                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                             Nos. 04-13-00326-CR & 04-13-00327-CR

                                   Christopher Hughes LAMAR,
                                             Appellant

                                               v.
                                          The STATE of
                                       The STATE of Texas,
                                             Appellee

                    From the 290th Judicial District Court, Bexar County, Texas
                          Trial Court Nos. 2012CR5013 & 2012CR5014
                            Honorable Melisa Skinner, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: July 30, 2014

AFFIRMED AS REFORMED

           The State charged Christopher Hughes Lamar with the offenses of felony murder,

intoxication manslaughter, and manslaughter in two separate three-count indictments, and tried

both cases in a single trial. Lamar pled guilty to Count II—intoxication manslaughter and not

guilty to the remaining counts. A jury found Lamar guilty of felony murder and assessed

punishment at 30 years’ incarceration. In three issues, Lamar lodges complaints regarding his

murder conviction and the lack of consideration of mitigating circumstances during punishment.
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We reform the trial court’s judgment in cause number 2012CR5013 to correct a clerical error, and

affirm the judgments of the trial court as reformed.

         Because Lamar does not raise a sufficiency challenge, we need not conduct a review of the

evidence supporting the jury’s verdict. 1 Lamar first argues that “the jury erred in finding [him]

guilty of murder instead of intoxication manslaughter.” Without proper briefing or citation to the

record, Lamar essentially argues that a death resulting from driving while intoxicated should be

prosecuted as intoxication manslaughter, and that the State overzealously charged him with felony

murder in an attempt to secure a higher punishment. Despite this complaint, Lamar acknowledges

that the State may properly choose to prosecute a driving while intoxicated (DWI) homicide

offense as a felony murder. See Lomax v. State, 233 S.W.3d 302, 303, 311 (Tex. Crim. App. 2007)

(felony DWI may serve as the underlying felony for a felony-murder prosecution). We decline

Lamar’s request to follow Justice Johnson’s dissent in Lomax to require that a death resulting from

driving while intoxicated be exclusively prosecuted as intoxication manslaughter, and overrule his

first issue. See id. at 313-14 (Johnson, J., dissenting); TEX. R. APP. P. 38.1(i) (briefs must contain

clear and concise argument for the contentions made).

         In his second issue, Lamar complains that “the jury erred in not considering the mitigating

circumstances of [his] brain injury and its effects when deciding the issue of punishment, and the

sentence of 30 years was excessive.” Similarly, in his third issue, Lamar argues that the trial court

erred in failing to instruct the jury to consider mitigating circumstances in assessing punishment,

as permitted in capital cases. See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(d)(1) (West Supp.

2013) (in capital case, court’s charge must instruct jury to consider evidence that militates for or


1
  A blood specimen taken from Lamar shortly after the collision, which resulted in the deaths of Jessica Rodriguez
and her daughter, Kaylee Flores, showed that his blood alcohol concentration was .23 grams of alcohol per 100
milliliters of blood. Lamar admitted to having two prior DWI convictions, and to being intoxicated while driving with
his knee, texting with one hand, and holding a GPS device in the other.

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                                                                    04-13-00326-CR & 04-13-00327-CR


mitigates against the imposition of the death penalty). Lamar maintains that the evidence raised

the issue of mitigation, pointing to his own testimony and that of his mother indicating that he

sustained a brain injury at the age of sixteen that left him “in horrible shape” and caused him to

take numerous prescription drugs. Lamar asks that we remand the cases to the trial court to hold

a new sentencing hearing and to instruct the jury to give proper weight to the mitigating

circumstances of a brain injury in assessing punishment.

          First, Lamar has not shown that he attempted to offer mitigating evidence but was denied,

or that the jury failed to consider the evidence that was presented during punishment. In fact, it

could be argued that the sentence of 30 years was lenient considering that Lamar faced the

possibility of a life sentence. Second, we cannot say the trial court erred in failing to sua sponte

instruct the jury to consider mitigating circumstances where the death penalty was not a possibility.

See id. (mitigation charge only required in capital cases). Lamar does not cite to any authority

standing for the proposition that such a charge is required in non-capital cases. Despite Lamar’s

urging for this court to require that a mitigation charge be given in non-capital cases where the

defendant’s mental impairment is at issue, we are not at liberty to adopt such a rule, and as an

intermediate court of appeals, we are bound to follow the precedent of the court of criminal

appeals. See TEX. CONST. art. V, § 5(a). Accordingly, we overrule Lamar’s second and third

issues.

          The trial court’s judgment in cause number 2012-CR-5013 should be reformed to reflect

the correct judgment date. See TEX. R. APP. P. 43.2(b); Banks v. State, 708 S.W.2d 460, 462 (Tex.

Crim. App. 1986) (court of appeals may reform the judgment to correct an obvious clerical error

when it has the necessary data before it). The record indicates the jury rendered a verdict on April

22, 2013. Accordingly, we reform the judgment in cause number 2012-CR-5013 to accurately



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                                                                  04-13-00326-CR & 04-13-00327-CR


reflect April 22, 2013 as the date of judgment. As reformed, the judgments of the trial court are

affirmed.


                                                Rebeca C. Martinez, Justice

Do not publish




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