“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?”
Fraser murdered a child in her in-home daycare by administering the child a lethal dose of Benadryl. She was convicted of felony-murder with the underlying felony being either injury to a child or child endangerment.
The court of appeals reversed, holding that the felony-murder conviction was not authorized by the law. The act alleged in support of felony murder—an act clearly dangerous to human life—was subsumed by the underlying felonies. And reckless or criminally negligent injury to a child and child endangerment are lessers of manslaughter. Although “intentional” in injury to a child is not a lesser of manslaughter, the jury charge did not limit the jury’s consideration to “intentional” conduct. Therefore, according to the court, the lessers allowed the State to bootstrap what would otherwise be a manslaughter offense into felony-murder when manslaughter is excluded as a qualifying felony under the felony-murder rule.
The State contends that precedent from the Court of Criminal Appeals, as other courts of appeals have recognized, support the conclusion that reckless or criminally negligent injury to a child or reckless or criminally negligent child endangerment can underlie a felony-murder conviction even when the act underlying the felony and the act clearly dangerous to human life are the same. For example, Contreras v. State, 312 S.W.3d 566 (Tex. Crim. App. 2010), holds that injury to a child, with its four culpable mental states, can qualify as an underlying felony. The State argues that the court of appeals wrongly implied that felony-murder is a result-oriented offense because it plainly dispenses with a culpable mental state. Finally, the State asserts that, little of the former merger doctrine still exists but that even if it does, it does not support the conclusion that the underlying felonies here were subsumed.