                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS
 EDUARDO SANDOVAL,                                §
                                                                  No. 08-08-00189-CR
                   Appellant,                     §
                                                                     Appeal from the
 v.                                               §
                                                                   243rd District Court
 THE STATE OF TEXAS,                              §
                                                                of El Paso County, Texas
                   Appellee.                      §
                                                                  (TC# 20070D01400)
                                                  §

                                           OPINION

       The State indicted Eduardo Sandoval, Appellant, for two counts of felony murder, with both

counts alleging driving while intoxicated third or more as the underlying felony, and for two counts

of failure to stop and comply in an accident involving personal injury or death. The jury found

Appellant guilty on all counts and assessed sentence at forty years’ confinement for each count of

felony murder, and five years’ confinement for each count of failure to stop and comply. In his sole

issue on appeal, Appellant challenges the trial court’s denial of his motion to quash the indictment.

We affirm.

                                         BACKGROUND

       The facts are well known to the parties, and we do not recite them here in detail. An

abbreviated recitation shows that in the early morning hours on March 14, 2007, Appellant, traveling

at about 65 miles per hour in his truck, ran a red light at the intersection of Cincinnati Street and

Mesa Street, struck two pedestrians, and sped off. When the police located Appellant shortly

thereafter, they detected a strong odor of alcohol emitting from his person. At 4:35 a.m., a blood

sample was taken, and subsequent analysis revealed that Appellant’s blood-alcohol content was 0.23.
Appellant later provided a written statement, admitting to drinking and to striking the two victims.

                                             ANALYSIS

        Appellant’s sole issue contends that the trial court abused its discretion by denying his motion

to quash the felony-murder counts in the indictment. According to Appellant, all driving-while-

intoxicated offenses are misdemeanors at the time they are committed, and therefore, he concludes

that driving while intoxicated at the time he struck the victims could not support the underlying

felony for felony murder. See TEX . PENAL CODE ANN . § 19.02(b)(3) (Vernon 2003) (stating a person

commits murder if he commits or attempts to commit a felony, “and in the course of and in

furtherance of the commission or attempt, or in immediate flight from the commission or attempt,

he commits or attempts to commit an act clearly dangerous to human life that causes the death of an

individual”). To support his argument, Appellant seizes on language in Section 49.09 of the Texas

Penal Code, to argue that a driving-while-intoxicated offense is not a felony at the time of its

commission unless it is proved at trial that he was convicted twice before of an intoxication offense

involving the operation of a motor vehicle, aircraft, watercraft, or amusement ride. See TEX . PENAL

CODE ANN . § 49.09(b)(2) (Vernon 2003) (stating that a driving-while-intoxicated offense is a felony

of the third degree if it is shown “on the trial of the offense” that the person was previously convicted

twice before of any other offense relating to the operating of a motor vehicle, aircraft, or a watercraft

while intoxicated, or operating or assembling an amusement ride while intoxicated). We disagree.

        In Mendoza, we concluded that a felony driving-while-intoxicated offense may serve as the

requisite underlying felony in a felony-murder prosecution. See Mendoza v. State, No. 08-04-00369-

CR, 2006 WL 2328508, at *4 (Tex. App.–El Paso Aug. 10, 2006, pet. ref’d) (op., not designated for

publication) (holding that felony driving while intoxicated is not a lesser-included offense of

manslaughter, nor does it require a culpable mental state; therefore, felony driving while intoxicated
may be the underlying felony for the offense of felony murder, which also dispenses with a culpable

mental state). The Court of Criminal Appeals recently reached the same conclusion. See Lomax v.

State, 233 S.W.3d 302, 311 (Tex. Crim. App. 2007) (holding that because the felony-murder statute

does not require a culpable mental state, a felony driving-while-intoxicated offense, which also does

not require proof of a culpable mental state, may serve as the underlying felony). However, Judge

Johnson, in a dissenting opinion, argued that a person, upon causing a death resulting from driving

while intoxicated, should not be prosecuted under the felony-murder statute because it is not known

at the time of the offense whether the driving-while-intoxicated offense is a felony or a

misdemeanor. Id. at 313 (Johnson, J., dissenting).

        We respectfully disagree with Judge Johnson. Although Section 49.09 provides that a

driving-while-intoxicated offense is a felony “if it is shown on the trial of the offense” that the

offender was convicted twice before of driving while intoxicated, we do not believe the plain

language of the statute labels the offense a misdemeanor at the time of its commission. See TEX .

PENAL CODE ANN . § 49.09(b)(2). Rather, the statute provides that the offense is a felony, and the

fact that the prior convictions are not proven until the trial does not alter the nature of the offense.

Id.; see also Jones v. State, No. 14-06-00879-CR, 2008 WL 2579897, at *3 (Tex. App.–Houston

[14th Dist.] July 1, 2008, pet. ref’d) (mem. op., not designated for publication) (rejecting similar

complaint).

        As noted in Strickland, a driving-while-intoxicated offense third or more is not merely a

misdemeanor with an enhanced punishment. See Strickland v. State, 193 S.W.3d 662, 665 (Tex.

App.–Fort Worth 2006, pet. ref’d). Instead, the offense is a felony, and the prior intoxication

offenses are simply necessary elements to prove the charged offense. Accord Gibson v. State, 995

S.W.2d 693, 696 (Tex. Crim. App. 1999); see also Luedke v. State, 711 S.W.2d 657, 659 (Tex. Crim.
App. 1986) (recognizing that felony and misdemeanor DWI are separate offenses because “[a] prior

conviction is an essential element of felony driving while intoxicated,” but “[i]t is not an element

of the misdemeanor offense”). In Jones, the court determined that the felony offense of driving

while intoxicated is committed and completed when the offender drives while intoxicated, while

having two prior convictions for driving while intoxicated; “[i]t is not completed months later at trial

when those prior DWI convictions are actually proven.” Jones, 2008 WL 2579897, at *3.

        We agree with our sister courts. Accordingly, we hold that the felony offense of driving

while intoxicated was completed at the time Appellant, having two previous convictions for driving

while intoxicated, drove while intoxicated. Therefore, Appellant’s felony driving-while-intoxicated

offense properly satisfied the requisite felony for felony murder. The trial court did not err by

denying Appellant’s motion to quash, and Appellant’s sole complaint is overruled.

                                          CONCLUSION

        Having overruled Appellant’s sole issue, the trial court’s judgment is affirmed.



                                                GUADALUPE RIVERA, Justice

February 26, 2010

Before Chew, C.J., Rivera, J., and Moody, Judge
Moody, Judge, sitting by assignment

(Publish)
