State v. Craig Alan Poth

• Court: Court of Appeals of Texas
• Decided: September 26, 2007
• Docket: 03-07-00120-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00120-CR The State of Texas, Appellant

v.

Craig Alan Poth, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. D-1-DC-06-900370, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

The State appeals the district court's order granting appellee Craig Alan Poth's motion to quash the indictment in this cause accusing him of felony murder. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West 2006) (giving State right of appeal); Tex. Penal Code Ann. § 19.02(b)(3) (defining felony murder). The indictment alleges that Poth, while in the course of committing the felony offense of driving while intoxicated, committed an act clearly dangerous to human life by driving a motor vehicle into an oncoming lane of traffic and colliding with another motor vehicle, causing the death of Carolyn Bowles. The district court ruled as a matter of law that because the offense of driving while intoxicated does not have a culpable mental state, it cannot serve as the basis for a felony murder prosecution.

While this appeal was pending, the Texas Court of Criminal Appeals announced its decision in Lomax v. State, No. PD-0944-06, 2007 Tex. Crim. App. LEXIS 870 (Tex. Crim. App. June 27, 2007). In Lomax, the court held that section 19.02(b)(3) plainly dispenses with a culpable mental state and that felony driving while intoxicated can be the underlying offense in a felony murder prosecution. Id. at *1, *7. The court overruled in part the opinion in Rodriguez v. State, 548 S.W.2d 26, 28-29 (Tex. Crim. App. 1977), on which the district court relied in this cause. Id. at *13-14. In his brief to this Court, Poth's counsel concedes that the Lomax opinion is dispositive and that the trial court's ruling is erroneous in light of this new authority.

On the authority of Lomax, we reverse the district court's order dismissing the indictment and remand the cause for further proceedings.

__________________________________________

G. Alan Waldrop, Justice

Before Chief Justice Law, Justices Waldrop and Henson

Reversed and Remanded

Filed: September 26, 2007

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