If I'm not mistaken, Warren Diepraam down in Houston pioneered this charge in Texas. Today, 10\21\2004, Richerd Alpert and Mollee Westfall got a guilty verdict on a felony murder theory with DWI-3rd or more as the underlying felony. The intoxicated defendant entered the off ramp of an interstate highway and, driving the wrong way at a high rate of speed, promptly killed the father of newly born twins. Have any of our friends in Houston seen the defense brief on Warren's case? Any ideas on how the court of appeals might rule?

I've been following the local news on this case. I have to say, we spent some time yesterday kicking this one around in our heads. I like it. It's a perfectly reasonable use of the legal theories available to arrive at an enhanced punishment range for an abhorrent event.

We've got a fella with 1 previous felony DWI and a pending DWI manslaughter. We used the previous felony to enhance the punishment range from 2nd to 1st.

Do you think we could have used his first two DWIs to charge DWI Murder, then used the previous DWI Felony to enhance the 1st degree with a prior felony enhancement paragraph to reach 15-99?

[This message was edited by Philip D Ray on 10-21-04 at .]

Warren's case has been transferred to the Waco COA and is bogged down with self-representation issues; no brief has been filed yet.

Phillip, as for your case, you've already achieved a first degree range, same as what we have here with the felony murder. I'm afraid that your hypo would run afoul of the caselaw disallowing double use of priors for enhancement, assuming that your felony DWI is based upon the same two prior DWIs (if the guy has gazillions of priors, the answer would be different). See Rodriguez, 31 SW3d 359 (San Ant 2000 pdrr) & Rivera, 957 SW2d 636 (CC 1997 pdrr) (St can't use same prior DWI for DWI-enhancement and 12.42 enhancement).

You may want to re-evaluate your proof to determine if you can more easily prove a felony murder, but you're getting a straight first degree range either way. Since our prosecution and Warren's are sure to be appealed, that may factor into your decision to wait and see the courts' responses, though. The main issue is non-intentional felony murder with an underlying strict liability felony. There is an excellent opinion authoried by former PJ Onion -- Rodriguez, 953 SW2d 342 (Austin 1997 pdrr) which details the history of felony murder. He notes the trend toward abandoning the fiction of an implied intent to kill and notes that the the 1994 legislation followed this trend in 19.03(b)(3) by designing a unique statute exempting only manslaughter as the predicate felony.

We think using felony murder fills a gap where you have a confluence of aggravating factors. Multiple DWIs fit into a scheme for increasing punishment based upon the # of priors. If someone commits their first or second DWI and, in the process kills, intox manslaughter takes the death into account. Yet, where you have someone with multiple DWIs and they continue to drive and ultimately kill someone, until Warren's case, the typical charge was intox manslaughter. If the defense had its way, someone with 10 prior DWIs who kills another on his 11th should still face the same charge and that doesn't seem right. The Legislature has decided that people with two DWIs are felons -- we're just using that statutory scheme and plugging it into the felony murder statute.

Well said, Tdohoney. I was actually on the fence about the charge at first, but I came to those same conclusions in the end, though you stated your argument much clearer than I did in my head.

I'm assuming the defense is going to appeal? I will interested to see what the 2nd Court of Appeals and possibly the CCA have to say.

Thirty-five years.

With more than one previous felony conviction we could have just added the others as previous felonies and gone habitual on him. (25-99)

I'm just pondering getting a higher minimum in future cases. Those enhanced minimums on 1st degrees usually get pled around here.

The Fort Worth Court of Appeals says felony murder using felony DWI + death is OK. For the opinion, go to this link.

The Waco Court of Appeals also says felony murder for felony DWI + death is OK. For the opinion, go to this link.. Excellent opinion by Judge Gray (and NO DISSENT!), but strangely the opinion is not published (huh?).

I imagine the CCA will feel inclined to write on the issue, but they shouldn't, as the CA both cases applied clear precedent and direct reasoning.

We have an identical case going to trial soon in Williamson County and are grateful for Richard Alpert in Fort Worth, Warren Diepraam in Houston (who is currently locking horns in a intoxication assault case with Dick DeGuerin and a drunk plastic surgeon) and all the others for getting something on the books. Way to go guys!

[This message was edited by John Bradley on 03-31-06 at .]

[This message was edited by John Bradley on 03-31-06 at .]

Court upholds drunken driver's murder conviction

By MELODY McDONALD
STAR-TELEGRAM STAFF WRITER
FORT WORTH -- The 2nd Court of Appeals has upheld the murder conviction of a chronic drunken driver who caused a wreck in 2003 near downtown that killed the father of infant twins. The decision paves the way for similar prosecutions statewide.

In an opinion released this week, the Fort Worth-based court rejected the defense argument that prosecutors went too far when they prosecuted Jake Aaron Strickland, 27, for murder, rather than intoxication manslaughter, in the death of Brent Jones, 37.

It is the first time a Texas appeals court has published an opinion affirming a murder conviction for habitual drunken drivers who kill someone, said Assistant District Attorney Richard Alpert, who prosecuted Strickland with Mollee Westfall.

"This opinion gives prosecutors throughout the state the green light to subject the most dangerous drunk drivers to the charge -- and the range of punishment -- they deserve," Alpert said. "I'm positive more and more [district attorneys'] offices are going to follow our lead and do this."

David Richards, Strickland's appellate attorney, said the appeals process is not over yet. He said he plans to take the case to the Texas Court of Criminal Appeals.

"It's a published opinion, meaning it goes into the law books," Richards said. "It's a novel question of law -- the type the Texas Court of Criminal Appeals is normally interested in. We will be preparing the paperwork that will allow them to do that.

"It should come as no surprise that the losing party would take this case to a higher court."

In October 2004, jurors in state District Judge George Gallagher's court convicted Strickland of murder and sentenced him to 35 years in prison.

Strickland, who had been drinking at a Sundance Square nightclub Dec. 21, 2003, drove the wrong way on East Belknap Street onto Airport Freeway, where he slammed into a Chevrolet Tahoe occupied by Julie and Brent Jones. Brent Jones was killed instantly.

The verdict was the first time Tarrant County prosecutors had won a murder conviction in a DWI-related fatality. A drunken driver who causes a death typically is charged with intoxication manslaughter, which carries a punishment of two to 20 years in prison.

Prosecutors had decided to pursue the murder charge -- which is punishable by five years to life in prison -- against Strickland after discovering that he had two previous misdemeanor convictions for driving while intoxicated. The collision that killed Jones was Strickland's third DWI-related charge; because it was the third, the charge became a felony. Under the Texas Penal Code, a defendant can be charged with murder if, while committing a felony, he performs an act "clearly dangerous to human life." In this case, prosecutors accused Strickland of committing felony DWI and then committing a dangerous act by driving the wrong way down the freeway.

Defense attorneys Abe Factor and Terri Moore vehemently argued during the trial that the state had overcharged Strickland -- that he should be charged with intoxication manslaughter and face punishment no greater than 20 years in prison. That was also the basis of Strickland's appeal.

"This was a case that pushed the boundaries of [the prosecutors'] discretion," Richards said. "We contend that they overstepped their boundaries, and they say that they are just within."

Justice Terrie Livingston, who was joined by Justices John Cayce and Anne Gardner, wrote in the opinion the state properly charged -- and the judge properly allowed -- the prosecution of Strickland for felony murder.

"It's definitely a precedent-setting case," said Susan Bragg, director of victim services for Mothers Against Drunk Driving-North Texas. "We're going to encourage DAs in other counties to consider using a murder conviction as a way to get a higher sentence in unique situations where a repeat offender finally kills."

And while the Strickland case was the first such conviction in Tarrant County, it wasn't the first in Texas. In March 2003, Mark Lomax was convicted of murder in Harris County and sentenced to 55 years in prison for driving drunk and slamming into another vehicle in Houston, killing a 5-year-old girl. It was also Lomax's third DWI.

Lomax's murder conviction was also affirmed this week in an unpublished opinion.

Alpert hopes the opinions will send a strong message to repeat drunken drivers.

"To all habitual drunk drivers who are tempted to test their luck on our roadways: If you drive while intoxicated and take a life, you may spend the rest of your life behind bars," he said.

Who else has a pending DWI felony murder case?

Just wondering if anyone else has had any experience (good or bad) with Felony Murder based on DWI? You can answer via email if you wish (it's on my profile.)

There's an article in the new Prosecutor on that topic. Front page.

http://www.tdcaa.com/newsletters/files/JA06Prosecutor.pdf

Jan. 14, 2007, 10:31PM
Woman charged with murder after traffic fatality

Copyright 2007 Houston Chronicle

A Houston woman who was under the influence of alcohol and narcotics when she crashed into a disabled truck Saturday night, killing a passenger in her car, has been charged with murder, Harris County deputies said.

Gaylynn Hilbun, 49, was driving in the 22500 block of the southbound North Freeway about 9 p.m. when she struck an 18-wheeler that had broken down on the shoulder, deputies said.

Hilbun's vehicle was swerving across lanes just before the wreck, deputies said. A passenger in her vehicle, identified as Paul Henry Williams, died from his injuries, deputies said.

Hilbun was charged with murder because she had been convicted of other drunken driving offenses in the past, authorities said. She remains in the Harris County Jail with bail set at $50,000.