                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00358-CR

ROBERT BLAKE ADAMS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                           From the 40th District Court
                               Ellis County, Texas
                             Trial Court No. 34553CR


                                    OPINION


      Robert Blake Adams was convicted of the offense of felony murder based on the

underlying offense of felony driving while intoxicated and sentenced to sixty-five years

in prison. TEX. PEN. CODE ANN. §§ 19.02(b)(3); 49.04 (West 2003). Adams complains that

the felony murder statute violates federal due process because of the lack of a mens rea

requirement, that it was improper to convict him of murder based on the lack of a mens

rea, that the indictment should have been dismissed because he committed the offense

of intoxication manslaughter which cannot be the basis of a felony murder conviction,

that a death resulting from intoxication is not murder but rather intoxication
manslaughter, and that the evidence was insufficient. Because we find no error, we

affirm the judgment of the trial court.

Facts

        Adams was driving on a farm-to-market road when he crossed over the center

stripe and struck another vehicle, which resulted in the death of the driver of that

vehicle. His blood alcohol content was .33 grams of alcohol per 100 milliliters of blood,

which is more than four times the legal limit of .08 grams. Adams stipulated that he

had been convicted of driving while intoxicated twice previously.

Due Process and Mens Rea

        Adams’s first four issues challenge the constitutionality and legality of charging

him with felony murder.1 The Texas Court of Criminal Appeals has expressly rejected

Adams’s claim that felony DWI, which has no independent mens rea requirement,

cannot serve as the underlying felony for a felony murder conviction. See Bigon v. State,

252 S.W.3d 360, 365, 373 (Tex. Crim. App. 2008); Lomax v. State, 233 S.W.3d 302, 307-08

(Tex. Crim. App. 2007). Additionally, the Court of Criminal Appeals has rejected the

argument that intoxication manslaughter is the exclusive remedy when a death results

from a felony DWI. Lomax, 233 S.W.3d at 309.




1 Specifically, Adams’s four issues are: (1) Federal due process is offended if a non-regulatory criminal
provision dispenses with a mens rea requirement; (2) prosecuting a case where a death results from a
person driving while intoxicated as murder is contrary to Texas statutory law based on the failure to
require a mens rea; (3) the facts of this case established that Appellant committed the offense of
intoxication manslaughter [because] the Texas felony murder statute specifically prohibits manslaughter
from being the underlying felony in a felony murder prosecution so this indictment should have been
dismissed; and (4) a death that results from driving while intoxicated should be prosecuted as
intoxication manslaughter and not murder.

Adams v. State                                                                                    Page 2
       Adams does not cite any Texas authority showing that the Texas felony murder

statute violates the federal constitutional provision regarding due process. Further, the

cases he cites fail to show that his conviction for felony murder is unconstitutional on

due process grounds because the charged offense lacked an element of culpable

criminal intent or mens rea.     The Supreme Court “has never articulated a general

constitutional doctrine of mens rea” and we have found no authority that the Supreme

Court has ever held a state criminal statute unconstitutional for lack of scienter. Powell

v. Texas, 392 U.S. 514, 535, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968); see also Montana v.

Egelhoff, 518 U.S. 37, 56, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996) (“The doctrines of actus

reus, mens rea, insanity, mistake, justification, and duress have historically provided the

tools for a constantly shifting adjustment of the tension between the evolving aims of

the criminal law and changing religious, moral, philosophical, and medical views of the

nature of man. This process of adjustment has always been thought to be the province

of the States.”); Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 2 L. Ed. 2d 228

(1957) (“We do not go with Blackstone in saying that a ‘vicious will’ is necessary to

constitute a crime ... for conduct alone without regard to the intent of the doer is often

sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude

elements of knowledge and diligence from its definition.”); Shevlin-Carpenter Co. v.

Minnesota, 218 U.S. 57, 70, 30 S. Ct. 663, 54 L. Ed. 930 (1910) (“[P]ublic policy may

require that in the prohibition or punishment of particular acts it may be provided that

he who shall do them shall do them at his peril and will not be heard to plead in



Adams v. State                                                                         Page 3
defense good faith or ignorance.”); Lomax v. Thaler, No. H-09-0705, 2010 U.S. Dist. LEXIS

87683, 2010 WL 3362203, at 6 *4-5 (S.D. Tex. Aug. 25, 2010) (addressing the same issue).

       The absence of scienter does not render a statute invalid if there is some

indication of legislative intent, express or implied, to dispense with mens rea as an

element of a crime. United States v. Staples, 511 U.S. 600, 605, 114 S. Ct. 1793, 128 L. Ed.

2d 608 (1994) (citations omitted). In Lomax, the Court of Criminal Appeals noted that, in

enacting the Texas felony murder statute, there was “clear legislative intent to plainly

dispense with a culpable mental state.” Lomax, 233 S.W.3d at 305 (citing Aguirre v. State,

22 S.W.3d 463, 472-76 (Tex. Crim. App. 1999)). The Court of Criminal Appeals observed

that “the plain language of § 19.02(b)(3) also does not exclude felony DWI as an

underlying felony for a felony-murder prosecution[.]” Id. at 309. Felony DWI, which

does not require proof of a culpable mental state, may serve as the underlying felony in

a felony murder prosecution. Id. at 309. The Court has since reaffirmed the ruling that

a felony DWI may serve as the underlying offense in a felony murder conviction. See

Bigon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008). None of the authority

provided by Adams holds that felony murder cannot be charged in this manner or that

his conviction is invalid for lack of the requisite mens rea as it relates to this offense. We

overrule issues one, two, three, and four.

Sufficiency of the Evidence

       Adams complains that the evidence was insufficient in that the “act clearly

dangerous to human life,” which was driving across the center stripe of a roadway into



Adams v. State                                                                          Page 4
the opposing lane of traffic, was not “in furtherance of” the commission of the offense of

felony DWI. See TEX. PEN. CODE ANN. § 19.02(b)(3).

        In reviewing the sufficiency of the evidence to support a conviction, we view all

of the evidence in the light most favorable to the prosecution in order to determine

whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61

L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality

op.).

        Adams does not contend that the evidence was insufficient to prove that he in

fact did cross the center stripe of the roadway, which caused the collision in which an

individual was killed. Rather, he contends that crossing the center stripe was not “in

furtherance of” the offense of felony DWI, which he contends should be defined as

advancing or promoting the commission of the underlying felony. However, the Court

of Criminal Appeals rejected this specific contention in Bigon v. State, which has very

similar facts to the case before us. Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008)

(“clearly dangerous act” was “driv[ing] a heavily loaded Jeep towing a loaded trailer

across the center stripe of a roadway into the oncoming lane of travel.”) We see no

legally relevant distinction between the facts of this case and the facts of Bigon. The

evidence was sufficient to sustain Adams’s conviction in that a reasonable juror could

have determined beyond a reasonable doubt that the act of crossing the center stripe,

resulting in the collision that caused the death of an individual was an act in

furtherance of the offense of felony DWI. We overrule issue five.

Adams v. State                                                                        Page 5
Conclusion

       Having found no error in the trial court’s judgment, we affirm the judgment of

conviction.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 8, 2011
Publish
[CRPM]




Adams v. State                                                                 Page 6
