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Driver v. State

A jury convicted the appellant of felony murder, based on the underlying offense of cocaine possession, after appellant's 8-month-old son died of cocaine poisoning while allegedly in appellant's care. The evidence was legally sufficient to support the conviction for felony murder. Manslaughter is not a lesser included offense of felony murder. The trial court did not err by denying the request for manslaughter and criminally negligent homicide instructions. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-08-00522-CR, 06-09-2011.

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OPINION

A jury convicted Dennis Ray Driver of felony murder, based on the underlying offense of cocaine possession, after Driver’s eight-month-old son died of cocaine poisoning while in Driver’s care. See TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2003). After hearing evidence of Driver’s multiple drug convictions, the jury assessed his punishment at life in prison. On appeal, Driver contends that the evidence is legally insufficient to support the jury’s findings that he (1) intentionally or knowingly possessed cocaine or (2) committed an act dangerous to human life. He further contends that the trial court erred in failing to instruct the jury on manslaughter and criminally negligent homicide as lesser included offenses to felony murder. We conclude that the evidence is legally sufficient to support the conviction, and that the trial judge did not err in refusing to submit the requested lesser included offenses. We therefore affirm.

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