I have a case ....

Defendant is intoxicated, is speeding, weaving, not watching where he is going, and drives into a car occupied by complainant, a five year old child. Complainant dies as a result of the collision. Defendant is taken to the hospital where they take his blood for medical treatment and determine that he is a .277 plasma.

I would like to charge the defendant with "Felony Murder." The felony is DWI #3 and the acts clearly dangerous to human life I have alleged are the driving facts.

Has anybody tried this before?? If anybody has done this before or knows somebody who has, please respond or email me and let me know how it turned out and what the pitfalls are, if any.

Our office hasn't done it, but it sounds like a good idea. You could always allege intox. manslaughter along with the felony murder and see what the jury does. Based on the driving facts, it looks like you can also get a deadly weapon finding like the recent case from Williamson County (sorry -- I don't remember the cite, but it was on "case of the day"). Have you thought about a seizure / forfeiture of the defendant's vehicle based on the use in a 1st or 2nd degree felony? It might not be worth much (if anything) after the crash, but forfeiture would allow you to preserve it.

Felony murder certainly sounds viable in this instance. In that context, I don't think you need to seek a deadly weapon since murder is a 3(g) to begin with.

I'm not sure I would indict intox manslaughter as a second count. I could see the defense arguing to the jury that you were stretching to get felony murder when intox manslaughter was a perfectly good law which fit the crime. In so doing, he just might convince them to convict on the second degree instead of the first.

Thanks for the responses.

What do you think about the lack of a mental state in a DWI?? Penal code only states commit a felony and DWI#3 is a felony that does not require a mental state.

Interesting point since the definition of criminal homicide involves some type of intent, even if it is criminally negligent.

Another thought that comes up is that felony murder specifically excludes the use of manslaughter as your underlying felony. Could the defense argue, as I mentioned before, that what he is really guilty of is intoxication manslaughter (even if you don't indict it as a second count), thus knocking out your ability to get to felony murder by definition?

Sorry, only questions without answers here.

My thinking on possibly indicting the Intox manslaughter was that the defense may be able to get a jury instruction on it based on the evidence, so the jury could have that option even if not indicted. Based on the facts it sounds like you could make a pretty good argument that Felony Murder is appropriate. Sounds like a case to spend some time with the grand jury on to see what they think.

I'm a little iffy on the proposition, but they (and y'all) could probably get a lesser of regular old manslaughter to give the jury an out (if needed).

I don't think you can get intox manslaughter as a lesser of murder under Article 37.09.

He was roaring drunk, though, at .277, which would give the defense the argument: "Folks, this guy was so stupid drunk that he had no conscious thoughts at all, so he ain't guilty of murder or manslaughter, and the bad old state screwed up by getting greedy when all they had to do was allege that he was intoxicated, driving, and killed poor peggy sue . . . blah blah blah." So, Frank's two count indictment is probably a good idea depending on the nature of your juries.

Glad I won't have to write the appeal brief . . . what do your high-powered appellate lawyers there in Houston think?

Doesn't the statutory language seem to imply the intent to commit the underlying felony. I would question how often you could show the person intended to drive while intoxicated and by accident or mistake cause another's death. While the driver could easily be shown to be reckless in his assessment of his state of intoxication, you're talking about a really mean drunk who actually sets out to be deadly, even if just hoping for a mistake. It seems to me that by excluding reckless homicide the legislature was saying you have formed an intent to engage in the other felonious conduct (even if that conduct does not require a knowing or intentional mental state) and probably make a conscious choice to commit the act clearly dangerous to human life. I have a similar case where I am sure the surviving family members would like to see the defendant punished for murder, but we resisted the urge and kept it at manslaughter.

Maybe you have a better understanding of Johnson, 4 S.W.3d 254 than I have been able to form.

[This message was edited by Martin Peterson on 04-11-02 at .]

Would agg assault with a deady weapon work
as the underlying felony in light of
Lawson v. State 64 SW3rd 396????

Just a thought.

Austin American Statesman reported a murder indictment on what sounded like this case? Sounds good...