Murder Charge In DWI -- This Is A New One

It turns out that the wrong way driver in Fort Worth with the baby in her car had an alcohol level of .24.  It's a weird case because as cars left the roadway to get out of her way, one of those cars struck a man who died (he had stopped and had gotten out of his vehicle.)   The obvious charge was Intoxication Manslaughter (2 to 20 years) assuming the state could prove she "caused" that death (which they probably had a fair chance of doing despite the odd facts.)

But today the DA's office announced they would charge her with Murder (5 to 99 years). How? Murder normally means the intentional taking of another life. However, there's a fairly obscure provision of the penal code called "Felony Murder" that allows a person to be charged with Murder if (1) during the course of committing any felony, and (2) that person commits an act"clearly dangerous to human life and causes the death of another person."  There is no requirement of proving intent to kill.

The law has always been that the "felony" in Felony Murder could not be Intoxication Manslaughter. It had to be another felony. So what felony did she commit? Oh, that baby in the car! That baby becomes important! It is a State Jail Felony (the lowest felony on the books) to commit DWI with a child passenger younger than 15 years of age. So she is alleged to have committed a State Jail Felony and committed an act "clearly dangerous to human life" that caused the death of another person. The Felony Murder statute now kicks in.

Prosecutors first used the Felony Murder statute in a DWI case about seven years ago when someone had caused a death while committing their third DWI -- which is itself a felony.  This is the first time I've heard of the DWI With Child being used as the "underlying felony" in a Felony Murder Case