First felony murder case involving DWI offense prosecuted in 2002
By BARRY HALVORSON bhalvorson@journal-spectator.com

While the charge of felony murder has been on the books for a number of years, it has only been recently that prosecuting attorneys in Texas have started using it in DWI cases.

"The statute itself has been around for a while," Wharton County Assistant District Attorney Gordon Dudley Jr. said. "An example of how it's been used in the past might be a bank robbery where one of the suspects uses a weapon to kill a guard. A co-conspirator in the robbery might not have known the other person was going to use a real weapon, but they still have a degree of liability in participating in the robbery."

Among the ways to commit murder, according to the Texas Criminal Code, is to commit a felony, other than manslaughter and an act clearly dangerous to human life, like using a gun in a crowded bank lobby. Or driving while intoxicated.

"Using it with a DWI as the underlying felony is a relatively new approach," Dudley said. "But the idea of using an existing law in a new way is something that prosecutors do all the time if the elements of a particular case don't fit existing case law."

The first felony murder case involving a DWI offense was in 2002 and was prosecuted by the chief of the vehicular crimes section of the Harris County District Attorney's Office, Warren Diepraam.

"For quite some time, there had been discussions among various district attorneys about how to prosecute habitual DWI drivers that kill," Diepraam said in a phone interview. "Prosecuting it as a manslaughter case where the habitual offender receives no more time than a first time offender just didn't sit right. We were looking for ways to increase the punishment range to fit the crime."

Diepraam said the range of punishment for intoxication manslaughter is two to 20 years while the range for felony murder is five years to life.

The landmark case Diepraam prosecuted was the State of Texas vs. Mark Wayne Lomax. In that case, Lomax was convicted of committing felony DWI when his car collided with another vehicle, resulting in the death of a 5- year-old girl.

"And Lomax received a 55-year sentence," Diepraam said. "I used that case because killing someone is just against the law and it is murder if there is an underlying felony. One of the key elements of the underlying felony is mental state and case law had already established there is no mental state for DWI. Otherwise, people would just get more drunk before they got behind the wheel to use that as a defense. But that is also why the felony murder statute is known as the 'accidental homicide' statute."

Since that first case, Diepraam said there have been several additional felony murder convictions involving DWI cases. And that his original case has gone before the Texas Court of Criminal Appeals, the state's highest criminal appeals court, and was upheld in a decision issued on June 27.

"Every case like this that has been brought to trial has been successfully prosecuted," Diepraam said. "And after being found guilty, each defendant has received more than the maximum sentence for intoxication manslaughter. It is clear that Texas juries are fed up with drunk drivers killing and are sending a message to the state."