Texas Lawyer: Felony DWI & Murder

Felony DWI Can Be Basis for Felony Murder Prosecution
By Mary Alice Robbins

Texas Lawyer

Friday, June 29, 2007

Prosecutors can use the offense of felony driving while intoxicated to boost the charge against a defendant who causes a death in a traffic accident to felony murder, the Texas Court of Criminal Appeals held on June 27.

In a 6-2 decision in Lomax v. State, the CCA held that felony DWI can be the underlying felony in a felony-murder prosecution under Texas Penal Code §19.02(b)(3). With Judge Paul Womack not participating, the CCA affirmed Waco’s 10th Court of Appeals’ 2006 decision in Lomax.

According to the CCA’s majority opinion written by Judge Barbara Hervey, a 232nd District Court jury in Houston convicted Mark Wayne Lomax of felony murder and sentenced him as a habitual offender with two prior felony convictions to 55 years in prison. Hervey noted in the opinion that the evidence showed Lomax was committing felony DWI when his car collided with another vehicle, resulting in the death of a 5-year-old girl.

As further noted in the majority opinion, Lomax argued on appeal that felony DWI could not be the underlying felony for felony murder, because the underlying offense provides the required culpable mental state for felony murder. Felony DWI does not require proof of a culpable mental state.

However, Hervey pointed out in the opinion that while two subsections in Penal Code §19.02(b) expressly require a culpable mental state, §19.02(b)(3) does not.

“We hold that 19.02(b)(3) plainly dispenses with a culpable mental state,” Hervey wrote.

The CCA also held that felony DWI is not a lesser included offense of intoxication manslaughter. As noted in the majority opinion, felony DWI requires proof of two prior DWI convictions. But the proof of two prior convictions for DWI is not included in the proof required to establish intoxication manslaughter under Penal Code §49.08(a), Hervey wrote. [See the opinion.]

Judge Cheryl Johnson argued in her dissenting opinion that Texas Government Code §311.026 — which provides that a special or local provision prevails over a general provision — bars the use of felony DWI as the predicate for felony murder.

Johnson noted that the felony murder section is general, applying to a wide range of offenses, while the intoxication manslaughter statute deals specifically with causing a death while driving intoxicated. She reasoned that the special provision, §49.08, should prevail. Judge Charles Holcomb joined Johnson in the dissent.

Joseph Leo Lanza, Lomax’s attorney and an associate with Richard Haynes & Associates in Houston, says he plans to file a motion for rehearing with the CCA. He declines further comment.

Eric Kugler, the Harris County assistant district attorney who represents the state in Lomax, did not immediately return a telephone call seeking comment.

Lisa McMinn, assistant state prosecuting attorney, says several prosecutors around the state already have used the felony DWI statute to bump up a charge to felony murder.

“I think a lot of prosecutors will utilize that more now that they have gotten the green light,” McMinn says.

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