The State appeals the district court's order granting appellee Richard Howard's motion to quash count one of 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). Count one alleges that Howard, 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 over a curb and striking Donald Hatley, causing Hatley's death. 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, Howard'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 count one of the indictment and remand the cause for further proceedings.

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Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Reversed and Remanded

Filed: September 26, 2007

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