intentional conduct constituting injury to a child, a felony-murder prosecution would be authorized. See Johnson, 4 S.W.3d at 254 (injury to a child based on intentionally causing serious bodily injury). However, where, as here, neither the indictment nor the charge of the court limited the jury's consideration to conduct that was committed intentionally or knowingly (thereby permitting a conviction based upon reckless or criminally negligent conduct), we must examine the record further to determine whether the underlying felony supports a felony-murder conviction on that basis. In doing so, we must further analyze the underlying offense or offenses to determine (1) whether the offense as charged merged with the act clearly dangerous to human life and (2) whether that offense would constitute the offense of manslaughter or a lesser-included offense to manslaughter.

         Our analysis must begin with an understanding of the "merger doctrine" discussed in Garrett, 573 S.W.2d at 546. The merger doctrine looks to see if the act constituting the underlying felony and the act resulting in the homicide were the same. See Johnson, 4 S.W.3d at 256 n.3. It is important to note that this query is not the same as determining whether the underlying offense is a lesser-included offense to the offense of murder. Id. In this inquiry, we must determine if the act constituting the underlying felony and the act clearly dangerous to human life are one and the same.

         In Garrett, the defendant had an altercation with a store clerk. In the process of that altercation, the defendant pulled a gun in an attempt to frighten him. Unfortunately, the gun went off and the clerk was killed. Although the defendant maintained he had never intended to shoot the victim, he was nevertheless charged with felony-murder. The State's theory of prosecution was that in the course of committing the offense of aggravated assault (pulling a deadly weapon on the clerk) the defendant committed an act clearly dangerous to human life that caused the death of the clerk. The Texas Court of Criminal Appeals held that, in order to support a murder conviction under the felony-murder rule, "[t]here must be a showing of felonious criminal conduct other than the assault causing the homicide." Garrett, 573 S.W.2d at 546. Finding the underlying felony and the act clearly dangerous to human life resulting in death "were one and the same, " the Court found the acts merged and, therefore, appellant was "improperly prosecuted" under the felony-murder rule, resulting in the reversal of his conviction. Id.

         In 1982, the Court of Criminal Appeals reaffirmed the application of the merger doctrine set out in Garrett, in its opinion on original submission in Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1987).[10] There, the indictment alleged the felony offense of criminal mischief and further alleged that in the course of and in furtherance of such felony, the defendant committed an act clearly dangerous to human life, to-wit: shooting a gun into an occupied dwelling, which ultimately caused the death of the victim. The jury charge authorized conviction for the offense of "murder" by intentionally or knowingly causing the death of an individual or, alternatively, via the felony-murder rule by committing an act clearly dangerous to human life in the course of intentionally or knowingly committing the offense of criminal mischief. The Court observed that if the general verdict of the jury rested upon the State's felony-murder theory, the verdict could not stand based on the principles enunciated in Garrett. Aguirre, 732 S.W.2d at 322-23.

         After its opinion on original submission in Aguirre, but before its opinion on rehearing in that same case, the Court issued its opinion in Murphy v. State, 665 S.W.2d 116 (Tex. Crim. App. 1983). In Murphy, the indictment alleged the defendant committed the felony offense of arson by starting a fire in a habitation for the purpose of collecting insurance proceeds, and in the course and furtherance of the commission of that offense, committed an act clearly dangerous to human life, to-wit: starting a fire in a habitation, thereby causing the death of an individual. The appellant maintained that the merger doctrine operated to bar his prosecution because "the gist of the underlying felony, namely, 'starting a fire, ' was the exact same act alleged to have been clearly dangerous to human life and thus was 'inherent in the homicide.'" Reaffirming the merger doctrine espoused in Garrett, the Court found that the felony-murder rule did not apply in that case because there was a showing of felonious criminal conduct other than the "assault inherent in the homicide." Id. at 119. While the opinion in Murphy is not clear as to what felonious act other than arson lead to the victim's death, in Johnson, the Court speculated that it was because the underlying offense was a property offense rather than an assaultive offense. Johnson, 4 S.W.3d at 257.

         Then, on rehearing in Aguirre, the Court reversed its earlier ruling, holding the opinion on original submission untenable in light of Murphy. See Aguirre, 732 S.W.2d at 323. In the opinion on rehearing, the Court concluded that, like Murphy, the merger doctrine did not prohibit a felony-murder prosecution because the underlying felony at issue was a property offense (criminal mischief) rather than an assaultive offense inherent in the homicide.

         After Aguirre and Murphy, the Court again reaffirmed the merger doctrine in Johnson, 4 S.W.3d at 254. In doing so, however, it retreated from the "wholesale adoption" of that doctrine in every case based on an underlying assaultive offense. The Court expressly disavowed the overly broad statement that a conviction under section 19.02(b)(3) would lie only on a "showing of felonious criminal conduct other than the assault causing the homicide." Id. at 258. The Court indicated that the statement in Garrett should not be read as standing for the proposition that every assaultive offense, if alleged as the underlying felony, would merge with the act clearly dangerous to human life alleged in a felony-murder indictment. Id. at 255. The Court then stated:

[w]e hold Garrett did not create a general 'merger doctrine' in Texas. The doctrine exists only to the extent it is 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 ...

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