Monday, June 13, 2011

DWI Appeal - Texas Felony Murder for DWI Does Not Require Mental State

In Adams v. Texas, --- S.W.3d ----, 2011 WL 2242607 (Tex.App.-Waco) the defendant was convicted of felony murder. 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.

On appeal, Adams claimed, inter alia, that the felony murder statute violated 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, and that a death resulting from intoxication is not murder but rather intoxication manslaughter.

Rejecting the above, the Texas court stated as follows:

"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 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."

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