According to a recent story out of San Antonio Bexar County District Attorney Susan Reed has indicated she is going to get tough on repeat DWI offenders who are involved in fatal wrecks. Last year she successfully prosecuted a repeat offender for felony murder, instead of the more specific offense - intoxication manslaughter.

So how do you get to felony murder? To understand that, you have to start with an understanding of intoxication manslaughter. Section 49.08 of the Texas Penal Code defines intoxication manslaughter - you operate a motor vehicle in a public place and are intoxicated and by reason of that intoxication causes the death of another by accident or mistake. Basically you drive while you are drunk, and .your intoxication contributes to the accident that causes the death of another. It's important to note that you don't have to intend that a death will occur, or even be reckless about the possibility a death could occur. The courts have described felony murder as an "unintentional murder".

Felony murder is a different type of murder; you don't necesarrily need to have the intent to cause the death of another. Instead, you have to attempt or attempt to commit a felony, and during the course thereof you commit an act clearly dangerous to human life.The felony would be driving while intoxicated, having been twice before convicted of driving while intoxicated. For those who are interested, felony murder can be found in Section 19.02 of the Texas Penal Code

You might wonder how two different laws can cover the same thing. There is a doctrine of statutory construction called in para materia, Basically that means that if there is a statute dealing with specific situation it will control over a more general statute. However, where the intent or objective of the two statutes is different they will be both given effect. Courts have held these two statutes are not in para materia, and therefore the prosecutor can decide which one to charge you with.

There is at least some good news in this. You can't be convicted of both offenses. The State tried that in Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) and the Court of Criminal appeals you couldn't do it.

So what's the difference in the two offenses. As you migh guess, it's in the punishment that can be assessed. In most situations intoxication manslaughter is a second degree felony, which means the maximum punishment is 20 years. Felony murder is a first degree felony, which carries a maximum sentence of life - big difference.

No one ever thinks they are going to be involved in an accident - even if they are driving while intoxicated. Accidents do happen though, and if you are intoxicated that accident might lead to a charge of murder. Yet another reason to use common sense and don't drive when you've more than the limit.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.
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