      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



                            MEMORANDUM OPINION


               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

Do Not Publish




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