FRASER, MARIAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0964-24

MARIAN FRASER, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
McLENNAN COUNTY

FINLEY, J., filed a concurring opinion.

CONCURRING OPINION

I join the Court’s sufficiency of the evidence analysis. I agree that under

our current jurisprudence, the evidence is sufficient to support Appellant’s

conviction for felony murder. But I’m skeptical. Our current felony murder

jurisprudence appears unsupported by the plain text of the statute.
FRASER CONCURRENCE — 2

In Texas, a person commits felony murder if the person:

[C]ommits 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, the person 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). This Court has interpreted the felony murder

statute to allow any felony that is neither manslaughter nor a lesser included

offense of manslaughter to serve as the underlying felony. Johnson v. State, 4

S.W.3d 254, 258 (Tex. Crim. App. 1999). Thus, under our current

jurisprudence, Appellant’s singular act—giving diphenhydramine to C.F.—is

sufficient to constitute both the felony (injury to a child) and the act clearly

dangerous to human life that caused the death of C.F. Id. This interpretation

of the felony murder statute, in my view, departs from Section 19.02(b)(3)’s

plain text.

To start, our current interpretation of the felony murder statute renders

meaningless the Legislature’s use of the word “and” in Section 19.02(b)(3). “The

use of the word ‘and’ between two words or phrases most commonly means that

the words or phrases on either side of the ‘and’ are required.” State v. Hardin,

664 S.W.3d 867, 874 (Tex. Crim. App. 2022) (citing ANTONIN SCALIA & BRYAN

A. GARNER, READING LAW 116 (2012)). By its plain text, the felony murder

statute requires (1) a person commit or attempt to commit a felony, (2) the
FRASER CONCURRENCE — 3

person commit or attempt to commit an act clearly dangerous to human life

that causes the death of an individual, and (3) that act clearly dangerous to

human life to be committed “in the course of and in furtherance of” the

underlying felony, or “in immediate flight from” the underlying felony.” See

TEX. PENAL CODE § 19.02(b)(3). 1 The act clearly dangerous to human life is a

requirement separate from, and in addition to, the conduct necessary to

commit the underlying felony. If the act clearly dangerous to human life is

necessary to commit the underlying felony, then it is necessarily subsumed by

the completed or attempted felony offense and cannot also serve as the

additional bad act.

This textual understanding of the felony murder statute is supported by

history. At early common law, a person was held liable for murder when he

caused a death, although unintentionally, while committing a felony. See 4 W.

BLACKSTONE, COMMENTARIES 200 (1897). However, because “[i]t would subvert

any effort to grade homicide if every felonious homicide aggravated itself to

murder[,] [s]ome criterion is . . . needed to distinguish predicate felonies from

1 As Judge Slaughter wrote in her dissent in our opinion from Appellant’s first trial,

our current interpretation of the felony murder statute also disregards the phrases
“in furtherance of” and “in immediate flight from.” Fraser v. State, 583 S.W.3d 564,
586 (Tex. Crim. App. 2019) (Slaughter, J., dissenting). As she put it, “how can one
commit an act that is in furtherance of itself?” Id.; see also id. (“Likewise, how can
one commit an act ‘in immediate flight from’ the felony that constitutes the same
act?”).
FRASER CONCURRENCE — 4

the homicides they aggravate.” Guyora Binder, Making the Best of Felony

Murder, 91 B.U. L. REV. 403, 519 (2011). Most States adopted merger

limitations to the harsh common law rule. See, e.g., People v. Hüter, 184 N.Y.

237 (1906); People v. Burton, 491 P.2d 793 (Cal. 1971).

This Court previously adopted a merger limitation, which prohibited

felony murder predicated on an aggravated assault. Garrett v. State, 573

S.W.2d 543, 546 (Tex. Crim. App. [Panel Op.] 1978). We required for there to

“be a showing of felonious criminal conduct other than the assault causing the

homicide.” Id. This limitation accounted for two considerations. First, “[t]he

felony murder rule calls for the transfer of intent from one criminal act to

another.” Id. at 545. The felonious intent from the underlying felony must

transfer “to the act causing the homicide.” Id. at 545–46. Without an act

independent of the underlying felony, there is no act upon which to transfer

intent—there is only one act and one felonious intent. See id. at 546. Second,

when the felony murder doctrine is applied to situations in which the

underlying felony, such as aggravated assault, “and the act resulting in the

homicide [are] one and the same,” there “is an attempt to split into unrelated

parts an indivisible transaction.” Id. To avoid this indivisible transaction issue,

the Legislature expressly restricted felony murder such that manslaughter

cannot serve as the predicate felony. See id. Indeed, “[m]ost voluntary
FRASER CONCURRENCE — 5

manslaughter offenses are initiated as aggravated assaults.” Id. With these

two considerations in mind, this Court in Garrett properly recognized that

felony murder liability is improper when the act clearly dangerous to human

life is also a necessary factual element of the predicate felony offense.

We later retreated from Garrett, disavowing and limiting our holding in

several decisions. See, e.g., Ex parte Easter, 615 S.W.2d 719, 721 (Tex. Crim.

App. 1981) (concluding that Garrett’s merger rule was inapplicable because

“the crime of injury to a child is not a lesser included offense to the crime of

murder”); Murphy v. State, 665 S.W.2d 116 (Tex. Crim. App. 1983)

(“[A]ppellant’s act of arson in setting a habitation on fire and the resulting

homicide of the victim were not one in the same.”); Aguirre v. State, 732 S.W.2d

320, 325 (Tex. Crim. App. 1982) (op. on reh’g) (“[A]ppellant’s act of criminal

mischief and the deceased’s resulting homicide were not one in the same.”).

And in Johnson, this Court limited Garrett’s application to one situation—

when a felony murder conviction is premised upon the underlying felony of

manslaughter or a lesser included offense of manslaughter. 4 S.W.2d at 258.

Johnson’s holding, we said, was “consistent with the plain meaning of the

felony murder provision.” Id. But as discussed above, Johnson’s holding is

inconsistent with the literal text of the felony murder statute because it

overlooks Section 19.02(b)(3)’s use of “and” which requires the act clearly
FRASER CONCURRENCE — 6

dangerous to human life to be distinct from the acts necessary to commit the

predicate felony offense.

Further, Johnson’s holding creates absurd results. For example, may

felony aggravated assault serve as the predicate felony of felony murder? The

Johnson Court—like the Garrett Court—certainly thought not. In fact, we said

in Johnson, “If a felony murder may be predicated on the underlying

aggravated assault, the statutory restriction on the scope of the doctrine that

prohibits basing a felony murder prosecution on voluntary manslaughter could

be regularly circumvented.” Id. at 258 (quoting Garrett, 573 S.W.2d at 546).

And yet two years later, this Court disavowed that principle and allowed the

State to secure a felony murder conviction premised upon a felony aggravated

assault that caused the death of the complainant. Lawson v. State, 64 S.W.3d

396, 397 (Tex. Crim. App. 2001). Lawson reasoned that “[a]n ‘intentional and

knowing’ aggravated assault is not a lesser included offense of manslaughter,

nor is it statutorily includable in manslaughter.” Id. (first citing Johnson, 4

S.W.3d at 258; and then citing Garrett, 573 S.W.2d at 546). Since Lawson, as

long as the State indicts a person for committing a felony assault with a mens

rea greater than recklessness, felony murder is available. Cf. id.

Frankly, we got it right in Garrett, and we have erred to move away from

its holding. As Judge Slaughter put it in our first iteration of Fraser: “our
FRASER CONCURRENCE — 7

current interpretation” of the felony murder statute is plainly “wrong.” Fraser,

583 S.W.3d at 582 (Slaughter, J., dissenting); see also id. at 574 (Walker, J.,

concurring) (“The Court is giving a green light to the State to seek and secure

first degree murder convictions even in cases that should be charged as

manslaughter or even criminally negligent homicide when children, elderly

individuals, or disabled individuals are the victims.”).

But even though the felony murder statute does not apply to situations

in which the underlying felony is an assaultive offense, the State is not entirely

prevented from moving forward with a prosecution. Under Section 19.02(b)(2)

of the Penal Code, a person commits murder if he “intends to cause serious

bodily injury and commits an act clearly dangerous to human life that causes

the death of an individual.” TEX. PENAL CODE § 19.02(b)(2). By its plain text,

Section 19.02(b)(2) does not require a separate act. It requires an intent to

cause serious bodily injury, an act clearly dangerous to human life, and the

death of an individual, which need not be intended. Thus, it may apply to any

act intended to cause serious bodily injury, such as felony aggravated assault

and other assaultive type offenses.

Section 19.02(b)(2), for example, could have applied here. Appellant was

charged with first-degree felony injury to a child, which requires a person to

intentionally or knowingly cause serious bodily injury to a child. See TEX.
FRASER CONCURRENCE — 8

PENAL CODE § 22.04(a)(1), (e). And as the State alleged, Appellant committed

“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.].” The only material difference is that the State

would have been required to prove the mens rea of intentionally. The State

opted not to indict under Section 19.02(b)(2) and opted instead to indict under

Section 19.02(b)(3). Rather than proving that Appellant acted intentionally,

the State used the felony murder statute and felony injury to a child to lower

the minimum requisite mental state. 2

With these thoughts in mind, we should, at the earliest opportunity,

reexamine our felony murder jurisprudence. Our current interpretation of the

felony murder statute appears to lack support from its plain text. Allowing the

same act to serve as the underlying felony and the act clearly dangerous to

human life deviates from Section 19.02(b)(3)’s text.

2 An offense under the injury to a child statute is punishable as a “state jail felony

when the person acts with criminal negligence.” TEX. PENAL CODE § 22.04(g). The
State presumably could have alleged that Appellant acted with criminal negligence
and still secured its felony murder conviction. Cf. Contreras v. State, 312 S.W.3d 566,
583–85 (Tex. Crim. App. 2010) (concluding that there was no jury unanimity issue in
a felony murder conviction when the underlying felony was injury to a child and the
mental states of intentionally, knowingly, recklessly, and with criminal negligence
were alleged in the alternative). This example illustrates the flaw with our current
felony murder jurisprudence: The State may obtain a murder conviction by proving
the lowest culpable mental state (criminal negligence) without ever proving that the
defendant engaged in a separate act clearly dangerous to human life.
FRASER CONCURRENCE — 9

With these thoughts, I join the Court’s sufficiency analysis.

Filed: September 3, 2025
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