      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00331-CR



                               Fermine Louis Castillo, Appellant

                                                 v.

                                  The State of Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
   NO. 05-677-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Fermine Louis Castillo guilty of felony murder, for which it

assessed a punishment of thirty years’ imprisonment, and intoxication manslaughter, for which it

assessed a punishment of twenty years’ imprisonment. See Tex. Penal Code Ann. § 19.02(b)(3)

(West 2003), § 49.08 (West Supp. 2007). Appellant contends that the two convictions constitute

double jeopardy, and the State concedes error. Accordingly, we will reverse the intoxication

manslaughter conviction. In his other issues, appellant contends that the felony murder count should

have been quashed, and that the evidence is legally and factually insufficient to support his

conviction for that offense. We will overrule these contentions and affirm the murder conviction.

               A few minutes after 5:00 a.m. on April 21, 2005, appellant was driving his Jeep

Cherokee south—the wrong way—in the northbound lanes of Interstate 35 when he collided head-on

with a Chevrolet van driven by Isaac Dyck. Appellant was alone in his Jeep, but Dyck’s wife and
seven of their children were also in the van. One of the children, also named Isaac, was killed.

Appellant was intoxicated.

               Count one of the indictment alleged that at the time and place of the incident,

appellant was operating a motor vehicle while intoxicated, that appellant had two previous

convictions for driving while intoxicated, and that, “in the course of and in furtherance of the

commission” of this felony offense, appellant “committed an act clearly dangerous to human life,

namely, operated a motor vehicle southbound in a northbound lane on Interstate 35 and collided

with another vehicle,” causing the death of Isaac Dyck. See id. § 19.02(b)(3) (West 2003) (felony

murder), § 49.04(a) (West 2003) (driving while intoxicated), § 49.09(b)(2) (West Supp. 2007)

(enhanced driving while intoxicated offense). Appellant moved to quash this count, arguing that a

person cannot be guilty of a homicide unless he causes the death of another intentionally, knowingly,

recklessly, or with criminal negligence, and that driving while intoxicated cannot serve as the

underlying felony in a felony murder prosecution because it does not require a culpable mental state.

He brings forward this argument in his second issue on appeal.

               While this appeal was pending, the court of criminal appeals announced its opinion

in Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007). Like appellant, Lomax was driving

while intoxicated when he had a fatal collision, and he was convicted of felony murder. Id. at 303.

The court of criminal appeals granted review to determine whether a felony murder conviction can

be based on driving while intoxicated or any other felony that does not require a culpable mental

state. Id. The court concluded that it can, holding that section 19.02(b)(3) plainly dispenses with

a culpable mental state. Id. at 304-05. In other words, the actor need not intend to cause the death



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of the deceased or have any other culpable mental state with regard to “the act of murder,” and

therefore the underlying felony need not have a culpable mental state. Id. at 307.

                Lomax is dispositive of this issue. The trial court did not err by overruling appellant’s

motion to quash count one. See also Bignon v. State, Nos. PD-1769-06 & PD-1770-06, 2008

Tex. Crim. App. LEXIS 1, at *9 (Tex. Crim. App. Jan. 16, 2008) (reaffirming Lomax). Issue two

is overruled.

                In his third and fourth issues, appellant contends that the evidence is legally and

factually insufficient to sustain his felony murder conviction. See Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007) (legal sufficiency standard of review); Watson v. State, 204 S.W.3d 404,

414-15 (Tex. Crim. App. 2006) (factual sufficiency standard of review). Appellant does not

challenge the sufficiency of the evidence with regard to the underlying felony of driving while

intoxicated. Moreover, he does not contend that the State failed to prove that he was driving the

wrong way on the interstate and collided with the deceased’s vehicle, causing the deceased’s death.

Nevertheless, appellant urges that the evidence is insufficient in two respects, both having to do with

the alleged “act clearly dangerous to human life.”

                First, appellant contends that the State failed to prove that he was driving recklessly

when he collided with the deceased’s vehicle. That is, appellant contends that the State did not prove

that the act clearly dangerous to human life, “operat[ing] a motor vehicle southbound in a

northbound lane on Interstate 35 and collid[ing] with another vehicle,” was committed recklessly.1


       1
          As authority, appellant cites the State’s response to his motion to quash, in which the
statement was made that “[b]y requiring proof of an act clearly dangerous to life, the statute
implicitly adopts a recklessness requirement.”

                                                   3
In Lomax, however, the court of criminal appeals noted that it had previously decided that a culpable

mental state is not required for the “act clearly dangerous to human life.” 233 S.W.3d at 307 n.16

(citing Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App. 1983) (interpreting what is now

section 19.02(b)(2)).

               Appellant’s second argument is that the State failed to prove that the act clearly

dangerous to human life was committed “in the course of and in furtherance of the commission” of

the underlying felony. Appellant does not deny that he drove the wrong way and collided with the

deceased’s vehicle while in the course of driving while intoxicated, but he urges that this conduct

did not further the commission of that offense. To the contrary, appellant argues that the collision

actually halted the commission of the underlying felony. The same argument was raised and rejected

in Bignon. See 2008 Tex. Crim. App. LEXIS 1, at *9-12. There, the court of criminal appeals held

that a rational trier of fact could find that “driv[ing] a heavily loaded Jeep towing a loaded trailer

across the center stripe of a roadway into the oncoming lane of travel” was conduct in furtherance

of the underlying felony driving while intoxicated offense. Id. at *11-12.

               The State was not required to prove that the act clearly dangerous to human life was

committed recklessly. Whether viewed in the light most favorable to the verdict or neutrally, the

evidence reasonably supports the jury’s finding that appellant committed the dangerous conduct in

the course and in furtherance of his commission of felony driving while intoxicated. Issues three and

four are overruled.

               We sustain appellant’s first issue, by which he urges that the convictions for felony

murder and intoxication manslaughter constitute double jeopardy. Both convictions were based on



                                                  4
the same conduct resulting in the death of the same victim. The State concedes that under the

circumstances, the two convictions constitute unauthorized multiple punishments for the same

offense. See Bignon, 2008 Tex. Crim. App. LEXIS 1, at *27-29. The remedy is to set aside

the conviction for the less serious offense, which here is intoxication manslaughter. See Ex parte

Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006).

               There are separate judgments of conviction for each count. The judgment of

conviction on count one, for murder, is affirmed. The judgment of conviction on count two, for

intoxication manslaughter, is reversed, and the prosecution for that offense is dismissed.




                                             ___________________________________________

                                             W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed in part; Reversed and Dismissed in part

Filed: June 26, 2008

Do Not Publish




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