
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



M E M O R A N D U M   O P I N I O N

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Do Not Publish
