Dennis Ray Driver v. State
2011 Tex. App. LEXIS 4413
| Tex. App. | 2011Background
- Eight-month-old died from acute cocaine toxicity ingested while in Driver's sole care; underlying felony cocaine possession charged as underlying offense for felony murder.
- Jury convicted Driver of felony murder and sentenced him to life in prison after hearing evidence of Driver's drug convictions.
- Driver challenged the sufficiency of the evidence to prove he possessed cocaine and that he committed an act clearly dangerous to human life, and sought manslaughter and criminally negligent homicide as lesser included offenses.
- Autopsy and toxicology confirmed lethal cocaine levels; ingestion occurred within four to six hours before death; no cocaine found in the apartment at the time of police search.
- Driver admitted handling cocaine in statements to police and grand jury, including keeping stones of cocaine and acknowledging possible residue on his hands.
- Trial court denied the requested lesser included offenses; the court and jury proceeded on felony murder theory with the finding that cocaine was a deadly weapon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Evidence sufficiency for possession | Driver possessed cocaine on night in question | No proof Driver brought cocaine into the home | Sufficient evidence supports possession |
| Act clearly dangerous to human life | Driver's handling of cocaine and proximity to child created dangerous act | No direct bodily movement causing danger | Evidence supports act clearly dangerous to human life |
| Lesser included offenses | Kuykendall theory permits lesser included offenses | Lomax bars treating manslaughter/negligent homicide as lesser included offenses of felony murder | Court did not err in denying manslaughter and criminally negligent homicide as lesser included offenses |
Key Cases Cited
- Jackson v. Virginia, 443 S.W.3d 307 (U.S. 1981) (standard of legal sufficiency review)
- Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) (non-exclusive list of possession links; sufficient linkage governs possession conviction)
- Lair v. State, 265 S.W.3d 580 (Tex. App.—Houston [1st Dist.] 2008) (presence and circumstantial links to establish possession)
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (two-step test for lesser included offenses)
- Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007) (felony murder requires no culpable mental state; Lomax rejects transferred intent in this context)
- Kuykendall v. State, 609 S.W.2d 791 (Tex. Crim. App. 1980) (held criminally negligent homicide could be lesser included offense under transferred intent theory (overruled later by Lomax))
- Hernandez v. State, 2010 WL 1632627 (Tex. App.—Austin 2010) (unpublished in WL; cited for rationale that negligent homicide not lesser included offense to felony murder)
- Christian v. State, 286 S.W.3d 63 (Tex. App.—Texarkana 2009) (felony possession underlying felony in felony murder)
- Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) (standard sufficiency review and appellate deference to jury credit)
- Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) (linking circumstantial evidence to possession of contraband)