## Facts

- Mark Wayne Lomax, with at least two prior DWI convictions, was committing felony DWI while driving on a crowded public street.
- He drove in a manner described as tailgating, speeding, and weaving through traffic.
- Lomax’s vehicle collided with another car, killing a five-year-old girl who was in the other vehicle.
- Lomax’s blood-alcohol concentration at the time of the collision was about three times the legal limit.
- The State prosecuted Lomax for felony murder under Texas Penal Code § 19.02(b)(3), using felony DWI as the underlying felony.
- A jury convicted Lomax of felony murder and, after finding habitual-offender status based on prior felony convictions, assessed a 55-year prison sentence.
- On appeal, Lomax argued felony DWI could not support felony murder because DWI lacks an express culpable mental state; the intermediate appellate court rejected the claim.
- The Texas Court of Criminal Appeals granted discretionary review to resolve whether a no-mens-rea felony can be the predicate for felony murder.

## Issues

1. Whether felony DWI, an offense defined without an express culpable mental state, can serve as the underlying felony for felony murder under Texas Penal Code § 19.02(b)(3).
2. Whether § 19.02(b)(3) “plainly dispenses with any mental element” under Texas Penal Code § 6.02(b), such that felony murder does not require a separate mens rea for the killing beyond commission of the predicate felony.

## Decision

- The Texas Court of Criminal Appeals affirmed Lomax’s felony-murder conviction and sentence.
- The court held felony DWI may serve as the predicate felony for felony murder under § 19.02(b)(3).
- The court concluded § 19.02(b)(3) plainly dispenses with a culpable mental state for murder, as shown by its omission of mens rea language present in other murder subsections.
- The court rejected the argument that felony murder requires the predicate felony to supply a culpable mental state for the homicide.
- The court declined to read intoxication-manslaughter statutes as limiting prosecutors to that charge when a DWI results in death.

## Legal Principles

- Under Texas Penal Code § 6.02(b), a culpable mental state is required unless the offense definition plainly dispenses with any mental element.
- Texas Penal Code § 19.02(b)(3) omits an express culpable mental state and, in context with § 19.02(b)’s other subsections that expressly include mens rea, reflects legislative intent to dispense with a mental element for felony murder.
- Felony murder under § 19.02(b)(3) requires proof that the defendant caused death in the course of and in furtherance of committing or attempting to commit a felony (other than manslaughter), or in immediate flight from it; it does not require proof of intent to kill.
- A predicate felony’s lack of an express mens rea element does not, by itself, disqualify it from serving as the underlying felony for felony murder under § 19.02(b)(3).
- The existence of intoxication manslaughter does not preclude charging felony murder based on felony DWI, and felony DWI is not a lesser-included offense of intoxication manslaughter.

## Conclusion

The court upheld a felony-murder conviction predicated on felony DWI, holding that Texas’s felony-murder statute dispenses with a separate culpable mental state for the killing and permits any non-manslaughter felony—including felony DWI—to serve as the predicate when a death is caused during its commission.


Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007)