Fraser v. State

• Decision Date: 11 September 2019
• Docket Number: NO. PD-0711-17,PD-0711-17
• Parties: Marian FRASER, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

583 S.W.3d 564

Marian FRASER, Appellant

v.The STATE of Texas

NO. PD-0711-17

Court of Criminal Appeals of Texas.

Delivered: September 11, 2019

Keller, P.J., delivered the opinion of the Court in which Keasler, Hervey, Richardson, Yeary, Newell and Keel, JJ., joined.

We held in Johnson that any felony may serve as a predicate for felony murder as long as it is not manslaughter or a lesser-included offense of manslaughter.¹ We also that held that, for the purpose of serving as a predicate felony, "[t]he offense of injury to a child is not a lesser included offense of manslaughter."² Nevertheless, the court of appeals in this case concluded that certain versions of the offense of injury to a child can be lesser-included offenses of manslaughter for the purpose of the felony-murder statute.³ The court of appeals held that the same could be said for certain versions of the child-endangerment offense.⁴ We disagree and reverse the judgment of the court of appeals. In assessing whether a particular felony is a lesser-included offense of manslaughter for the purpose of the felony-murder statute's manslaughter exclusion, a court must consider the offense of manslaughter only by its statutory elements. Because the victim's status as a child is necessarily an element of the offenses of injury to a child and child endangerment, and that element is not within (or deducible from) the statutory elements of manslaughter, the offenses of injury to a child and child endangerment are never lesser-included offenses of manslaughter for the purpose of the felony-murder statute's manslaughter exclusion.

I. BACKGROUND

A. Facts Leading to Prosecution

Appellant ran a licensed day care center out of her home. She provided care for twelve children, all typically under two years of age. During an afternoon nap at the center, one of the children, C.F., stopped breathing, vomited, and became unconscious. Emergency personnel transported C.F. to the hospital, but despite the best efforts of the doctors, she died. A toxicology report revealed that C.F. had a high level of the drug diphenhydramine in her body. Diphenhydramine is an antihistamine common in certain over-the-counter drugs such as Benadryl. Testing of other children at the day care center showed that most of them had been exposed to diphenhydramine.

B. Indictment and Jury Charge

Appellant was indicted for felony murder. The felony-murder count contained two paragraphs, each alleging a different predicate felony. The first alleged the predicate felony of injury to a child, as follows:

[Appellant] ... did then and there commit or attempt to commit an act clearly dangerous to human life, namely, by administering diphenhydramine to [C.F.] and/or causing [C.F.] to ingest diphenhydramine, which caused the death of [C.F.], and the said Defendant was then and there in the course of or attempted commission of a felony, to-wit: Injury to a Child."

The second paragraph contained identical language, except that it alleged the predicate felony of endangering a child.⁵

The abstract portion of the jury charge tracked the statutory language of the offense of felony murder.⁶ It also instructed the jury on the elements of the predicate felony offenses of injury to a child and endangering a child, and those elements included all four of the potentially applicable culpable mental states for those offenses: intentionally, knowingly, recklessly, and with criminal negligence.⁷ The application paragraph of the jury charge listed injury to a child and endangering a child as alternative methods of satisfying the predicate felony element of felony murder.

C. Appeal

The court of appeals began its analysis by saying, "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 ."⁸ In support of that contention, the court of appeals discussed our opinions in Lawson and Johnson.⁹ The court pointed out that Lawson held that an "intentional" or "knowing" aggravated assault could support a felony-murder conviction because that kind of aggravated assault was not a lesser-included offense of manslaughter (because it requires a greater culpable mental state than the "reckless" culpable mental state required by manslaughter).¹⁰ The court of appeals believed that this distinction applied to the holding in Johnson (that injury to a child was not a lesser-included offense of manslaughter) because Johnson involved a prosecution only for intentionally causing injury to a child.¹¹ The court of appeals acknowledged that Johnson did not mention the culpable mental state applicable to the injury-to-a-child offense at issue in that case,¹² but the court of appeals reviewed the clerk's record in Johnson and found the "intentional" culpable mental state in the jury charge.¹³ Consequently, the court of appeals concluded that Johnson left open the possibility of reckless or criminally negligent injury to a child being a lesser-included offense of manslaughter.¹⁴

The court of appeals further concluded that the offense of reckless or criminally negligent injury to a child is in fact a lesser-included offense of manslaughter because, the court claimed, it is established by proof of the same facts required to establish manslaughter and differs only in the respect that a less serious injury or risk of injury suffices to establish its commission.¹⁵ According to the court of appeals, reckless or criminally negligent injury to a child is established by the same facts as manslaughter because "every ‘child’ is an ‘individual’ and every ‘death’ is both a ‘serious bodily injury’ and a ‘bodily injury.’ "¹⁶ The court of appeals engaged in a similar analysis with respect to the offense of endangering a child through recklessness or criminal negligence.¹⁷

Looking at the jury charge in Appellant's case, the court of appeals observed that the predicate felonies (injury to a child and endangering a child) contained all four of the statutory culpable mental states: intent, knowledge, recklessness, and criminal negligence.¹⁸ Given the reasoning discussed above, the court of appeals concluded that the predicate felonies were valid on some of the theories submitted to the jury (intentional or knowing conduct) but invalid on other theories (reckless or criminally negligent conduct).¹⁹ Because it found that the jury charge contained invalid theories of felony murder, the court of appeals reversed the conviction and remanded the case for a new trial.²⁰

D. Discretionary Review

The State contends that injury to a child and endangering a child are never lesser-included offenses of manslaughter because they include the element that the victim is a child and manslaughter does not include that element. Appellant contends that the reckless and criminally negligent versions of the offenses of injury to a child and endangering a child are lesser-included offenses of manslaughter in this indictment . She claims that we should use the cognate-pleadings test from Hall²¹ to determine whether the alleged predicate felonies are lesser-included offenses and that, because the victim's status as a child is in the indictment, that status has to be incorporated as one of the elements of manslaughter. She argues that this result is required by this Court's analysis in Salazar²² that an offense is lesser-included if it can be deduced from the allegations in the indictment and that the result is also supported by appellate court decisions holding injury to a child to be a lesser-included offense of capital murder when the victim is alleged in the indictment to be a child.

II. ANALYSIS

A. Cognate Pleadings Test Inapplicable

Under the cognate-pleadings test, the statutory elements of an offense and non-statutory allegations in the indictment combine to describe what the defendant is charged with.²³ Consequently, as long as all of the elements of a purported lesser offense are contained (or deducible from what is contained) in the indictment, then the purported lesser offense can be said to be "lesser-included" of the indicted offense.²⁴ This allows a defendant a broader ability to obtain the submission of a lesser-included offense than if he were limited to the statutory elements of the charged offense. Consequently, if the victim's status as a "child" is included as a non-statutory allegation in the indictment, then it would be an element of the charged offense for the purpose of determining what lesser-included offenses may be submitted in the jury charge.²⁵

But Appellant's indictment in this case is not for manslaughter; it is for felony murder. And the claimed error is not that the trial court failed to submit a lesser-included-offense instruction. Appellant's claim is that the injury-to-a-child offense, as pled, does not qualify as a valid predicate for felony murder. Hall and Salazar involved defendants who sought the submission of a lesser-included offense, and those cases compared the charged offense to the requested lesser offense.²⁶ The same is true for the capital murder cases in which the defendant requests the lesser-included offense of injury to a child.²⁷ In this case, however, the charged offense is not being compared to anything. Instead, the predicate felonies (injury to a child and endangering a child), which are themselves lesser-included offenses of the charged offense, are compared to an uncharged statutory offense (manslaughter) that is disqualified from being a predicate felony.

The cognate-pleadings test allows a court to look to non-statutory elements only for the charged offense; lesser offenses are examined only for their statutory elements.²⁸ It is not clear whether manslaughter is a lesser-included offense of felony-murder, but that is not something we have to decide here. Manslaughter is a less serious offense than felony murder, and it is at least true that manslaughter is more like a lesser-included offense of felony murder than a stand-in for felony...