An unintended death can lead to a murder charge in Texas. Under the felony-murder provision, the prosecutor does not have to prove that the accused wanted anyone to die.

I would begin with the indictment. It should tell us which felony the State alleges and what the accused supposedly did to cause the death. Until we have that information, discussing a defense to “murder” is too broad. Section 19.02 contains more than one way to charge that offense.

What Section 19.02(b)(3) requires

Section 19.02(b)(3) ties the death to a felony. Manslaughter cannot be that felony. The accused must commit or attempt an act clearly dangerous to human life, causing the death, while committing or attempting the felony and furthering it, or while in immediate flight from it.

I would mark the alleged felony and the alleged dangerous act separately on my copy of the indictment. Then I would look for the proof of each. If the State cannot establish the felony it has charged, pointing to a death does not fill that gap. The causation allegation needs its own review, too.

The DWI case that explains the intent issue

In Lomax v. State, the underlying offense was felony DWI. The Texas Court of Criminal Appeals held in 2007 that it could support felony murder, although felony DWI does not require a culpable mental state. The court also rejected the argument that a mental state for the murder had to come from the underlying felony.

A relative might say, ‘He never wanted anyone to get hurt.’ I would not brush that aside. But I would explain Lomax before letting the family rely on lack of intent to kill as the answer to a felony-murder charge. That defense argument does not address what this part of the statute requires.

Looking past the police summary

Suppose the allegation involves dangerous driving. Before I could evaluate it, I would need to know the road, the conditions and the conduct alleged. Driving through a red light is a different allegation from swerving into another lane. A report may use the word “reckless” without describing either one. I would ask for the observations behind that word.

A speed estimate deserves a source. I would ask who supplied the number and whether it came from a measurement or a guess. That answer can affect what a reconstruction expert is able to say.

The medical examiner’s report belongs in the file too. If causation is disputed, counsel may need an independent expert to review the medical evidence. A police summary of the findings would not be enough for that work.

Felony murder is not automatically capital murder

Capital murder is a separate charge under Section 19.03. A death during a felony does not automatically meet that section’s requirements. Ask the lawyer which statutory provision the State is relying on.

Section 19.02 generally makes murder a first-degree felony, subject to its punishment provisions. A useful discussion of sentencing needs the actual charge and the person’s circumstances.

For an initial consultation, bring the indictment if available, the court notices and any papers from the arrest. Tell counsel about recordings or messages that may be held by someone else. Give names and contact details where you have them so the lawyer can follow up.

Legal sources

Texas Penal Code, Sections 19.02 and 19.03.

Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007).

General information about Texas law, not legal advice for a particular case. Reading this article does not create an attorney-client relationship.