Lomax v. State, No. 10-03-00156-CR (TX 3/29/2006)

• Decision Date: 29 March 2006
• Docket Number: No. 10-03-00156-CR.,10-03-00156-CR.
• Parties: MARK WAYNE LOMAX, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Supreme Court

Page 1

Unpublished Opinion

MARK WAYNE LOMAX, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 10-03-00156-CR.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed March 29, 2006.

Do Not Publish.

Appeal fromthe 232nd District Court, Harris County, Texas, Trial Court No. 907,028.

Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Lomax appeals his conviction for murder. See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2003). We affirm.

MOTION TO SET ASIDE INDICTMENT. In Lomax's first issue, he contends that the trial court erred in overruling Lomax's motion to quash the indictment. We review a trial court's ruling on a motion to set aside an indictment on an abuse-of-discretion standard. See Tex. Code Crim. Proc. Ann. art. 27.03 (Vernon 1989); Grice v. State, 162 S.W.3d 641, 645 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd); e.g., County v. State, 812 S.W.2d 303, 312 (Tex. Crim. App. 1989) (op. on orig. submission). "A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree." McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); accord Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).

Culpable Mental State. First, Lomax argues that the indictment erroneously failed to allege a culpable mental state. See TEX. PENAL CODE ANN. § 6.02 (Vernon 2003). In general, "[i]f an indictment fails to allege a culpable mental state for an offense, it is defective and is subject to a motion to quash." Dinkins v. State, 894 S.W.2d 330, 338 (Tex. Crim. App. 1995). Even "[i]f the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element." TEX. PENAL CODE ANN. § 6.02(b).

Lomax was charged with felony murder in the course of committing felony driving while intoxicated. See TEX. PENAL CODE ANN. § 19.02(b)(3), § 49.04(a) (Vernon 2003). "Felony murder is an unintentional murder committed in the course of committing a felony . . . ." Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004). Lomax argues that driving while intoxicated cannot serve as the underlying felony for felony murder, since driving while intoxicated does not require proof of a culpable mental state. See TEX. PENAL CODE ANN. § 49.11(a) (Vernon 2003). Lomax points to three Texas Court of Criminal Appeals cases in support of that argument:

First, in Johnson v. State, the Court plainly stated "[t]he felony murder rule dispenses with the necessity of proving mens rea accompanying the homicide itself; the underlying felony supplies the culpable mental state." 4 S.W.3d 254, 258 [sic] (Tex.Crim.App. 1999) (emphasis added). In Homan v. State, the Court held that the State is allowed to transfer the mental state from the commission of a separate felony to an independent homicide committed in the course of a separate felony. 19 S.W.3d 847, 849 n. 4 (Tex.Crim.App. 2000). Finally, in Lawson v. State, the Court again noted: "the culpable mens rea is supplied by the commission of the underlying felony with its accompanying mental state of intention, knowledge, or recklessness." 64 S.W.3d 396, 400 n. 17 (Tex.Crim.App. 2001).

(Corr. Br. at 26 (alterations by Lomax)); see also Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). Lomax takes those cases to mean that "the underlying felony supplies the requisite mental state for felony murder," (Corr. Br. at 26); that is, that a mental state is required, and that the underlying felony supplies it.

The Court of Criminal Appeals has rejected the theory that "[w]here there exists no general mens rea based upon proof of the commission of a separate felony which may be transferred from that crime to an independent homicide committed in the course thereof, the felony murder rule cannot apply." Johnson v. State, 4 S.W.3d 254, 255-56 (Tex. Crim. App. 1999) (quoting Richardson v. State, 823 S.W.2d 710, 714 (Tex. App.-San Antonio 1992, pet. ref'd)). We take Lomax's cases to mean, rather, that felony murder takes on the culpable mental state, if any, of the underlying felony; but where the underlying felony lacks a culpable mental state, so does felony murder based upon that underlying felony. "[P]roof of a culpable mental state is not required for conviction of an offense under" Texas Penal Code Chapter 49, which includes driving while intoxicated. Tex. Penal Code Ann. § 49.11(a); see id. § 49.04(a); Zulauf v. State, 591 S.W.2d 869, 872-73 (Tex. Crim. App. [Panel Op.] 1979). "[I]t is apparent that the Legislature never intended to require proof of the culpable mental state of a person charged with an offense where one of the essential elements is voluntary intoxication." Ex parte Ross, 522 S.W.2d 214, 218 (Tex. Crim. App. 1975); accord Lewis v. State, 951 S.W.2d 235, 237 (Tex. App.-Beaumont 1997, no pet.); see generally Aguirre v. State, 22 S.W.3d 463, 470-76 (Tex. Crim. App. 1999). "It is common knowledge that intoxication temporarily destroys faculties essential to safe driving," and courts "cannot in good conscience speculate that the Legislature failed to recognize that which human experience has shown." Ormsby v. State, 600 S.W.2d 782, 786 (Tex. Crim. App. [Panel Op.] 1979) (op. on orig. submission) (citing Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952)); Ross at 218 (citing Schiller). When driving while intoxicated is a felony offense, it will support felony murder. E.g., Fox v. State, 145 Tex. Crim. 71, 72-73, 165 S.W.2d 733, 734 (1942) (op. on orig. submission) (interpreting Act approved May 28, 1923, 38th Leg., 2d C.S., ch. 23, § 2, 1923 Tex. Gen. Laws 56, 56 (formerly codified at Tex. Penal Code art. 802, 1925 Tex. Crim. Stat. 179) (repealed 1993) (current version at TEX. PENAL CODE ANN. § 49.04(a)); Act of Oct. 14, 1935, 44th Leg., 1st C.S., ch. 424, § 1, 1935 Tex. Gen. Laws 1654, 1654 (formerly codified at TEX. REV. CIV. STAT. art. 6707l-1) (repealed 1993) (current version at TEX. PENAL CODE ANN. § 49.04(a))); Snyder v. State, 132 Tex. Crim. 73, 74-75, 102 S.W.2d 424, 425 (1936) (op. on orig. submission) (per curiam); id., 132 Tex. Crim. at 77, 102 S.W.2d at 426 (op. on reh'g) (interpreting same); see Hines v. State, 515 S.W.2d 670, 674 (Tex. Crim. App. 1974);Ormsby, 600 S.W.2d at 786 (Douglas, J., dissenting) (on reh'g).¹ Accordingly, when driving while intoxicated is the underlying felony for felony murder, felony murder's "definition plainly dispenses with any mental element." See TEX. PENAL CODE ANN. § 6.02(b).

Merger. Next, Lomax argues that felony driving while intoxicated merges with felony murder. The merger doctrine holds that "[w]here there exists no general mens rea based upon proof of the commission of a separate felony which may be transferred from that crime to an independent homicide committed in the course thereof, the felony murder rule cannot apply because there is a `merger' of the two offenses." Johnson, 4 S.W.3d at 255-56 (quoting Richardson, 823 S.W.2d at 714). The Court of Criminal Appeals has held that the merger "doctrine exists only to the extent consistent with [Penal Code] section 19.02(b)(3)." Id. at 258. That is, "a conviction for felony murder under section 19.02(b)(3)[] will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter." Id. Otherwise, however, felony murder will lie. "The merger doctrine . . . applies only to prosecutions for felony murder under Section 19.02(a)(3) where the underlying felony is manslaughter or a lesser included offense of manslaughter." Homan v. State, 19 S.W.3d 847, 849 n.4 (Tex. Crim. App. 2000); e.g., Lawson v. State, 64 S.W.3d 396, 397 (Tex. Crim. App. 2001).

Lomax apparently argues that he was charged with intoxication manslaughter, and that intoxication manslaughter constitutes manslaughter: "The act of killing someone while driving while intoxicated cannot be separated from the felony offense of intoxication manslaughter; therefore, the two merge and prosecution under the felony murder statute is precluded." (Corr. Br. at 28.) But the Legislature has separated the two offenses of felony murder and intoxication manslaughter. See TEX. PENAL CODE ANN. §§ 19.02, 49.08(a) (Vernon 2003). And Lomax was not charged with intoxication manslaughter; he was charged with felony murder. Moreover, intoxication manslaughter is not a lesser included offense of manslaughter. "An offense is a lesser included offense," in relevant part, if "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged" or "it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission." Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). An offense that has a culpable mental state is not a lesser included offense of intoxication manslaughter, which has no culpable mental state. Torres v. State, 52 S.W.3d 285, 286 (Tex. App.-Corpus Christi 2001, no pet.). Manslaughter has a culpable mental state. TEX. PENAL CODE ANN. § 19.04(a) (Vernon 2003). Accordingly, Lomax's offense does not implicate the merger rule.

The trial court did not abuse its discretion in overruling Lomax's motion to set aside the indictment. We overrule Lomax's first issue.

SUFFICIENCY OF THE EVIDENCE. In several issues, Lomax contends that the evidence was insufficient.

Legal Sufficiency. In several issues, Lomax contends that the evidence was legally insufficient. "The inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution." Drichas v. State, 175 S.W.3d 795, 798 (Tex....