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

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. 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." 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. The court of appeals held that the same could be said for certain versions of the child-endangerment offense. 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.

The abstract portion of the jury charge tracked the statutory language of the offense of felony murder. 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. 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 ." In support of that contention, the court of appeals discussed our opinions in Lawson and Johnson. 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). 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. 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, but the court of appeals reviewed the clerk's record in Johnson and found the "intentional" culpable mental state in the jury charge. 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.

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. 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.’ " The court of appeals engaged in a similar analysis with respect to the offense of endangering a child through recklessness or criminal negligence.

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. 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). 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.

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 Hall 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 Salazar 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. 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. 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.

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. The same is true for the capital murder cases in which the defendant requests the lesser-included offense of injury to a child. 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. 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 murder. Further, the hypothetical nature of the manslaughter offense would suggest the appropriateness of applying a strict statutory approach to determining its elements.

Declining to add elements to manslaughter makes sense when one considers that a typical feature of a lesser-included offense is the lack of at least one element of the charged offense. Why would we use the indictment to add extra elements to a lesser-included offense when a lesser-included offense is not expected to have all of the elements in the indictment in the first place? And even viewing manslaughter as a hypothetical offense rather than a lesser-included offense, why would it need to import extra elements from the indictment?

Moreover, the victim's status as a child is a statutory element of the predicate felonies. Requiring the hypothetical manslaughter offense to import this statutory element would be bootstrapping: the element would become part of manslaughter simply because it is part of the predicate felony. If one element of the predicate felony can be added to the hypothetical offense of manslaughter, why not all elements of the predicate felony? The answer is that doing so would nullify the felony-murder statute by making all felonies ineligible for use in the statute. But there is no principled reason to import some elements of a predicate felony but not others. The only principled approach to the felony-murder statute's manslaughter exclusion is to look solely to the statutory elements of manslaughter in determining lesser-included offenses. Consequently, if the victim's status as a child is not an element of, or deducible from, the statutory elements of manslaughter, then the predicate felonies that include the "child" element are not lesser-included offenses of manslaughter under the manslaughter exclusion.

This discussion has no effect on the ability of a defendant to obtain a lesser-included offense under a manslaughter indictment. Under the cognate-pleadings test, if a manslaughter indictment contains extra averments that cause it to encompass an offense that would not otherwise be a lesser-included offense under manslaughter's statutory elements, a defendant could nevertheless obtain a lesser-included instruction on the encompassed offense. What we hold here is that the cognate-pleadings test does not apply to the manslaughter exclusion in the felony-murder statute. The cognate-pleadings test cannot be used to import the "child" element into manslaughter for the purpose of the manslaughter exclusion if the "child" element is not contained in or deducible from the statutory elements of manslaughter.

B. "Child" Element Not Within or Deducible from Statutory Elements of Manslaughter

All versions of the predicate felonies of injury to a child and endangering a child require proof that the victim was a child. The court of appeals indicated that the "child" element of the predicate felonies is deducible from the elements of manslaughter because every "child" is an "individual." In doing so, the court of appeals engaged in a logical fallacy. All children are individuals, but not all individuals are children. Status as a "child" is an extra fact beyond simply being an "individual." The manslaughter statute does not require proof of that extra fact, as it simply requires that a person "recklessly causes the death of an individual." Consequently, compared to the manslaughter offense in the abstract, injury to a child and endangering a child are never lesser-included offenses.

The court of appeals relied on Lawson for the proposition that the culpable mental state was crucial to determining what was a lesser-included offense of manslaughter. And for the predicate felony in Lawson , aggravated assault, that is sometimes true. At least one version of aggravated assault is a lesser-included offense of manslaughter in the abstract—when the defendant acts recklessly and causes serious bodily injury. The culpable mental state matters when the predicate felony is aggravated assault because the higher culpable mental state of intentional or knowing makes aggravated assault not a lesser-included offense of manslaughter. But the predicate offenses at issue in the present case are not aggravated assault, and they contain the "child" element that aggravated assault does not contain. The court of appeals erred in relying upon Lawson to reach a result at odds with Johnson . As a result of its holding, the court of appeals appears to have left one of Appellant's claims unresolved. We reverse the judgment of the court of appeals and remand the case to address this remaining claim.

Newell, J., filed a concurring opinion in which Hervey and Richardson, JJ., joined.

Walker, J., filed a concurring opinion.

Slaughter, J., filed a dissenting opinion.

Newell, J., filed a concurring opinion in which Hervey and Richardson, JJ., joined.

We have previously considered "the merger doctrine" in the context of felony murder cases where there is little dispute that the defendant has committed an act clearly dangerous to human life. For example, we upheld a felony murder conviction based upon the underlying offense of arson where the defendant had set fire to a house causing the death of someone inside it. And, we upheld a felony murder conviction based upon intentional injury to a child where the defendant beat the child with a blunt object. In such circumstances, it is easy to forget that the statute requires proof of both the commission of a felony and an act clearly dangerous to human life even if proof of the former can satisfy the latter. Holding that there is only a very limited "merger doctrine" under the statute doesn't mean that the commission of a felony always constitutes an act clearly dangerous to human life.

Indeed, that is what makes this case challenging. It is not so obvious that the act alleged is one that is clearly dangerous to human life. Sure, most reasonable people would agree that it is risky to give a child Benadryl simply to make the child sleep even though the instructions warn against it. Although such conduct may be dangerous–and in extreme cases like this one cause death–depending on how it is administered it may cause no lasting harm at all. Without knowing how the antihistamine was administered and over what time period, I question the ability to infer that the person who gave the medication to the child committed "an act clearly dangerous to human life"—even if it's undisputed that the person committed the felony offense of injury to a child. Further, whatever else can be said of feeding over-the-counter medication contrary to the provided instructions, it is qualitatively different conduct than setting fire to a house that might have someone inside or beating a child with a blunt object.

However, Appellant does not ask us to consider whether the evidence in this case was sufficient to establish that she had committed an act clearly dangerous to human life. Instead, she asks us to re-examine our prior holding that limits the court-made "merger doctrine" to the text of the statute. And in that regard, I join the Court because it correctly resolves only what is before it. While I agree that the text of the statute allows for a conviction for felony murder when the underlying felony is separate from the act clearly dangerous to human life, the statute does not expressly require a separate act. After all, the statute reads "commit an act" not "commit a separate act."

Further, we held in 1999 that the only statutory restriction on the type of felony that forms the basis of a felony murder conviction is either manslaughter or a lesser-included offense of manslaughter. If our interpretation of the felony murder statute was incorrect in 1999, our Legislature has had multiple opportunities to fix the statute since then. Given our Legislature's inaction, I see little reason to reconsider our interpretation of the statute. This Court is not free to substitute our policy preferences for those of the Legislature. Writing a more expansive version of the merger doctrine into the statute than the statutory text requires is beyond the authority of this Court.

With these thoughts, I join the Court's opinion.

CONCURRING OPINION

Walker, J., filed a concurring opinion.

I agree with the Court's decision to reverse the judgment of the court of appeals, and I respectfully concur in the judgment, but I concur for a completely different reason. My opinion is based on the fact that Appellant committed felonies against multiple children that can be used as underlying felonies to support the felony murder charge in this case.

I — What Constitutes Felony Murder in Texas?

I disagree with the majority's adherence to Johnson v. State , which apparently overruled Garrett v. State . Johnson v. State , 4 S.W.3d 254, 258 (Tex. Crim. App. 1999) (disapproving of and limiting Garrett v. State , 573 S.W.2d 543 (Tex. Crim. App. [Panel Op.] 1978) ). In Garrett , we held that, in a felony murder case, the felony had to be felonious conduct other than the assault causing the homicide. Garrett , 573 S.W.2d at 546. "This limitation on the felony-murder rule" became "known as the merger doctrine." Murphy v. State , 665 S.W.2d 116, 119 (Tex. Crim. App. 1983). In Johnson , however, we limited Garrett to its facts and declared that Garrett did not create a general merger doctrine. Johnson , 4 S.W.3d at 258. I agree with Johnson that Garrett did not create a general merger doctrine, because, in my opinion, the merger doctrine was built into the statute by the Legislature. Garrett , instead of creating a new doctrine, simply recognized what was already encompassed within the statute. I read the statute to require that the act clearly dangerous to human life that causes the death of an individual be a separate and distinct act from the act which constitutes the underlying felony. However, I recognize that the statute can be confusing and that reasonable minds can differ as to its interpretation.

I believe this Court's adherence to Johnson and the majority opinion's analysis in this case opens the door to absurd results that our Legislature never intended. The majority opinion could lead to travesties of justice. Consider this: What if a young mother is bathing her toddler when she hears her four-year old screaming from the other side of the house. The mother leaves the toddler in the tub and runs to the screaming child. After taking care of the screaming child, she goes back to the bathroom to find that her toddler has slipped in the tub, hit her head, and drowned. The mother's act of leaving the toddler alone in the tub could certainly be negligent and lead to a conviction for injury to a child, which is a state jail felony and carries a maximum sentence of two years. See TEX. PENAL CODE Ann. § 22.04(a)(1), (g). The act could also be charged as criminally negligent homicide, also a state jail felony. See TEX. PENAL CODE Ann. § 19.05. Leaving the child alone in the tub could also be considered an act clearly dangerous to human life which caused the child's death. Under the precedent set today, this young mother can now be tried for felony murder and sentenced to life in prison. I cannot imagine how this result could possibly be what our Legislature intended when drafting our felony murder statute. Reading the statute to require that the act clearly dangerous to human life that causes the death of an individual must be a separate and distinct act from the act which constitutes the underlying felony would not lead to the absurd result in this hypothetical, because the act that caused the death—leaving the toddler alone in the tub— was the same act that constituted the underlying felony. This is a fair way to read the statute. When looked at carefully, this interpretation of the statute is also unambiguous.

The felony murder statute reads:

(b) A person commits an offense if he:

(3) 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, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

TEX. PENAL CODE Ann. § 19.02(b)(3). In other words, a person commits an offense if he commits a felony and, in the course of and in furtherance of the commission, he commits an act clearly dangerous to human life that causes the death of an individual. How could one commit a criminal act and, in the course of the commission of the act, commit the same act? In other words, how can one act be done in the course of the commission of the same act? Take murder, for instance: how could one commit a murder, and in the course of committing the murder, he commits the same murder. In my opinion, interpreting the statute in that way is illogical. On the other hand, one could certainly commit a criminal act and, in the course of the commission of the act, commit a separate act. There is nothing about this interpretation of the statute that is illogical. Furthermore, how could one commit a criminal act and, in furtherance of the act, commit the same act? And again, take murder for instance: how can one commit a murder, and in furtherance of the murder, commit the same murder. I do not see how an act can be in furtherance of itself. In my opinion, interpreting the statute that way is also illogical. Again, on the other hand, one can commit a criminal act and, in furtherance of the act, commit a separate act. There is nothing about this interpretation of the statute that is illogical. Therefore, in my opinion, my interpretation of the statute is not only correct but also unambiguous.

In this case, the Court upholds Appellant's conviction because whatever constitutes a felony other than manslaughter or a lesser included offense of manslaughter should be determined only by comparing the statutory elements of manslaughter and the statutory elements of whatever felony is identified in the indictment. This is so even if the facts of the case show that the defendant actually committed manslaughter or a lesser included offense of manslaughter. The Court does so even though we have recently held that the cognate pleading approach is the only approach to be used in deciding whether an offense is a lesser included offense of another. Hall v. State , 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).

Certainly, we can all agree that children can be the victims of manslaughter. But, according to the Court, in any case where the facts show that the defendant has literally committed manslaughter against a child, the State can charge felony murder with an underlying felony of injury to a child, even though the underlying felony is the same act as the act that caused the death. The same would apply when the manslaughter victim is an elderly individual or a disabled individual. 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.

II — The Felony Murder Conviction in This Case is Fine

That being said, I ultimately agree with the Court's decision to reverse the judgment of the court of appeals in this case. Not because I agree with the Court that injury to a child and endangering a child are, on a purely statute-to-statute comparison, definitively and forever-more not lesser included offenses of manslaughter under Johnson , and thus eligible to underlie a felony murder conviction when alleged as the felony. Instead, even under a correct interpretation of the felony murder statute, the actual circumstances of this case and the State's case at trial show that the act clearly dangerous to human life that caused the death of the victim, C.F., was separate and apart from alleged felonies of injury to a child and endangering a child. Appellant committed the underlying felonies of injury to a child or endangering a child against nearly a dozen other children.

III — The Facts

A full recitation of the facts is necessary to show the full scope of the felonies committed by Appellant that can properly underlie her conviction for felony murder, separate and apart from the act that caused the death of C.F.

Appellant ran a licensed child care home, Spoiled Rotten, from her home in Waco for over twenty years. The day care, staffed by herself and one assistant, provided care for twelve children, all typically under two years of age. Appellant maintained a well-defined schedule for the infants in her care, including a nap time of 12:00 to 3:00 p.m.

Before C.F. was born in October of 2012, her parents reserved a slot at Appellant's day care based on several strong recommendations. After spending her first two months at home, C.F. began attending Appellant's day care at the start of the new year. C.F.'s mother was happy with the care C.F. was receiving, and all seemed well. However, during the afternoon nap on March 4, 2013, Appellant found C.F. had stopped breathing, had vomited, and was unconscious. Appellant attempted CPR and told her assistant to call 9-1-1. Firefighters with the Waco Fire Department quickly arrived and took over providing pediatric CPR. Paramedics showed up not long afterwards and transported C.F. and Appellant to a nearby hospital. C.F.'s family came to the hospital as soon as possible. Despite the best efforts of the doctors, C.F. died.

Based on standard procedure following a child death, a police investigation was initiated and C.F.'s body was sent to Dallas for an autopsy, even though her parents thought that she died from sudden infant death syndrome (SIDS). Simultaneously, an administrative investigation with child care licensing began, and Appellant's day care was temporarily closed for a week. A few days later, a child care investigator went to Appellant's day care for a follow-up visit, but Appellant was not home and the investigator had to wait outside the house. Appellant's daughter, coming home from college for spring break, saw the investigator and sent a text message to Appellant informing her about the visit. Appellant instructed her daughter to go inside and move a box of medication from a cabinet in the day care room to her daughter's closet.¹ The investigator paid Appellant another visit at the end of April, during which she observed a number of medication bottles, including melatonin, a sleep aid, on the counter and in the cabinets of Appellant's kitchen.

Meanwhile, the Dallas County Medical Examiner's Office, at the Southwestern Institute of Forensic Sciences, performed the autopsy of C.F.'s body. C.F. appeared to be otherwise healthy and had no signs of natural disease, trauma, or external injuries. Toxicology revealed that C.F. had a high level of a drug, diphenhydramine, in her body at the time that she died.

Diphenhydramine is an antihistamine used in common over-the-counter drugs such as Benadryl, Unisom, and some formulations of Dimetapp. One side-effect of diphenhydramine is sedation and sleepiness, and for that reason it is also used as a sleep aid. It also causes dizziness and a lack of coordination. Additionally, diphenhydramine has an anticholinergic effect and can cause dry mouth. According to the State's medical expert, the dryness in turn causes production of thick mucus in the lungs. If given in excess amounts, diphenhydramine's sedative effect can affect greater parts of the brain, eventually including the part of the brain that controls essential bodily functions like heartbeat and respiration, potentially leading to death. Diphenhydramine is especially harmful to infants because their livers are underdeveloped and incapable of metabolizing the drug, and, therefore, the drug remains in their bodies for much longer periods of time than it does for adults.

According to the medical examiner, the amount of diphenhydramine in C.F.'s postmortem blood was 1.3 milligrams per liter, which was significant enough to cause death. This was so because the level was within the 1.1 to 1.6 milligram per liter range documented in the medical literature to have caused deaths in infants. Thus, the medical examiner determined that the diphenhydramine caused C.F.'s death due to the lack of any other cause. However, the medical examiner could not determine how C.F. ingested the drug or whether it was one large dose or numerous smaller doses over time. Accordingly, the manner of death was undetermined. In the meantime, C.F.'s parents maintained their close relationship with Appellant, and they regularly contacted each other, sharing supportive text messages. Nearly two months passed after C.F.'s death before her parents learned the results of the autopsy. After that point, her parents ceased all contact with Appellant. C.F.'s cousin, T.F., was pulled from Appellant's day care the next day. Other parents, however, kept their children with Appellant, maintained their close relationships with her, and supported her.

The detective investigating C.F.'s death contacted the mother of M.J., one of the other children in Appellant's care. He asked M.J.'s mother if she wanted to submit a sample of M.J.'s hair to test for diphenhydramine. Initially, M.J.'s mother was eager to help, hoping that a negative test result would exonerate Appellant. However, M.J.'s mother did not feel comfortable with the detective and declined to provide a sample to him. Instead, she scheduled an appointment to have M.J.'s hair tested through an independent private laboratory. She then called Appellant to apologize for not going through with the detective's request for testing. M.J.'s mother felt remorse because testing with the detective could have cleared Appellant's name sooner. M.J.'s mother did not get the reaction from Appellant that she expected. Instead of being relieved to hear that there was a way to prove that Appellant did not dose the children, Appellant reacted to the phone call with concern that she would be blamed for more children having diphenhydramine in their bodies. Appellant also sarcastically remarked that "Belize is looking better and better." The conversation unnerved M.J.'s mother, and she chose not to tell Appellant about the private testing. She took M.J. to Austin where a sample of M.J.'s hair was cut from her head and sent to a laboratory in Houston for testing. A week later, the test results revealed that M.J. had a significant amount of diphenhydramine in her hair sample.

Thus began a chain reaction of parents taking their children to submit hair for testing. Eventually, over the next several months, all of the other children who were in Appellant's care at the time C.F. died, except for one, were tested.² Additionally, four other children who attended Spoiled Rotten prior to C.F.'s attendance also had hair samples tested. Like M.J., most of the children had hair samples cut directly from their heads. Others, however, had intervening haircuts. Accordingly, hair which corresponded with the time they were in Appellant's care was lost, and new hair growth since those haircuts post-dated their attendance and would not have revealed information about whether they received the drug at the day care. Their parents were able to work around that problem after they were each able to find and send in hair they had saved from the children's first haircuts which occurred during the relevant time frame.

The testing revealed that all of the children's hair samples contained varying levels of diphenhydramine. On one end of the scale, R.R., who had several samples tested, had two tests come back with no diphenhydramine detected and one just barely over the cutoff (58 pg/mg, with a cutoff of 50 pg/mg).³ On the other end of the scale, D.S.'s level was so high that it was off the chart (over 10,000 pg/mg) and could not be determined.

The revelation that the children were exposed to diphenhydramine correlated with ailments that some of them suffered while in Appellant's care. For example, M.J. had chronic ear infections. She also had an episode where she came home from Appellant's day care feeling unwell, laying still, and not wanting to eat. She then started shaking and was unresponsive. M.J.'s parents took her to a hospital where the violent episode continued, and M.J. started vomiting as well. M.J. got better after a couple of hours, but the doctors could not determine what caused the incident.

F.B. also had several ear infections as well as constant congestion while he was attending Appellant's day care. R.C. had ear infections too. R.R. was difficult and fussy. She had mucus that she could not clear, threw up frequently, and would not eat much. As a result, she was sickly and underweight. R.R.'s doctors were so baffled by her condition that they tested for cystic fibrosis. H.M. was constantly thirsty. K.D. had congestion which was being treated with a nasal aspirator. I.M. had a lot of ear infections, which her parents had trouble getting cleared up. I.M. was also difficult to get to sleep at home, but she always slept well at Appellant's day care. I.M. was very thirsty, such that her thirst was "unquenchable."

D.S. got his first ear infection a month after beginning at Appellant's day care, and his parents had a difficult time controlling his congestion and ear infections during the first year of his life. Tubes were placed, but the ear infections continued with lots of ear drainage and mucus. He was also abnormally thirsty. Toward the end of his time at Appellant's day care, he starting developing issues with tremors. His pediatrician tested for glucose problems, including hypoglycemia and diabetes, but those causes were ruled out. D.S. was referred to a neurologist, and his parents were going to schedule a sedation MRI to get an image of D.S.'s brain. In one particular episode, D.S. could not move his arm, and the doctors could not figure out what was wrong. They considered a spinal tap to check for meningitis, but the blood markers would not corroborate that diagnosis. The issue eventually subsided, and D.S. could move his arm again; however, his pediatrician could not explain what had happened. As for C.F., she had a cough and a little congestion when she visited her doctor a few weeks before her death.

After the other children left Appellant's day care, many of their health problems went away. F.B., for instance, had much less congestion, and illness was no longer a normal state of being for him. R.R. stopped throwing up, started eating, and gained weight rapidly. She also had a change in personality from fussy to outgoing, talkative, and funny. I.M., after leaving Appellant's day care and going to a new school, became a happy and healthy child, and her ear infections went away. D.S., who had been suffering from unexplained tremors and whose parents were going to schedule a sedation MRI, did not need to get that MRI examination. By the time of his next scheduled evaluation, D.S. had aged out of and left Appellant's day care, and he began attending preschool. The tremors subsided, the neurologist cleared D.S. from care, and D.S. no longer had health problems.

Appellant was charged with felony murder for allegedly causing C.F.'s death by giving C.F. diphenhydramine, which was an act clearly dangerous to human life, and Appellant did so while committing felony offenses of injury to a child or endangering a child. On the third and fourth days of trial, over Appellant's objection, each of the parents of the other children testified that they all had their children's hair samples submitted for testing. The State then presented the results of the testing, revealing that the children had all received doses of the drug, and the State's expert witness explained how dangerous such doses could be. The jury found Appellant guilty of felony murder and assessed a sentence of fifty years imprisonment.

IV — Identifying the Underlying Felonies

After reviewing the record, it is obvious to me that the underlying felonies were committed against the larger group of children, all of whom, with the exception of C.F., were not killed as a result of the felonies, and that each underlying felony was a separate criminal offense. Ex parte Hawkins , 6 S.W.3d 554, 560 (Tex. Crim. App. 1999) ("in Texas the allowable unit of prosecution for an assaultive offense is each victim"). The State's theory at trial and the evidence presented to support that theory showed that Appellant committed, or attempted to commit, injury to a child or child endangerment against at least ten of the children in her care, not just C.F. Furthermore, the offenses committed against the group of children involved Appellant giving each child a separate bottle containing diphenhydramine, thus involving separate criminal acts for each child.

The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one which accurately sets out the law, is authorized by the indictment, does not necessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. The indictment alleged:

that MARIAN FRASER, hereinafter called Defendant ... 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,

PARAGRAPH II

And it is further presented in and to said court that the Defendant ... 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: Endangering a Child,

Clerk's R. 6. The indictment, as shown above, did not allege anything particular about the underlying felonies beyond their statutory titles. There were no allegations that the child being injured was C.F. There were no allegations that the child being endangered was C.F.

Because the hypothetically correct jury charge is the one authorized by the indictment, and the indictment, as recited above, merely alleged that either "Injury to a Child" or "Endangering a Child" were committed, the hypothetically correct jury charge thus embraced any and every injury to a child or endangering a child that was fairly raised by the evidence. Compare Taylor v. State , 450 S.W.3d 528, 535 (Tex. Crim. App. 2014) ("When an indictment alleges theft in the most general of statutory terms, as did the indictment in this case, the hypothetically correct jury charge embraces any and every statutorily defined alternative method of committing the offense that was fairly raised by the evidence."); and Geick v. State , 349 S.W.3d 542, 545 (Tex. Crim. App. 2011) ("When a statute lays out several alternative methods of committing the offense, and the indictment alleges only one of those methods, ‘the law as authorized by the indictment’ is limited to the method specified in the indictment."); see also 43A GEORGE E. DIX & JOHN M. SCHMOLESKY, TEXAS PRACTICE SERIES, CRIMINAL PRACTICE AND PROCEDURE § 51:27 (3d ed. 2011) ("If the indictment should have been more specific but the defendant did not challenge the indictment, the hypothetically correct jury charge does not contain those specifics."). Thus, evidence relating to the other children should be considered in determining whether the evidence was sufficient to show that Appellant committed an underlying felony of injury to a child or endangering a child.

The State presented evidence that the other children in Appellant's care at the time of C.F.'s death also received doses of the drug. The parents of each child testified that their children were in the care of Appellant, that they submitted hair samples for testing, and that after they received the hair follicle test results, they stopped supporting and contacting Appellant. The State's medical expert provided the actual results of the testing, which showed that each child had diphenhydramine in their hair samples that correlated with the time that they were at Appellant's day care. The medical expert also explained the harmful effects diphenhydramine could have on infants. Before each child's parent testified about the testing, the jury was repeatedly instructed that the evidence regarding the other children was being presented to show that Appellant had a common scheme, plan, or opportunity to administer drugs to the children, and to show the absence of mistake or accident.

Although the evidence regarding the other children was admitted for limited purposes, those purposes go directly to the issue of Appellant's guilt. According to Professors Dix and Schmolesky, "[a]s a general rule, if evidence has been admitted for limited purposes that do not include proving the defendant's guilt, that evidence cannot be considered in reviewing the sufficiency of the evidence to support a conviction." DIX & SCHMOLESKY , supra , § 51.39. The flip-side of that coin is self-evident: if evidence has been admitted for purposes that do include proving the defendant's guilt, that evidence can be considered in reviewing the sufficiency of the evidence to support a conviction. Whether Appellant had a common scheme, plan, or opportunity to drug the children and whether their being drugged was the result of an accident or a mistake are central to the issues of whether she committed a felony of injury to a child or endangering a child against the other children and also whether she committed an act clearly dangerous to human life against C.F. The court of appeals's failure to consider the evidence in its sufficiency review cannot find justification under the limiting instruction. Just as the jury was authorized to consider the evidence regarding the other children as evidence that Appellant had a common scheme, plan, or opportunity to administer the drugs and to show the absence of mistake or accident, the court of appeals should have considered the evidence for those purposes, which ultimately go towards Appellant's guilt or innocence of felony murder.

Furthermore, during closing argument, the State emphasized what happened with the other children:

I mean, a common scheme. I mean, it's pretty evident the nap nazi up here wanted those kids asleep from noon until 3:00, and she was going to make it happen. She was going to dope those kids up so they got to sleep so she could do whatever she wanted around the house. She made the bottles. You had her testimony from that. She was the one that was in charge for the medicine. If those kids got it, she was in charge of it. She told you it was her business, and her business was putting kids to sleep, and she was good at it, because she used medication, again an act clearly dangerous to human life. You cannot give small children medicine to make them sleep to make your life easier, and then if it wasn't bad, if it wasn't an act clearly dangerous to human life, why didn't she tell the parents? Because she knew, she knew it was wrong. And then the other reason you can consider it — you can go back there and talk about all these kids, all of them. I mean, their tests are in evidence. Absence of mistake, that's why they matter. This was no mistake. This is what she did. This was her MO.

Rep. R. vol. 8, 25.

And then just to make her day easier, she gave them — she doped them up. She doped them up so she could have a couple of hours of quiet. You've heard about some of these kids. I mean, [D.S.], the shakes, he was having seizures, the constant congestion. Did you-all hear from one parent that didn't talk about — maybe there were two or three that didn't talk about some type of ear infections or constant mucus. Remember what Dr. Lykissa said ... it's a production — it's a side effect of taking too much Diphenhydramine.

Id. at 26.

About the only thing that that defense expert said yesterday that made any sense was talking about clusters, because when you have clusters, what you look for is one common denominator, and the common denominator is sitting right over there, and she sat there and lied to you yesterday. She lied to you, because she did it, because she is the one thing that is common between every one of those kids and [C.F.]. She is the one thing that binds all this together. She is the one person that had opportunity to dose every one of those kids, and she admitted that to you on the stand.

Id. at 27. During rebuttal argument, the State added:

Marian had other plans. She wanted — it was her time. So as she checked — as she cashed all those checks, taking in her $93,000 while she's dosing kids every single day with Benadryl or Melatonin, whatever she was putting in. We know for sure we have Diphenhydramine, because we have tests for that, because that's what we tested for. So every single day, she would give those kids their bottles ... Every single day she made those bottles and she had put some type of sleep aid, whether it was Diphenhydramine, Melatonin, whatever she could find, she would put in those bottles so those kids would sleep. And when they didn't sleep, she complained.

...

And what about these children? Cystic fibrosis testing? [R.R.'s mother] told you about [R.R.]'s testing. What about [M.J.'s family]? [M.J.] had a violent episode of vomiting, and they had to take her to the hospital, and no one could figure out what it was. And worse yet, what about little [D.S.]? This little boy was having seizures, he was having withdrawals, he was having tremors. One day he couldn't move his arm, and his levels were so high the instrument couldn't even register any more. And

you know how you know how narcissistic she is and how much Marian Fraser does not care about these children, is that she knew every single time these kids had something wrong with them, and she continuously did it over and over and over again[,]

...

every single day, just like Dr. Lykissa told you. This is not a one-time dosage. The poison is in the dosage amount, not the medicine. These are very, very high amounts. Take the tests back there with you. They are high. This is not a parent giving their children half a teaspoon of Dimetapp. Every single day, knowing these kids are sick, she keeps doing it. And you want to know why [C.F.] had a cough, because she had Diphenhydramine in her body. That's why she had a cough. It causes congestion, and she was coughing. So not only did she keep dosing those kids when she knows how sick they are, she's dosing those kids after [C.F.] died. It could have been any one of these children.

Id. at 54–56. Thus, the State's case was that Appellant gave diphenhydramine not just to C.F., but to all of the other children as well. From the circumstantial evidence that Appellant gave the children diphenhydramine, the medical testimony describing what diphenhydramine could do, and the testimony from the children's parents about the various maladies suffered by their children while in the care of Appellant which cleared up after leaving Appellant's care, the jury could infer that Appellant caused the children to ingest diphenhydramine and by doing so either caused those children bodily injury or serious bodily injury, or placed the children in imminent danger of death, bodily injury, or physical or mental impairment.

As for the mental state element of the underlying offenses, Appellant testified that she was aware that diphenhydramine was harmful to young children. The jury could infer that Appellant disregarded the risk from the drug because there was circumstantial evidence indicating that Appellant gave the drug to the children. Thus, the jury could infer that Appellant was reckless, and the jury could rationally conclude that Appellant recklessly caused serious bodily injury to the other children or recklessly endangered the other children. The underlying felonies were established, and those felonies were committed against children other than C.F.

Thus, the indictment alleged and the proof showed that Appellant was engaged in felonious criminal conduct, namely, injury to a child or endangering a child, at the time C.F. was killed. The State's case was that Appellant regularly and systematically administered diphenhydramine to a dozen children, not just C.F., in order to sedate them for their designated afternoon nap time. There was a showing of felonious criminal conduct other than the assault which caused the homicide. The victims of Appellant's underlying felonies were children other than C.F. Appellant's acts of injury to a child or endangering a child and the act that caused C.F.'s death were not one and the same.

The evidence presented by the State to the jury showed more than one felonious or dangerous act. The evidence showed that Appellant committed multiple felonies against the larger group of children, not only to C.F. The felonies and the dangerous act are not one and the same.

V — Conclusion

In conclusion, I believe that our felony murder statute, § 19.02(b)(3), requires proof of an underlying felony, that is not manslaughter, that is also separate and distinct from the act clearly dangerous to human life that caused the death. Our felony murder jurisprudence should be revisited. In this case, however, there is evidence from which the jury could find that Appellant committed multiple underlying felonies, that are not manslaughter, that are also separate and distinct from the act clearly dangerous to human life which caused the death of C.F.

With these thoughts, I concur in the judgment of the Court.

DISSENTING OPINION

SLAUGHTER, J., filed a dissenting opinion.

We are the only high court in America that interprets its felony-murder statute in a way that permits unlimited strict first-degree criminal liability for any accidental death arising from the commission or attempted commission of any felony (except manslaughter or lesser-included offenses of manslaughter).¹ I believe our current interpretation is wrong. It runs contrary to both the plain language of the felony-murder statute and the Legislature's criminal-justice grading scheme.

Introduction

Our felony-murder statute, Texas Penal Code Section 19.02(b)(3), provides that a person commits an offense 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." As discussed in more detail below, the plain language of our felony-murder statute intentionally contains restrictions on its application. It requires both a felony (or attempted felony) and an aggravating factor of a separate act clearly dangerous to human life that is distinct from the felony's elements. That clearly-dangerous separate act must also be committed in the course of and in furtherance of the felony's commission. And the separate act (not the felony) must be the act that causes the death of another. This interpretation not only gives effect to all the words and phrases the Legislature included in the statute, but it also gives effect to the Legislature's criminal-justice grading scheme which requires proof of additional aggravating factors before a felony level and/or punishment range is increased.

Such statutory analysis should be conducted in the Court's majority opinion because in granting the State's petition for discretionary review, the Court designated the following issue: "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?" The answer to that question should be "no." But the Court today does not answer this question. Instead, as indicated by the majority opinion, the Court on its own seems to have changed the question to: "Is the offense of injury to a child or child endangerment a lesser-included offense of manslaughter so as to exempt these offenses from serving as predicate felonies of felony murder?" The Court's opinion, without statutory analysis of Section 19.02(b)(3), finds that they are not lesser-included offenses and summarily concludes the felony-murder statute was properly applied.

I believe the Court's opinion and approach are wrong for three main reasons. First, the Court does not answer the designated issue. It addresses only the first half of the issue as to whether the underlying felonies in this case were lesser-included offenses of manslaughter. It does not address whether a felony-murder conviction can stand "when the act underlying the felony and the act clearly dangerous to human life are one and the same." In explaining why it declines to address this issue, the majority opinion simply notes, in a footnote, that our existing precedent forecloses any argument that the felony-murder statute requires proof of a dangerous act that is distinct from the underlying felony. See maj. op. at 570 n.39. In my view, however, the precedent referred to in the majority opinion is flawed and should be abandoned. This case presents an appropriate vehicle for revisiting such precedent, but the majority opinion declines to do so.

Second, in reaching an answer on the first half of the designated issue regarding whether the underlying felonies were lesser-included offenses of manslaughter, the Court relies on a judicially created construct rather than the plain language of the statute to reach its answer. The statute solely exempts manslaughter; it does not exempt lesser-included offenses of manslaughter. Rather than relying on the statute, the Court relies on its prior caselaw where it decided to add to the statute an exemption for these lesser-included offenses. See, e.g., Garrett v. State, 573 S.W.2d 543 (Tex. Crim. App. 1978) ; Johnson v. State , 4 S.W.3d 254 (Tex. Crim. App. 1999).

Third, the Court's prior cases interpreting and applying our felony-murder statute (unaddressed by the Court's opinion in this case despite being part of the designated question) do not give effect to all of the words and phrases selected by our Legislature. By failing to give effect to the Legislature's intent, the Court's interpretation allows for any accidental or unintentional death resulting from the commission or attempted commission of a felony (regardless of the actor's mens rea ) to be prosecuted as first-degree felony murder even if the felony and the act causing death are entirely one and the same. The Court's interpretation requires simply a felony or attempted felony and a resulting death. It does not require any additional aggravating factor despite the statute calling for "an act clearly dangerous to human life that causes the death," which must be committed "in the course of and in furtherance of" the felony or "in immediate flight from" the felony. Such interpretation, in turn, advances an application of our felony-murder statute that runs contrary to our criminal-justice grading scheme which requires proof of an additional aggravating factor before a felony level and/or punishment level can be elevated. Instead, the Court's current application allows virtually any felony (state-jail felonies included) resulting in an accidental or unintended death to be elevated to first-degree felony murder with a punishment range of up to life in prison without the involvement of any aggravating factor and with no regard for the actor's mental culpability. Relying on the plain language of the statute and our overall criminal-justice grading scheme, I believe the Legislature intends for the "clearly dangerous act" to be separate and distinct from the felony before the imposition of first-degree-felony liability is justified. Otherwise, as the Court observed in Garrett more than forty years ago, the felony-murder statute may have the practical effect of undermining our normal murder statute by permitting first-degree felony liability for all assaultive conduct leading to death, in the absence of any proof of an intentionally or knowingly caused death. See Garrett , 573 S.W.2d at 545.

This third issue has the biggest and most widespread impact on our criminal-justice jurisprudence. Therefore, the remainder of this opinion will focus on what I believe is the Legislature's intended interpretation of our felony-murder statute. This opinion, after briefly reviewing the relevant background of this case, will: (1) analyze the plain language of the statute; (2) discuss the history of felony murder in America; (3) discuss the history of felony murder in Texas; (4) examine the legislative history of our current felony-murder statute; (5) examine how the courts of other states interpret their felony-murder statutes; and (6) illustrate that this Court's felony-murder opinions over the past forty years run contrary to the plain-language interpretation I urge this Court to adopt.

Background Facts and Procedural Posture

For more than twenty years, Appellant operated a home daycare for babies under two years old. Tragically, a four-month-old baby died in her care. The autopsy revealed that the baby had a toxic level of diphenhydramine (an antihistamine found in medications like Benadryl ) in her system. Through an investigation, it was discovered that Appellant had been dosing all the babies in her care with diphenhydramine so they would sleep during naptime. According to expert testimony, babies under the age of two cannot process diphenhydramine because their livers are not fully developed. As a result, repeated small dosages of diphenhydramine will accumulate in a baby's body, which can result in "unknown consequences" including, as in this case, death.

Appellant was convicted by a jury of felony murder and sentenced to fifty years in prison. The indictment alleged that Appellant "committ[ed] or attempt[ed] 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 Defendant was then and there in the course of or attempted commission of a felony, to-wit:" injury to a child or child endangerment.² The jury instructions tracked the indictment and permitted conviction on a finding that Appellant had committed either of the alleged predicate felony offenses intentionally, knowingly, recklessly, or with criminal negligence.

The court of appeals reversed Appellant's conviction. It reasoned that the conviction was potentially based upon a reckless or criminally-negligent act that caused the complainant's death, which would run afoul of the statutory provision exempting manslaughter (a recklessly-caused death) as a predicate for felony murder.³ Fraser v. State , 523 S.W.3d 320, 334 (Tex. App.—Amarillo 2017).

This Court granted the State's petition for discretionary review and refused Appellant's cross-petition. Thus, the designated issue before the Court was: "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?"

As discussed above, the Court chooses to address a much narrower issue despite the broad language of the issue granted for review. The Court's opinion focuses solely on whether the predicate felonies of injury to a child and child endangerment are lesser-included offenses of manslaughter. Answering that question in the negative, the Court reverses the court of appeals and upholds Appellant's felony-murder conviction.

DISCUSSION

The second half of the designated issue in this case calls for this Court to determine whether a felony-murder conviction would stand when the underlying felony and the act clearly dangerous to human life are one and the same. The Court does not directly answer that question in this case. It has answered that question "yes" in previous cases. I believe those other cases are wrong. In addressing my position, I start with a plain-language statutory analysis as it applies in this case.

I. Under the plain language of the felony-murder statute, a single act cannot serve as both the underlying felony and the "act clearly dangerous to human life" committed "in the course of and in furtherance of" the underlying felony—the felony and the clearly-dangerous act must be separate.

A person commits the offense of 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). The Legislature's use of the word "and" to separate the felony from the act clearly dangerous to human life reflects its intent to require distinct proof as to each element; the felony and the dangerous act may not be one and the same. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS § 12, 116 (2002) ("Under the conjunctive/disjunctive canon, and combines items while or creates alternatives.... With a conjunctive list, all ... things are required—while with the disjunctive list, at least one of the [things] is required, but any one ... satisfies the requirement.") (emphasis included in original); see also Hall v. Hall , 241 W.Va. 12, 818 S.E.2d 838, 846-47 (2018) ("[T]he use of ‘and’... clearly makes both conditions necessary, not merely either of the two.... ‘And’ is a conjunction connecting words or phrases, expressing the idea that the latter is to be added to or taken along with the first.") (internal citations omitted). Thus, the plain language of the statute requires both: (1) an underlying felony (or attempted felony) other than manslaughter; and (2) a separate act clearly dangerous to human life which is committed (or attempted) in the course of and in furtherance of the commission of (or in immediate flight from) that felony (or attempted felony) which causes the death of another. Id.

This understanding of the statutory language is further supported by the requirement that the dangerous act must be committed "in the course of and in furtherance of " or "in immediate flight from" the commission of the felony. TEX. PENAL CODE § 19.02(b)(3) (emphasis added). The word "furtherance" means "the act or process of facilitating the progress of something or of making it more likely to occur."⁴ Given this meaning, how can one commit an act that is in furtherance of itself? "In furtherance of" necessitates that the act be distinct from the underlying felony. Likewise, how can one commit an act "in immediate flight from" the felony that constitutes the same act? If one is in immediate flight from the felony, the felony is complete and the act occurs after the completion of the felony. As such, the felony and the dangerous act must be separate acts; the dangerous act cannot be completely subsumed within the felony's elements.

In Fraser's case, the State pled that Fraser committed the underlying felony (injury to a child or, alternatively, child endangerment) through a single act—giving or causing the baby to ingest diphenhydramine. By this pleading alone, the State could not meet the burden of proving a felony and a separate "clearly dangerous act" committed "in furtherance" of that felony. Because how can drugging a baby be "in furtherance of" drugging a baby? It is not "in furtherance of" the felony—it is the felony.

As shown below in Section II.E. of this opinion, the Court's precedent interpreting the felony-murder statute has largely ignored both the Legislature's use of "and" as well as its use of the "in furtherance of" or "in immediate flight from" language. In doing so, this Court has shirked its obligation to give effect to each word and phrase in a statute whenever possible. Lang v. State , 561 S.W.3d 174, 180 (Tex. Crim. App. 2018) ("In interpreting the literal text of a statute, we must ‘presume that every word ... has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.’ ") (quoting State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997) ). We need to adopt an approach that gives effect to the plain language enacted by the Legislature and prohibit the State from using the very same proof to establish both the underlying felony and the act clearly dangerous to human life. With this opinion, I urge this change.

A Note About the Statute's Manslaughter Exception

Some may question my interpretation based on the statute's inclusion of the manslaughter exception—i.e., why would the Legislature exempt manslaughter if it already required the felony to be separate from the act causing the death? There are well-recognized historical justifications for the inclusion of the manslaughter exception, and these justifications do not undermine my interpretation of the statutory language.

The manslaughter exception was included in the felony-murder statute as a carry-over from the historical felony-murder doctrine and to codify the felony-murder principles recognized by early scholars and jurists.⁵ Specifically, the manslaughter exemption codifies the principle that allowing manslaughter to serve as the predicate felony would permit "all manslaughters [to] automatically ride up an escalator to become felony-murders," thereby eviscerating the homicidal grading schemes. W. LAFAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW , 558-59 (1972).⁶

As discussed in more detail below, the modern Texas Penal Code that went into effect in 1974 constituted the first major reform of the Penal Code since 1857. The drafting committee responsible for revamping the former Code stated that their objective was to "[c]onsolidate, simplify, and clarify the substantive law of crimes," "[r]ationally grade offenses," and "[c]odify the general principles of penal law." State Bar Committee on Revision of the Penal Code, TEX. PENAL CODE, A PROPOSED REVISION (Final Draft, 1970) IV.

In its commentary of the felony-murder statute, the drafting committee recognized that the newly-worded statute was a "restatement of the [felony-murder] doctrine" that "will probably effect little change in practice." Id. at 148. As detailed below, the common practice prior to the 1974 Texas Penal Code was to impose felony-murder liability in cases involving an inherently dangerous felony, such as robbery, accompanied by a separate dangerous act causing death. In codifying the felony-murder doctrine, the Legislature intended to preserve this practice rather than do away with it, and the manslaughter exemption language simply worked to prevent the bootstrapping of any accidental killing during an unlawful act into felony murder. It was a "belt and suspenders" inclusion.

Moreover, the interpretation I advance strictly construes the plain language of the statute even with the manslaughter exception. The Court's interpretation does not. In fact, its interpretation even includes what it has admitted is a judicially created construct that is not founded in the statutory language. See Johnson , 4 S.W.3d at 255 ("Despite the plain language, we have interpreted section 19.02(b)(3) as exempting from the felony murder rule not only manslaughter, but also lesser included offenses of manslaughter.").

II. The history of felony murder in America, Texas, and in other states; the legislative history of our felony-murder statute; and the history of this Court's felony-murder opinions provide perspective on and support for my suggested interpretation of Texas Penal Code Section 19.02(b)(3).

While I believe that our felony-murder statute is clear and unambiguous, other judges on the Court may have a different interpretation. Thus, I address extra-textual sources. Through the extra-textual sources and an examination of the Court's inconsistent and ever-changing opinions, I hope to demonstrate that the Court should rethink its approach to felony-murder cases. A. History of the felony-murder doctrine in the United States.

Many scholars and jurists have suggested that America inherited from England a "strict liability" form of felony murder (one that imposed first-degree murder liability for any death resulting from felonious conduct, even purely accidental deaths). But the historical analysis does not support that contention.

Research indicates that a strict-liability felony-murder rule was largely theoretical in English law and was never actually applied. Instead, the felony-murder doctrine was primarily developed in America through legislative enactments and judicial interpretations. See Guyora Binder, The Origins of American Felony Murder Rules , 57 STAN. L. REV. 59, 60-66 (2004) ("The first felony murder rules were enacted not in medieval England, but in nineteenth-century America.").⁷ American courts began applying felony-murder statutes in the 1840s to impose murder liability for unintended killings in the course of felonies. Id. at 65. These early rules were "almost always quite limited in scope." Id.

By the mid-19th century, various states had enacted numerous laws criminalizing felonies, with penalties ranging from short prison terms to death. With such a developed body of law, "a rule holding all felons strictly liable as murderers for all deaths in the course of all felonies would have been inconsistent with the structure of American criminal codes." Id. As such, felony murder was typically limited to underlying felonies that were inherently dangerous to life. Id. They also "usually required that felons kill their victims by intentionally battering them or by engaging in some destructive act manifestly dangerous to life, such as deliberately wrecking a train." Id. at 65-66. Most reported cases involved intentional inflictions of injury in the course of a felony (e.g., a shooting during a robbery, a stabbing during a burglary, a strangulation during a rape). See id. at 185-86. Often, such killings would have been classified as murder regardless, but were aggravated to first-degree felony murder because the death occurred in furtherance of a "particularly dangerous felony." Id. at 66. Only a few cases involved an unintentional infliction of injury. But in those cases the acts were so dangerous that the defendants "at least should have been aware that they were subjecting others to a substantial risk of death, in violation of their rights, for the defendants' own selfish ends." Id. at 195. Early felony-murder rules in this country "certainly did not punish felons for accidental death" in the course of any felony. Id. at 68.

By the end of the 19^th century, all but eight American jurisdictions had legislation on the subject of homicide in the course of crime. Id. at 123. Some of these jurisdictions permitted felony-murder liability in the absence of a standalone felony-murder statute through judicial interpretation of their general murder statutes. Id. at 141, 160. Nineteen states, however, did enact specific felony-murder statutes.

The earliest felony-murder statutes in America illustrated three different approaches to defining the offense: (1) predicating liability on express or implied malice as shown through the commission of a violent or dangerous act causing death, as well as the commission of a felony; (2) predicating liability on one of several enumerated felonies, all inherently dangerous, such as robbery, arson, burglary, or rape; or (3) predicating liability on any felony. Id. at 121, 175.

The first approach, requiring a showing of malice, was based on the principle that a person who engages in either an intentional act of violence or an inherently dangerous act likely to cause death during the commission of a felony demonstrates the requisite culpability to be held liable for murder. Illinois, California, and Texas, among other states, followed some form of this model. For example, in Illinois felony-murder liability required proof of an inherently violent or dangerous felony, as well as an act of violence committed during the course of that felony exhibiting a reckless disregard of a danger of death. Id. at 162, 185; see ILL. REV. CODE, CRIM. CODE , §§ 22, 24, 28 (1827) (criminalizing murder based on malice implied by circumstances showing "an abandoned and malignant heart.").

The second approach, based on enumerated felonies, stemmed from the principle that if a person was engaged in an enumerated felony inherently dangerous to human life and his conduct resulted in a death, no further showing of culpability was required to elevate the offense to murder. The culpability was supplied by the intent to commit the dangerous felony that created an unjustifiable risk of death. Binder, Origins of Felony Murder, supra note 7, at 183. States utilizing this approach included Mississippi (after 1857 enumerated felonies included rape, burglary, arson, and robbery), New Jersey (enumerated felonies included sodomy, rape, burglary, robbery, and arson, or "any other unlawful act ... of which the probable consequence shall be bloodshed"), and Alabama (same as Mississippi). Id. at 182. Notably, by limiting the underlying felonies to only these enumerated violent offenses, this approach also prevented the problem of merger, discussed infra , and necessarily "impose[d] a requirement of independent felonious purpose, as these [offenses] all involve aims distinct from simply injuring or endangering the victim." Id. at 191.

Finally, the third approach permitted felony-murder liability for an unintentional killing committed during the course of any felony. Jurisdictions following this approach included New York, Mississippi (pre-1857), Missouri, and Oregon. Id. at 171. Despite the seemingly broad nature of such statutes, courts engrafted limitations on the rule. One such limitation was the "merger limitation," which required that the underlying felony have some purpose independent of the victim's death or serious injury. Id. at 173. Other limitations included requiring proof of an intentional battery, or that predicate felonies be dangerous to human life. Id. at 189. Some states imposed only third-degree-felony punishment under this broader definition of felony murder, and thus did not impose first-degree felony-murder liability for deaths caused during the course of any felony.

B. Texas's early approach to felony murder.

Texas "was the felony murder center of America during the 19th century, with about one-fourth of all the reported felony murder convictions in the country." Binder, Origins of Felony Murder , at 167. Although Texas's statute (under the 1857 Texas Penal Code) was the most frequently applied, it was also "the most narrowly applied" because it required a showing of malice, either express or implied. Id. at 185. The 1857 Code also included a grading scheme, which elevated a killing to first-degree murder when committed with "express malice" or when committed in the perpetration or attempt of enumerated felonies. "[M]alice was an independent constraint on felony murder liability," which required both "a dangerous felony and an act of violence or extreme recklessness." Binder, Origins of Felony Murder, supra note 7, at 185.

Express malice was defined as the deliberate intent to seriously harm or kill a particular person, whereas implied malice involved the transferring of malicious intent to an unintended victim or injury. McCoy v. State , 25 Tex. 33 (1860). Proof of malice was a requirement for all murder convictions. Id. at 39-41. In McCoy , the Texas Supreme Court made clear that liability for felony murder could not arise from any and all accidental killings in the course of a felony. Instead, such liability was generally predicated on the intentional infliction of a serious injury on some intended victim under circumstances where the harm was not the primary objective of the criminal enterprise. Id. at 39-41 ; see also Binder, Origins of Felony Murder, supra note 7, at 168. Thus, liability for felony murder through an "implied malice" theory would lie only for situations involving violent conduct or acts presenting a great and foreseeable risk of injury during the course of some distinct felony. Binder, Origins of Felony Murder , supra note 7, at 169.

Cases following McCoy continued to stress the importance of proof of malice. See, e.g., Hedrick v. State, 40 Tex.Crim. 532, 51 S.W. 252 (1899) (holding that only killings with malice done in perpetration of a felony would warrant first-degree felony murder liability); Pharr v. State, 7 Tex. Ct. App. 472 (Tex. Ct. App. 1879) (overturning a felony-murder conviction because the jury was not charged on malice, "the indispensable requisite in all murder"). These cases reflect that, under early Texas law, felony murder had restrictions and always required proof of malice. Given these limitations, during this time period there were "no felony murder convictions predicated on nondangerous felonies," and "almost all of the cases involved deliberate infliction of violence" during the course of a felony. Binder, supra note 7, at 170.

The foregoing analysis of the history of felony murder in America and Texas demonstrates that early felony-murder rules throughout the country were limited in scope. They largely targeted intentional acts of violence or acts that were so obviously dangerous in nature that they presented a high probability of death. Given the narrow scope of early felony-murder rules, modern felony-murder statutes "should not be seen as incorporating by reference a common law felony murder rule that never existed," and "should not be presumed to impose strict liability for all deaths caused in the course of all felonies." Binder, Origins of Felony Murder, supra note 7, at 69.

It is against this historical backdrop that I next consider the legislative history for the modern version of the Texas felony-murder statute, which sets forth the statutory language relevant to this case. C. Texas legislative history of the current felony-murder statute.

The legislative history of Penal Code Section 19.02(b)(3) provides insight into the intent and purpose underlying the statute. The statute was not designed to encompass homicides where the act clearly dangerous to human life resulting in death is wholly subsumed by the underlying felony. Neither was it designed for a strict-liability application of murder. The statute's preliminary drafts and commentaries show that the primary author of the statute built in limitations to avoid an overly-broad application of felony murder.

Our current Texas Penal Code was drafted and compiled in the late 1960s and early 1970s by the Governor's State Bar Committee on Revision of the Penal Code ("the Committee"). Headed by Dean Page Keeton, the Committee was comprised of judges, lawyers, professors, and various legal or law enforcement groups from across the state. Formally proposed by the Committee in 1970, enacted by the Texas Legislature in 1973, and effective in 1974, the new Texas Penal Code constituted the first major reform of Texas criminal laws since they were codified in the 1857 Penal Code.

Chapter 19, the Texas Penal Code's homicide chapter, was drafted by Committee member Frank Maloney, who later served as a judge on this Court from 1991-1996. In a preliminary draft of Chapter 19, Maloney proposed a felony-murder statute substantially similar to the current version:

(1) [A] person is guilty of murder if by his conduct he ... (c) commits or attempts to commit a forcible felony and in the course of and in furtherance of the felony or in immediate flight therefrom he commits or threatens to commit an act inherently dangerous to human life which causes the death of another.

In the draft's commentary, Maloney noted that Subdivision (c) "includes those cases where the actor commits a type of felony that involves substantial risk to human life" and in addition to the felony, "it must further be shown that the actor committed or threatened an act that was inherently dangerous to human life. "

Maloney's handwritten notes, shown below, were produced during the drafting process and include in the margins next to the proposed felony-murder statute the following annotation: "fel & act dang to human life." The "and" sign between "fel. & act ... " indicates that Maloney intended that the two events—the underlying felony and the act clearly dangerous to human life—be distinct. Maloney's notes also identified the Texas felony-murder rule as "Restricted Felony Murder," indicating that a strict-liability application was never intended; the statute contains limitations. Both Maloney's commentary and handwritten notes are consistent with the plain language of Section 19.02(b)(3), which mandates that in addition to an underlying felony, there must be a distinct act clearly dangerous to human life committed in the course of and in furtherance of the felony that causes death.

Maloney's commentaries also demonstrate that the felony-murder statute was designed to punish only those who, at a minimum, engaged in inherently dangerous conduct that is highly likely to cause, and in fact does cause, death. In the preliminary draft commentary, Maloney explained that "[t]he proposed Texas draft is designed to accomplish the same ends as the [Model Penal Code]" felony-murder statute, and that:

The M.P.C. murder provision is based on the premise that no one should be guilty of murder unless either death was intended or the actor's conduct was of such a nature as to create a high degree of probability of death and the homicide was committed under circumstances indicating extreme indifference to the value of human life. The M.P.C. language is an attempt to differentiate between two types of recklessness: (1) recklessness that is something close to knowledge that death will result, and (2) recklessness that involves a substantial homicidal risk.

The former type of recklessness warranted a murder charge, Maloney explained, while the latter type reached only manslaughter. Under this understanding, the felony-murder statute was designed to punish an actor who is aware that death is a highly probable result of her conduct.

The preliminary draft of Chapter 19, including the commentaries, was presented by Maloney at a Committee meeting in November 1967. During the meeting, the Committee amended the statute to read "an act clearly dangerous to human life" rather than "inherently dangerous." In discussing the change, the Committee considered alternatives such as "his conduct is dangerous to human life." This was rejected based on the concern that it "would lead to second guessing because the conduct might not have been foreseeably dangerous to human life." In searching for a "test for telling whether or not the killer knew ahead of time that his conduct would cause a death or would be likely to cause death," the Committee settled on "an act clearly dangerous to human life."

Commentary from the 1970 Final Draft of the Texas Penal Code—which was adopted by the Legislature with minor, non-substantive changes to the felony-murder statute —further clarifies the conduct that the drafters intended the felony-murder statute to reach and punish:

Although it may contract the scope of the [former Texas] felony murder doctrine, the chief aim of Section 19.02(a)(3) is clarification. Under it the mere attempt or commission of a felony no longer suffices to imply intent or knowledge: the actor must kill while attempting or committing an act clearly dangerous to human life in the course or furtherance of the felony or in immediate flight therefrom . As most felony murder prosecutions today involve killings committed while the felon is engaged in highly dangerous conduct, however, Section(a)(3)'s restatement of the doctrine will probably have little change in practice.

With this commentary, the drafters highlighted their intent that not all deaths arising from the commission of a felony equate to felony murder. Rather, to rise to the level of felony murder, more was needed: an act clearly dangerous to human life committed in the course of and in furtherance of the felony. While the Final Draft commentary uses "in the course or furtherance of," it is significant that the final proposed and ultimately enacted statute contains the phrase "in the course of and in furtherance of"—a clear indication that the Committee and the Legislature intended that the dangerous act be both in the course of and in furtherance of a separate felony, as opposed to merely one or the other.

In sum, the legislative history and draft commentary reveal that the legislative intent in enacting Texas Penal Code Section 19.02(b)(3) was that a finding of felony murder requires proof that: (1) a felony is committed or attempted; (2) separate and distinct from the felonious conduct, the actor commits an act clearly dangerous to human life; (3) the dangerous act is committed in the course of and in furtherance of the felony, or in immediate flight therefrom; and (4) the dangerous act causes the death of an individual. The changes made to the proposed felony-murder statute, and the discussions surrounding those changes, further emphasize that the intention behind the statute was to create first-degree murder liability for an actor who is engaged in a felony and, while doing so, commits a discrete act that she knows will likely result in death. That the conduct is dangerous is not enough. The danger involved must create a high probability of death, and the likelihood of death resulting must be foreseeable.

D. How the high courts of other states interpret felony-murder statutes similar to ours.

With the exception of Hawaii, Kentucky, and Michigan, every American jurisdiction has a felony-murder statute in effect. The language, interpretation, and application of those statutes also varies from state to state. Most states place restrictions or limitations on the application of felony murder to prevent overly-harsh or unjust outcomes. The most common of these limitations, and one that is employed by forty-one states, is enumerating the predicate felonies within the statute. Other states restrict the application of felony murder through the merger doctrine, also known as the "independent-act doctrine," which prohibits felony-murder convictions where the underlying felony and the act causing death are the same. A number of states apply foreseeability or proximate-cause standards.

Texas is one of seven states with a felony-murder statute that allows for any felony to serve as a predicate to the offense. Yet, the felony-murder statute in each of these seven states still contains legislative restrictions to avoid imposing strict liability for all accidental deaths associated with the commission of a felony.

1. How other states interpret the "in the course of and in furtherance of" language.

While no other state's felony-murder statute contains the exact language of the Texas felony-murder statute, many other states use some of the same restrictive phrases found in Section 19.02(b)(3). This includes several states that have enacted statutes using the "in the course of and in furtherance of" language found in Section 19.02(b)(3). In some of these states, including Arkansas and Delaware, the high court has interpreted the phrase "in furtherance of" to require that the killing facilitate or advance the underlying felony. Before being amended in 2003, Delaware's felony-murder statute required that the death occur "in the course of and in furtherance of" the commission of the felony, while the Texas statute requires that the act clearly dangerous to human life be committed "in the course of and in furtherance of" the felony. Despite these differences in wording, the interpretation of the "in furtherance of" language in both statutes should be the same. Delaware's Supreme Court interprets the phrase "in furtherance of" to mean that the death must "move forward" or "advance" the felony.

In Williams v. State , the Delaware Supreme Court reversed a felony-murder conviction because the resulting death was not "in furtherance of" the commission of the underlying felony of burglary with intent to commit murder. 818 A.2d 906, 907-08 (Del. 2002), superseded by statute, DEL. CODE ANN. TIT. 11, §§ 635, 636 (2003). The court found that Williams' purpose in committing the burglary was to kill his victim, not to "carry out the commission of the burglary." Id. at 913. The court explained, "Had his purpose been to steal jewelry and [the complainant] was killed to facilitate his thievery, a case for felony murder would exist" because "the [statutory] language requires not only that the defendant, or his accomplices, if any, commit the killing but also that the murder helps to move the felony forward ." Id. (emphasis added). Because the sole purpose of the burglary was to murder the victim, the court held that the murder, "although ‘in the course of’ the burglary, was not carried out ‘in furtherance’ of it," and thus felony murder was inapplicable. Id.

The Arkansas felony-murder statute also uses the phrase "in the course of and in furtherance of." Under the Arkansas statute, a person commits felony murder if he commits or attempts to commit an enumerated felony (for capital felony murder) or any felony (for first-degree felony murder) "and ... [i ]n the course of and in furtherance of the felony or in immediate flight from the felony, the person or an accomplice causes the death of a person under circumstances manifesting extreme indifference to the value of human life." ARK. CODE ANN. §§ 5-10-101, 5-10-102 (emphasis added). Similar to the Delaware Court, the Supreme Court of Arkansas interprets "in the course of and in furtherance of" to mean that the killing must facilitate the commission or attempted commission of the underlying felony. See Parker v. State , 292 Ark. 421, 731 S.W.2d 756, 759 (1987) ; Sellers v. State , 295 Ark. 489, 749 S.W.2d 669, 671 (1988).

In Parker , similar to the situation in Williams , supra , the court considered a felony-murder conviction where the underlying felony was burglary with intent to murder. Parker , 731 S.W.2d at 757. The appellant in Parker chased his victims into their home where he shot them to death. Id. at 758. In reversing the felony-murder conviction, the court held:

For the phrase "in the course of and in furtherance of the felony" to have any meaning, the burglary must have an independent objective which the murder facilitates. In this instance, the burglary and murder have the same objective. That objective, the intent to kill, is what makes the underlying act of entry into the home a burglary. The burglary was actually no more than one step toward the commission of the murder and was not to facilitate the murder.

Id. at 759. Thus, like Delaware, Arkansas also has strictly construed this phrase by requiring that, to support a felony-murder conviction, the death must be committed to advance or facilitate the underlying felony.

In People v. Medina , a Colorado appellate court contrasted the use of the phrase "in the course of or in furtherance of" in its felony-murder statute with other states' felonymurder statutes requiring that the death be "in the course of and in furtherance of" the felony. 260 P.3d 42, 46 (Colo. App. 2010). In Medina, the appellant argued that his felony-murder conviction could not be predicated on burglary with intent to commit assault because the assault would not be "in furtherance of" the burglary. Id. at 45. In rejecting his argument, the court stressed that, whereas other states' statutes contained the phrase "in the course of and in furtherance of," the Colorado statute contains "or ," thereby allowing burglary with intent to commit assault to serve as a predicate felony. Id. at 46. The court stated:

[Other states'] statutes required that death occur both in the course of and in furtherance of the burglary. In contrast, our statute is phrased disjunctively to cover deaths occurring "in the course of or in furtherance of" a burglary.

Id. (emphasis included in original).

These cases illustrate that other states' high appellate courts strictly construe the "in the course of and in furtherance" phrase of their felony-murder statutes, thereby giving full effect to the statutory language. These courts find that the phrase "in furtherance of" requires proof of advancement or promotion of a distinct underlying felony. Thus, there must be some independent purpose of the underlying felony that may be advanced or promoted by the act causing death. Our felony-murder statute also contains the phrase "in the course of and in furtherance of," and we should also give full effect to the Legislature's chosen words.

2. States applying the merger doctrine.

Some states limit the application of the felony-murder rule by using the merger doctrine. In these states, "the felony-murder rule cannot be applied if the underlying felony is an offense that is an ‘integral part’ or is ‘included in fact’ in the homicide." People v. Davis , 213 Ill.2d 459, 290 Ill.Dec. 580, 821 N.E.2d 1154, 1167 (2004) (Garman, J., concurring). Under the merger doctrine, the underlying felony must have an independent felonious purpose from the act causing death. This "ensur[es] that persons convicted of felony murder are sufficiently culpable to deserve murder liability." Guyora Binder, Making the Best of Felony Murder , 91 B.U. L. REV. 403, 550 (2011). The merger doctrine prevents prosecutors from bootstrapping every reckless or criminally negligent killing into first-degree murder merely by proving the death was caused by a felonious assault.

In Texas, the plain language of Section 19.02(b)(3) provides the effect of the merger doctrine by requiring that the felonious conduct be separate and distinct from the dangerous act causing death. As discussed in Section II.E., infra , this Court previously used the phrase "merger doctrine" and applied it for several years, but then expressly abandoned it contrary to the statutory language. A review of the merger doctrine underscores the importance of giving effect to our statutory language.

The doctrine emerged and evolved in New York courts during the nineteenth century. Binder, Making the Best of Felony Murder, at 525-27. In 1927, then-Chief Judge Cardozo explained why the merger doctrine required reversal of a felony-murder conviction predicated on a felonious assault:

Homicide is murder in the first degree when perpetrated with a deliberate and premeditated design to kill, or, without such design, while engaged in the commission of a felony. To make the quality of the intent indifferent, it is not enough to show that the homicide was felonious, or that there was a felonious assault which culminated in homicide .... The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e.g., robbery or larceny or burglary or rape .

People v. Moran , 246 N.Y. 100, 158 N.E. 35, 36 (1927) (emphasis added). The appellant in Moran was a passenger in a vehicle stopped by two police officers. Id. at 36. The appellant shot one of the officers, then shot the second officer, killing both. Id. The jury received a felonymurder instruction based on the killing of the second officer. Id. at 37. The New York Court of Appeals noted that the appellant could have been prosecuted for premeditated and deliberate murder, but reasoned that the felony-murder conviction could not stand because the assault on the second officer "was not independent of the homicide. It was the homicide itself." Id. at 103.

Chief Judge Cardozo distinguished the facts of Moran from the court's decision in People v. Wagner, which upheld a felony-murder conviction involving an intentional shooting. Id. (citing People v. Wagner , 245 N.Y. 143, 156 N.E. 644 (1927) ). In Wagner , the appellant was assaulting a woman when her father came to her aid. Wagner, 156 N.E at 645. The appellant shot and killed the father during the attempted rescue. Id. Judge Cardozo explained that the felony-murder conviction was appropriate under those facts because "[the father], a stranger to the fight" between the daughter and appellant, "plunged into it while it was yet in progress, to stay the commission of a felony upon the person of another." Moran, 158 N.E. at 37. Thus, the assault on the woman provided an independent felonious purpose from the killing of the father, and the two distinct events did not merge.

In a more recent decision, the Iowa Supreme Court in State v. Heemstra reversed a felony-murder conviction where the predicate felony and the act causing death were entirely one and the same. 721 N.W.2d 549 (Iowa 2006). In Heemstra , the jury was instructed it could convict the defendant—who shot and killed the victim—of felony murder based on the predicate felony of willful injury. Id. at 553. The court recognized that in some circumstances, willful injury could serve as the predicate to felony murder, but not where the felony and the act causing death were the same. The court explained:

If the defendant assaulted the victim twice, first without killing and second with fatal results, the former could be considered as a predicate felony, but the second could not because it would be merged with the murder. Otherwise, all assaults that immediately precede a killing would bootstrap the killing into first-degree murder [.]

Id. at 557 (internal citation omitted) (emphasis added). The court further concluded that "if the act causing willful injury is the same act that causes the victim's death, the former is merged into the murder and therefore cannot serve as the predicate felony for felony-murder purposes." Id. at 558.

The Iowa Supreme Court provided further clarity of its "independent-act requirement" in State v. Tribble , 790 N.W.2d 121, 123 (Iowa 2010). In Tribble , the victim sustained blunt-force trauma to her head and face before dying from asphyxiation. Id. at 123. On appeal, Tribble argued that he was not guilty of felony murder because the act of asphyxia and the infliction of blunt-force trauma were all part of a single assault. Id. at 124. The appellate court rejected that argument, finding that the initial head injuries were caused by an assaultive act that was separate from the act that caused the victim's death, namely, asphyxiation. Id. "Thus, separate, independent acts were identified by the evidence." Id. at 129. Looking to the purpose of the merger doctrine in reaching its decision, the court explained that "if the assault that serves as an element in the commission of the predicate felony under the felony-murder doctrine could also be the act that kills another person, every such assaultive felony that causes death would be murder." Id. at 128.

The Maryland Court of Appeals—Maryland's high court—recently adopted the merger doctrine. State v. Jones , 155 A.3d 492, 501 (Md. 2017). The court recognized that by previously rejecting the merger doctrine, it had improperly expanded the felony-murder rule. Id. at 507. It determined that the merger doctrine was necessary "to maintain the integrity of the different levels of culpability of murder and manslaughter." Id. at 508. The court further concluded, "Where the only felony committed (apart from the murder itself) was the assault upon the victim that resulted in the death of the victim, the assault merges with the killing and cannot be the predicate for felony murder nor relied upon by the State as an ingredient of a felony murder." Id.

Massachusetts also applies the merger doctrine. The Massachusetts Supreme Judicial Court explained its rationale behind the doctrine in a case upholding a felony-murder conviction where the underlying felony was kidnapping:

The merger doctrine functions as a constraint on the application of the felony-murder rule by limiting the circumstances in which a felony may serve as the predicate for felony-murder. Specifically, the doctrine requires the Commonwealth to prove that the defendant committed or attempted to commit a felony that is independent of the act necessary for the killing. This requirement ensures that not every assault that results in a death may serve as the predicate for felony-murder. Without the merger doctrine, the distinction between murder and other homicides would be rendered meaningless because all homicides could be enhanced to murder on the theory of felony-murder with the assaultive conduct preceding the homicide serving as the predicate felony.

Commonwealth v. Fredette , 480 Mass. 75, 101 N.E.3d 277, 284 (2018) (internal citations omitted).

Of particular relevance to this case, in a decision involving aggravated battery to a child that caused the child's death, the Illinois Supreme Court affirmed the reversal of a felony-murder conviction and concluded that "the predicate felony underlying a charge of felony murder must involve conduct with a felonious purpose other than the killing itself." People v. Pelt, 207 Ill.2d 434279 Ill.Dec. 610, 800 N.E.2d 1193, 1197 (2003) (citing People v. Morgan , 197 Ill.2d 404259 Ill.Dec. 405, 758 N.E.2d 813, 837 (2001) ).

In Pelt, the appellant's infant son died from brain injuries caused by blunt-force trauma. Id., 279 Ill.Dec. 610, 800 N.E.2d at 1194. The appellant told authorities that when the baby would not stop crying, he tried to throw him on the bed, but threw him too far. Id. , 279 Ill.Dec. 610, 800 N.E.2d at 1195. The baby hit the dresser and died. Id. The appellant was convicted by a jury of aggravated battery of a child and felony murder, but was acquitted of the charge of knowing murder. Id. In upholding the lower appellate court's reversal of the felony-murder conviction, the Illinois Supreme Court stated:

Our task here is to discern from defendant's conduct whether defendant's aggravated battery was an act that was inherent in, and arose out of, the killing of the infant.... The act of throwing the infant forms the basis of defendant's aggravated battery conviction, but it is also the same act underlying the killing . Therefore ... it is difficult to conclude that the predicate felony underlying the charge of felony murder involved conduct with a felonious purpose other than the conduct which killed the infant.

Id. , 279 Ill.Dec. 610, 800 N.E.2d at 1197 (emphasis added). The court also reasoned that without such limitations on felony murder, the State could avoid proving an intentional or knowing murder in most instances of homicide. Id. Thus, the Court's holding "ensures that [the] defendant will not be punished as a murderer where the State failed in proving to the jury that a knowing murder occurred." Id.

3. States with enumerated predicate felonies in their felonymurder statutes.

The vast majority of states and the federal government have statutorily limited the application of the felony-murder rule by enumerating the predicate felonies. Many of these states further narrow the application of felony murder by excluding (non-sexual) assaultive felonies from their statutory list of predicate felonies. By keeping assaultive felonies off the list, these states largely avoid the merger or same-act problem. For example, a kidnapping or robbery predicate felony will almost always involve a separate act causing death. Additionally, in almost every state that lists some form of assaultive offense as a predicate felony, such as child abuse or aggravated battery, the prosecution must prove the defendant committed the underlying felony intentionally or knowingly.

This survey of other jurisdictions demonstrates that every other state and the federal government strive to ensure that the felony-murder rule is limited in one way or another. While the Texas Legislature did include limiting language in Section 19.02(b)(3), the lack of strict adherence to that language by this Court allows for the imposition of felony-murder liability for any accidental death caused in the course of any felony or attempted felony. If this Court were to adopt a strict interpretation of our Texas felony-murder statute as it is written, then Texas courts would stand with the high courts of other states to ensure that felony-murder is properly restricted.

E. This Court's history of interpreting Texas Penal Code Section 19.02(b)(3).

In the years following the 1974 Penal Code revision, this Court strictly construed the applicable statute. Shortly thereafter, however, this Court strayed from its strict construction. Since then, this Court's felony-murder opinions have greatly expanded the application of felony murder in a manner that is inconsistent with the statutory language, the legislative intent, and the overall purpose of the felony-murder doctrine.

1. Rodriquez held that the predicate felony for felony murder required a mens rea of intent, knowledge, or recklessness

Rodriquez v. State was the Court's first opinion interpreting the then newly-enacted felony-murder statute. 548 S.W.2d 26 (Tex. Crim. App. 1977). In Rodriquez, the Court considered whether proof of a culpable mental state was required to support a felony-murder conviction. Noting that the felony-murder statute did not contain any culpable mental state, nor did it plainly dispense with such a requirement, the Court held that Section 6.02(b) of the Texas Penal Code "mandates that the culpable mental state shall, as specified in § 6.02(c), be one of intent, knowledge or recklessness." Id. at 28. The Court reasoned that proof of culpability was supplied by the mens rea accompanying the underlying felony. Id. at 28-29. No separate proof of a culpable mental state was required with respect to the "act clearly dangerous to human life." Id. at 29.

2. Garrett 's holding, which later became known as the "merger doctrine," required that the "act clearly dangerous to human life" be separate and distinct from the predicate felony.

In Garrett v. State , this Court considered the very question presented by this case: In a felony-murder prosecution, can a single act committed by the defendant leading to the death of another provide proof of both the underlying felony and the "act clearly dangerous to human life" that is in furtherance of the felony? 573 S.W.2d 543 (Tex. Crim. App. 1978). The Court determined that the answer to this question was ‘no.’ Id. at 546. The Court held that if the conduct comprising the underlying felony is "one and the same" as the act resulting in the homicide, then the elements of felony murder are not satisfied. Id. Despite being based on the statutory language, this holding was referred to as the "merger doctrine" in later cases.

Garrett was charged with felony murder with the predicate felony of aggravated assault by threat after he argued with a store cashier, pulled out a weapon to threaten him, and killed the cashier when the gun accidentally discharged. Id. at 544. On appeal, Garrett asked "whether the felony-murder doctrine, as codified in Sec. 19.02(a)(3), should apply where the precedent felony is an assault and is inherent in the homicide." Id.

The Court started its analysis by noting that the felony-murder statute does not expressly include a mens rea . Instead, "the culpable state of mind for the act of murder is supplied by the mental state accompanying the underlying ... felony giving rise to the act." Id. at 545 (quoting Rodriquez , 548 S.W.2d at 29 ). There is a " ‘transference of the mental element establishing criminal responsibility for the original act to the resulting act’ " causing death. Id. (quoting Rodriquez , 548 S.W.2d at 29 ). Because the mental state must transfer from one act to another, the Court reasoned that, to support felony murder, there must be a dangerous act causing death that was in addition to and separate from the felony. Id. at 546. Otherwise, the State could forgo pursuing intentional murder charges in many cases and instead simply pursue a felony-murder charge, thereby eliminating the State's burden to prove that the defendant intended to cause the death. Id.

The Court further noted that the vast majority of United States jurisdictions hold "that a felonious assault resulting in death cannot be used as the felony which permits application of the felony murder rule to the resulting homicide." Id. at 545. Allowing the dangerous act causing death to be one and the same as the felony "would mean that every homicide, not justifiable or excusable would occur in the commission of a felony with the result that intent to kill and deliberation and premeditation would never be essential." Id. (quoting People v. Moran , 246 N.Y. 100, 158 N.E. 35 (1927) ). Thus, "[t]he felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein." Id. (quoting Moran , 158 N.E. 35 ).

Applying these principles in Garrett's case, the Court held that Garrett's single act (e.g., pulling out the gun, which discharged and struck and killed the victim) could not satisfy the proof necessary to establish both the underlying felony and the act clearly dangerous to human life. Id. at 546. The Court stated, "The aggravated assault and the act resulting in the homicide were one and the same. The application of the felony-murder doctrine to situations such as this is an attempt to split into unrelated parts an indivisible transaction. There must be a showing of felonious criminal conduct other than the assault causing the homicide. " Id. (emphasis added). The Court concluded, "[a]ny other result in this case would allow circumvention of the statutory limits of the felony murder statute." Id.

Despite this strong analysis, the Garrett Court also based its decision to reverse the conviction on the fact that Garrett's commission of aggravated assault would be a lesser-included offense of manslaughter, and, therefore, fell within the statutory exception for voluntary or involuntary manslaughter. Id. By providing these two alternative rationales, which the Court discussed interchangeably throughout the opinion, the Garrett Court muddied the waters of what could have been a clear, statutorily-based opinion. This lack of clarity and confusion is reflected in the Court's subsequent cases attempting to interpret Garrett .

3 . The Court chips away at Garrett with its opinions in Easter, Aguirre , and Murphy .

Ex parte Easter indicated a possible departure from Garrett .

Several years after Garrett , this Court issued a decision denying post-conviction habeas corpus relief in Ex parte Easter , 615 S.W.2d 719 (Tex. Crim. App. 1981). Easter marked the beginning of a period of confusion surrounding the proper interpretation of Garrett, with one case building off of the prior one, which eventually led to Garrett being virtually abandoned.

Easter was convicted of felony murder with the underlying felony of injury to a child. Id. at 720. In his habeas application challenging his conviction, Easter contended: (1) that the acts used to satisfy the underlying felony's elements "were the same acts that the state alleged caused the death of" the child victim such that his conviction was barred under Garrett ; and (2) that the trial court improperly instructed the jury that felony murder could be found with a showing of criminal negligence as the mens rea for injury to a child, which was prohibited under Rodriquez 's holding. Id.

Rather than directly addressing Easter's arguments by conducting an analysis under Garrett and Rodriquez, the Court instead focused on transferred intent. Id. ("We are here concerned with the felony murder rule and the theory of transferred intent."). Applying a faulty interpretation of Garrett 's transferred-intent holding, the Court then summarily held that Easter's reliance on Garrett was misplaced and that Garrett was inapplicable. Id. The Court further found that unlike the aggravated assault at issue in Garrett , injury to a child was "not a lesser included offense to the crime of murder." Id. at 721. More broadly, the Court sought to limit the scope of Garrett , but did so in vague terms, stating, "[T]he language carefully chosen in Garrett should not be given an overly broad meaning. Not every assaultive offense, if alleged as an underlying felony, will merge with the homicide in a felony murder indictment." Id.

Ultimately, the Court failed to address the substance of Easter's argument based on Garrett 's and Rodriquez 's holdings, and failed to conduct any statutory analysis. Instead the Court simply stated, "Petitioner may not, in this habeas corpus proceeding, collaterally attack the sufficiency of the evidence to support the conviction." Id.

Aguirre I (original opinion) expressed renewed support for Garrett .

A few months later in Aguirre v. State, the Court continued to muddy the waters by reaffirming the merger rule of Garrett in a manner seemingly at odds with Easter . 732 S.W.2d 320 (Tex. Crim. App. 1982) (hereinafter "Aguirre I" ). In Aguirre I , the indictment alleged two theories of liability for a killing: (1) an intentional or knowing killing, or (2) felony murder. Id. at 321. The felony-murder indictment alleged the predicate felony of criminal mischief, and further alleged that the act clearly dangerous to human life was shooting a gun into an occupied dwelling, thereby causing a death. Id. The facts at trial showed that Aguirre had fired a shotgun through the door of his ex-wife's home, striking and killing his daughter who was inside. Id. The jury found Aguirre guilty by a general verdict and did not indicate upon which theory of guilt it relied. Id. at 322.

The Court reversed the conviction, noting that if the jury had convicted Aguirre on the basis of the felony-murder theory, "its verdict could not be sustained for the reasons set forth in Garrett ." Id. Specifically, the Court noted that, in a prosecution for felony murder, the State may not "sustain its theory by using ‘the very act which caused the homicide ... as the felony which boosts the homicide itself into the murder category.’ " Id. (citing Garrett, 573 S.W.2d at 545 ). The Court also sought to limit the significance of Easter , noting that in Easter "the Court simply rejected an effort to attack collaterally the sufficiency of the evidence to support the conviction," and that "[n]othing held in Easter militates against" application of Garrett to Aguirre's case. Id. Thus, following Aguirre I , this Court appeared to suggest that Easter was an aberration due to its procedural posture as a habeas writ.

Murphy v. State exempted property-related predicate felonies from Garrett's merger doctrine .

Approximately a year and a half after Aguirre I , the Court issued its decision in Murphy v. State, 665 S.W.2d 116 (Tex. Crim. App. 1983). In Murphy , the Court yet again appeared to change course by indicating that the merger rule of Garrett would not apply to situations involving property-oriented underlying felony offenses.

The indictment in Murphy alleged that the defendant had committed felony murder predicated on arson of a habitation for the purpose of collecting insurance proceeds, and while in the course of and in furtherance of the commission of arson, he committed an act clearly dangerous to human life, to-wit: starting a fire in a habitation, thereby causing the death of another. Id. at 118.

On appeal, Murphy challenged his conviction for felony murder by arguing that the very same conduct—setting the fire—constituted the underlying felony as well as the "act clearly dangerous to human life," and was thus barred under Garrett 's merger doctrine. Id. at 119. The Court declined to apply Garrett to Murphy's case, reasoning that Murphy's act of arson and the resulting homicide were not the same act. Id. The Court never specified what separate act, apart from the arson, caused the death of the victim. The Court also failed to conduct any statutory analysis in reaching its holding. Noting these issues, Judge Teague dissented from the denial of a motion for rehearing. Id. at 120. Arguing for the withdrawal or overruling of the opinion, Judge Teague stated that the merger doctrine had been violated because the act of arson was the same act that caused the death:

I now find that it is clear as crystal that the State's reliance upon the same act to constitute both the underlying felony offense of arson and the act clearly dangerous to human life which caused the death of the deceased violates the doctrine of merger in that the only act shown to be the commission of the offense of arson, the underlying felony, is one and the same act which caused the death of the deceased.

Id. (Teague, J., dissenting from denial of reh'g). Judge Teague went on to point out that the statutory language of "in the course of and in furtherance of" also supports the application of the merger doctrine:

[T]he felony-murder statute contemplates that a homicide can become murder,

when not committed intentionally or knowingly, only if the act which causes the death occurs in the course of and in furtherance of the commission of or attempt to commit a felony other than voluntary or involuntary manslaughter, or in flight from such commission or attempt. Thus, it follows that the homicide can become murder only when some act evidencing the commission or attempted commission of the underlying felony offense is separate and distinct from the act which causes the death of the deceased .

Id. (emphasis added). Despite Judge Teague's statutory analysis, the Court declined the rehearing.

It appears that in Murphy the Court's sole reason for distinguishing Garrett was that Murphy involved a property offense (arson), whereas Garrett involved an assaultive offense (aggravated assault). See Johnson, 4 S.W.3d at 257 (considering Murphy and Garrett and stating, "There is some suggestion that the distinction lies, not in the fact that there was a separate act, but in the fact that the underlying offense of arson was a property offense, as opposed to an offense against a person."). But Section 19.02(b)(3) makes no distinction between or amongst types of predicate felonies, apart from excepting manslaughter. Whatever the Court's intention was in Murphy , it would signal the beginning of a complete abandonment of the merger rationale and a movement toward much broader application of the felony-murder rule.

Aguirre II (Opinion On Rehearing) doubled down on Murphy's holding.

Following Murphy and five years after its original opinion in Aguirre I , this Court withdrew its original opinion in Aguirre I and issued a new opinion upholding Aguirre's conviction. Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1982) (op. on reh'g) (hereinafter " Aguirre II "). The Court found that its original analysis in Aguirre I was "untenable" in light of Murphy . Id. at 324.

In Aguirre II, the Court held that Murphy was controlling because both cases involved property-type predicate felonies. Id. at 325. The Court determined that Aguirre's commission of criminal mischief—that is, attempting to blow open a door with a shotgun—"was clearly a property offense," and, "[i]n the furtherance of this offense, the deceased was shot and killed." Id. The Court distinguished Garrett , noting that, unlike Garrett's situation, Aguirre's "act of criminal mischief and the deceased's resulting homicide were not one in [sic] the same." Id. But, as in Murphy , the Court failed to explain how Aguirre's conduct in shooting through the door could be divided up so as to constitute distinct proof of both the predicate felony and the act clearly dangerous to human life.

Judges Clinton and Teague dissented. Judge Teague wrote separately calling Murphy "terribly reasoned." Id. at 327. Interestingly, he supported the merger doctrine under the plain language of the felony-murder statute, but he also argued that Garrett should be overturned. Id. at 329. He argued that Garrett had reached an incorrect result because he believed that two separate and distinct acts had been committed by Garrett, thereby supporting a felony-murder conviction. He noted that the Penal Code defined "act" as " ‘a bodily movement, whether voluntary or involuntary, and includes speech.’ " Id. at 330 (citing TEX. PENAL CODE § 1.07(a)(1) ). Based on this statutory definition, he found two "acts" in Garrett : (1) "the defendant's pointing his pistol at the store clerk constituted the offense of aggravated assault," and (2) "his pulling of the trigger constituted bodily movement, and was thus an independent ‘act’ ... Thus, in Garrett , there were two separate and independent acts," and Garrett "was properly charged and convicted" for felony murder. Id. (emphasis in original) (internal citations omitted).

Unlike Judge Teague's dissenting opinion, the majority opinion in Murphy failed to conduct any statutory analysis. Given the Court's cursory treatment of these issues, the logical inference to be drawn from Murphy was that the Court intended for Garrett to be limited to its facts, e.g., its holding would apply only to situations involving an underlying felony of aggravated assault.

4. Johnson served as the death knell for Garrett's merger doctrine.

In its 1999 decision in Johnson v. State , this Court reconsidered Garrett and expressly eliminated the merger doctrine. 4 S.W.3d 254 (Tex. Crim. App. 1999). In Johnson , the issue was whether a person may be convicted of felony murder when the underlying felony of injury to a child consists of the same act as the "act clearly dangerous to human life" causing death. Id. at 254. On appeal from his conviction, Johnson complained that the underlying felony and the act clearly dangerous to human life constituted a single act and had merged. Thus, relying on Garrett , Johnson contended that the evidence could not support a conviction for felony murder. Id. at 255. This Court disagreed.

The Court began its analysis by addressing Garrett and the cases that followed. It first cited with approval Garrett' s support of the theory of transferred intent, noting that "[t]he felony murder rule dispenses with the necessity of proving mens rea accompanying the homicide itself; the underlying felony supplies the culpable mental state." Id. It also reaffirmed Garrett 's holding that the felony-murder statute exempted not just manslaughter but any lesser-included offenses to manslaughter as well. Id. Notably, in affirming that aspect of Garrett , the Court expressly acknowledged that such interpretation is contrary to the plain language of the statute. Id. ("Despite the plain language, we have interpreted section 19.02(b)(3) as exempting from the felony murder rule not only manslaughter, but also lesser included offenses of manslaughter."). Then, ironically, while upholding Garrett for judicially amending the plain language of the felony-murder statute, the Court then struck down Garrett 's adoption of the merger doctrine which was founded on the statute's plain language. Id. at 258.

Once again, the Court conducted no statutory analysis in its Johnson opinion. Nowhere in Johnson does the Court discuss the Legislature's use of "and" to separate the underlying felony from the "act clearly dangerous to human life." Nowhere in Johnson does the Court discuss the Legislature's use of "in the course of and in furtherance of" or "in immediate flight from the commission or attempt." Nowhere in Johnson does the Court discuss the Legislature's wording that it is the separate "act," and not the felony itself, that must "cause[ ] the death of an individual." Instead, the Court relied solely on case law. Through its holding in Johnson , the Court effectively excised these key aspects of the statutory language, rendering words and phrases meaningless and permitting a single act to serve as proof of both the underlying felony and the dangerous act causing death. Id.

5. The Court's post- Johnson opinions reflect an approach to felony murder that is untethered from the plain statutory language.

This Court's post- Johnson felony murder opinions are reflective of the extent to which the Court's current approach has deviated from the statutory requirements for felony murder. Since Johnson, this Court has effectively permitted conviction for felony murder anytime a person engages in a felony or attempted felony (other than manslaughter and lesser-included offenses) and causes a death. As a practical matter, this approach has eliminated from the statute the requirement of proof of a separate act clearly dangerous to human life that is committed "in the course of and in furtherance of" the felony. Three additional cases that reflect the Court's current approach are Lawson, Lomax, and Bigon .

In Lawson v. State , Lawson argued that because the aggravated assault was the same act that killed the victim, his felony-murder conviction should be overturned. 64 S.W.3d 396 (Tex. Crim. App. 2001). Relying on Johnson , the Court upheld Lawson's conviction, noting that the merger rule from Garrett was no longer viable, except to the extent that felony murder "will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter." Id. at 397 (citing Johnson , 4 S.W.3d at 258 ). The Court explained that the only real question in Lawson's case, therefore, was whether an intentional or knowing aggravated assault is a lesser-included offense of manslaughter. Id. Because an intentional or knowing aggravated assault is not a lesser-included offense of manslaughter, which carries a culpable mental state of recklessness, this Court held that the conviction for felony murder was permissible. Id. Nowhere in Lawson did the Court conduct any statutory analysis of the felony-murder statute.

Several years later, in Lomax v. State , this Court considered whether the offense of felony driving while intoxicated ("felony DWI") could be the underlying felony in a felony-murder prosecution when felony DWI has no required mens rea . 233 S.W.3d 302, 303 (Tex. Crim. App. 2007). The Court answered this question in the affirmative, expressly overruling Rodriquez and finding that felony murder requires no mens rea . Id. at 307. In resolving Lomax's complaint, the Court ignored the plain language of the Penal Code (see discussion of Rodriquez, supra ) and further expanded the applicability of the felony-murder rule by holding that predicate felonies with no culpable mental state requirement, such as felony DWI, may give rise to a felony-murder conviction. Id. at 305-06.

Also at issue in Lomax was whether the facts supported a finding of felony murder. The Court observed that the defendant was "committing felony DWI on a crowded public street and also tailgating, speeding and weaving when his car collided with another car resulting in the death of a five-year-old girl." Id. at 303. In a footnote, the Court determined that "the evidence, therefore, shows that the victim's death occurred ‘in the course of and in furtherance of’ appellant's commission of an inherently dangerous felony DWI." Id. at 303 n. 4. In support of its reasoning, rather than conducting a statutory analysis, the Court cited Johnson , as well as Judge Cochran's concurring opinion in Lawson , for the proposition that a felony-murder conviction "can be based upon the underlying felony without proof of any additional dangerous act beyond that covered by the underlying felony." Id. (citing Johnson , 4 S.W.3d at 255-58 ; Lawson , 64 S.W.3d at 400-01 (Cochran, J., concurring)). The Court never addressed how speeding, weaving, and tailgating were "in furtherance of" driving while intoxicated, in the sense that those actions promoted or facilitated the commission of DWI. Neither did the Court conduct any analysis as to whether any of the dangerous acts aside from driving while intoxicated caused the death.

Finally, in Bigon v. State , this Court again upheld a felony-murder conviction where the underlying felony was felony DWI. 252 S.W.3d 360 (Tex. Crim. App. 2008). The indictment alleged that the act clearly dangerous to human life in Bigon was "driv[ing] a heavily loaded Jeep towing a loaded trailer across the center stripe of a roadway into the oncoming lane of travel." Id. at 366. Bigon contended that the evidence was insufficient to show that he committed a dangerous act that was "in furtherance of" felony DWI as required by the felony-murder statute. Bigon contended that the "in furtherance of" language meant that the act clearly dangerous to human life "must advance or promote the commission of the underlying felony, and that, in this case, the act of driving into oncoming traffic did nothing to advance the commission of felony DWI and even halted its commission." Id.

The Court, with little explanation and no statutory analysis, held: "[W]e disagree with [Bigon's] argument that driving into the other lane was not in furtherance of driving while intoxicated. A fact-finder could rationally have found beyond a reasonable doubt that Appellant committed an act clearly dangerous to human life in furtherance of felony DWI." Id.

The foregoing cases illustrate the Court's lack of consistent reasoning and a lack of rigor in applying the statutory language in felony-murder cases. Over the years the Court has abandoned the statutory requirements of: (1) a distinct act clearly dangerous to human life that may not be wholly subsumed within the predicate felony itself; and (2) the distinct act being "in furtherance" of the felony's commission. This abandonment has resulted in a vast expansion of felony murder well beyond what the Legislature intended.

Now, under the Court's current interpretation, almost any felonious conduct (whether inherently dangerous or not) that results in an accidental or unintended death (regardless of whether the actor has a culpable mental state) may be elevated to strict-liability first-degree felony murder. This expansive interpretation not only violates the statutory language, but it also violates the criminal justice grading scheme which requires proof of aggravating factors before an offense is elevated to a higher-degree felony and/or punishment range. For all of the foregoing reasons, I cannot agree with the course taken by this Court's interpretation. Conclusion

I dissent to the Court's opinion: (1) more broadly to the Court's current interpretation and application of our felony-murder statute; and (2) more specifically in this case to the fact that the Court fails to fully address the designated issue, in that the Court allows a felonymurder conviction based upon a single act.

First, a plain-language interpretation of our felony-murder statute, Texas Penal Code Section 19.02(b)(3), requires each of the following elements: (1) the defendant committed or attempted to commit a felony; (2) during the course of the felony's commission or its attempt, the defendant committed an additional act (separate and distinct from the underlying felony and not subsumed within that felony) that was clearly dangerous to human life; (3) the dangerous act was committed in the course of the commission or attempted commission of the felony; (4) the dangerous act was committed in furtherance of (to advance) the commission or attempted commission of the felony; and (5) the dangerous act caused the death of an individual. Not only does the plain language of the statute support this interpretation, but the statute's legislative history, the history of felony murder in Texas and in America, and the way that other states interpret and apply their felony-murder statutes also overwhelmingly support this interpretation.

The Court's current interpretation of felony murder abandons most of these elements.

Essentially, the Court has changed and limited the elements to: (1) the defendant committed or attempted to commit a felony other than manslaughter or a lesser-included offense of manslaughter; (2) during the commission or attempted commission of the underlying felony, the defendant's action caused the death of another. This is a vast expansion of the felony-murder statute and allows for strict, first-degree felony-murder liability for virtually any accidental or unintended death that occurs during the commission or attempted commission of any felony other than manslaughter or a lesser-included offense of manslaughter.

Second, in Fraser's case, the Court conducts no statutory interpretation, leaving its current interpretation in place, and decides solely that because the underlying felonies of injury to a child and child endangerment are not lesser-included offenses to manslaughter that Fraser's conviction is proper. In doing so, the Court fails to address the designated issue that requested a determination of whether a single act could serve as both the underlying felony and the clearly dangerous act.

Moreover, the Court's opinion upholds Fraser's felony-murder conviction based upon a single act. The single act alleged by the State—dosing a baby with diphenhydramine—cannot satisfy the separate elements of an underlying felony and an act clearly dangerous to human life. While I do not agree with all of the court of appeals' reasoning supporting its decision to reverse Fraser's felony-murder conviction, we should affirm its judgment and remand for a new trial. Accordingly, I strongly but respectfully dissent.