By William Hix
Assistant Criminal District Attorney in McLennan County
There is an awful scene that is all too commonly repeated on Texas roadways: red and blue lights flashing, traffic backing up as onlookers survey the wreckage, and ambulances slowly carrying off people with little or no hope of resuscitation. The trope is so commonplace that entire organizations have sprung into being to stem the tide of tragedy that follows in the wake of intoxicated driving.
As prosecutors, when one of these case files hits our desks, we must wrestle with an intensely emotional and challenging decision process. The families of victims, the community at large, and our elected bosses have very high expectations about how these types of situations should be handled. The most critical decision for a case where a person (or multiple people) have died in a vehicular collision where a potential defendant was intoxicated is what charge to pursue. Rather than defaulting to the obvious charge, intoxication manslaughter, prosecutors should carefully evaluate the specific situation to find the shortest pathway to justice for their communities.
Intoxication manslaughter
Whenever a case file containing a fatality wreck with intoxication as a factor first arrives, either in the news or on your desk, most prosecutors will immediately recall something about “intox manslaughter” from their law school criminal courses. As outlined in Texas Penal Code §49.08, intoxication manslaughter occurs when a person operates a motor vehicle, aircraft, watercraft, or amusement ride in a public place while intoxicated and, by reason of that intoxication, causes the death of another by accident or mistake. There are a few wonderfully unique benefits to utilizing this charge, and there’s one very big factor to consider in terms of your evidence.
First, the biggest benefit to the prosecution of this charge that applies in all circumstances where it is employed: There is no mental state attached. “Intoxication manslaughter is a strict liability offense; thus, no culpable mental state is necessary to convict a defendant of intoxication manslaughter.”[1] This is a big departure from the other charges that could be employed in similar circumstances, all of which require proof of varying mental states, from intentional conduct all the way to negligent conduct and everything in between. Perhaps one of the saddest aspects of these cases is directly reflected in the lack of mental state required to prove it, that nobody involved wanted this to happen.
The most significant challenge associated with this charge is that the prosecutor must prove that the defendant’s intoxication caused the accident. As you are evaluating the evidence, ensure that you have admissible proof that the defendant’s intoxication—rather than roadway conditions or the actions of the deceased—caused the wreck. Anecdotally I can recall a case where a highly intoxicated driver struck and killed a bicyclist; however, it happened in the middle of the night, it was raining, and the cyclist was riding in the middle of the street on a curving two-lane road. That was a case where intoxication manslaughter would have been incredibly challenging to prove.
Importantly, “the State is not required to prove that intoxication is the sole cause of the accident.”[2] There are many types of evidence, both direct and circumstantial, that you can use to prove up this element. Courts have included things like:
• “Being intoxicated at the scene of a traffic accident in which the actor was a driver is [also] circumstantial evidence that the actor’s intoxication caused the accident, and the inference of causation is even stronger when the accident is a one-car collision.”[3]
• “Several eyewitnesses testified that defendant hit reflectors in the road as he approached the complainant, drove in excess of the posted speed, refused to take a field sobriety test, fell asleep at the scene while waiting in a police officer’s car, and had red, bloodshot eyes. The toxicologist testified that defendant’s blood alcohol concentration (BAC) was between .109 and .110 at time his blood was drawn two hours after accident.”[4]
• “Defendant drove his vehicle in excess of the posted speed limit, ran the red light, and collided with the victims’ vehicle without braking.”[5]
All of these things can go on the evidence scale to prove an intoxication manslaughter case, but as you will see in the discussion of some of our other charging options, you may not need to have that fight at all to get to the same place in terms of punishment.
It must absolutely be noted before moving on that there is an enhancement possibility that intoxication manslaughter shares only with capital murder cases. In §49.09(b-2), the charge is enhanced to a first-degree felony if the individual killed is either a firefighter or an emergency services personnel acting in their professional capacities as further defined in §49.09(b-3). In addition, where there are multiple victims, the legislature added a new first-degree felony in Senate Bill 745. It is effective September 1, 2025, and it applies to offenses committed after that date. In a situation where the deceased fits one of these categories, intoxication manslaughter charges should be strongly considered.
Manslaughter
Dropping the word “intoxication” from your charging instrument to simply read “manslaughter” changes significantly more than just where it lands in the alphabet. You have a different set of elements to prove when prosecuting a manslaughter charge under Penal Code §19.04 (including a reckless mental state), but this charge is worth adding to your toolbelt to deal with the situation of a roadway fatality with intoxication. We are still dealing with the same second-degree felony punishment range as we would be in an intoxication manslaughter case, with the same parole eligibility dates, so there isn’t a meaningful difference there. Essentially, the tradeoff you make when choosing manslaughter instead of intoxication manslaughter is that you are electing to take on the burden to prove recklessness instead of legal intoxication.
The best situation for this charge is where there is significant circumstantial evidence that a defendant had been drinking before getting behind the wheel and operating a vehicle, but not necessarily strong enough evidence to prove beyond a reasonable doubt that he was legally intoxicated. An indictment for manslaughter pursued in this way would simply allege as the reckless behavior all the facts and circumstances that tend to show the defendant was under some influence of an intoxicant, in addition to any of the dangerous driving behaviors such as speeding or weaving between lanes. The benefit here is that you are no longer required to prove that the defendant’s intoxication was the cause of the wreck; instead, you are proving that the defendant’s recklessness (impaired driving) was the cause of the death. You can couple bad driving behaviors, which may or may not be directly linked to intoxication, with all the circumstantial intoxication evidence to show jurors a clear picture of recklessness without the need to hyper-focus on any single piece of the recklessness puzzle.
Aggravated assault
An additional charge to include in your arsenal to deal with roadway fatality cases is counter-intuitively not a homicide charge at all. The elements of aggravated assault causing serious bodily injury are very provable in many of the circumstances in which a prosecutor would consider charging either intoxication manslaughter or manslaughter. In fact, statutorily speaking, death is included in the definition of serious bodily injury.[6] Beyond even that, courts consider aggravated assault and intoxication manslaughter (assuming the same deceased victim) to be the same offense for double jeopardy purposes.[7]
Electing to pursue an aggravated assault charge rather than manslaughter or intoxication manslaughter would be highly case-dependent in a strategic sense. The best use for this approach would be a situation in which the victim does not immediately pass away from her injuries. Yes, technically you can charge standard manslaughter here, but it can be highly effective to hold back some of your best punishment evidence (that the victim did die) until the punishment phase begins. Picture the scenario where you, the prosecutor, can argue in closing argument of guilt-innocence that the defendant’s actions left the victim clinging to life in a hospital bed—then imagine the gut punch to the jurors in the opening statement at punishment when revealing that the victim lost her fight to live. The benefit to charging such a case in this way is that you circumvent the need to connect the death beyond a reasonable doubt back to the defendant. With this approach, you are freed up from the requirement of proving the connection so you don’t get bogged down in medical testimony, which some jurors can have difficulty understanding.
A potential enhancement to an aggravated assault punishment range to keep an eye out for: Penal Code §22.02(b)(1)(B): If the actor uses a deadly weapon (the vehicle) in the commission of the assault and causes a traumatic brain or spine injury that results in a “persistent vegetative state” or “irreversible paralysis,” you have a first-degree felony. This would be a charge to pursue only if medical expert testimony is very solid on these issues, but the enhancement here makes good rational sense; a defendant who causes this level of injury should not get the “benefit” of the fact that the victim, rather than dying, suffers one of these two lifelong conditions.
Criminally negligent homicide
The next charge up for discussion is more in the category of “be aware when it is a lesser” than anything else. For our purposes, we always need to be conscious what defensive strategies we are exposing ourselves to in our charge selection. This charge, which is a state jail felony, could be requested as a lesser-included offense of manslaughter.[8] Importantly, criminally negligent homicide is not a lesser-included offense of intoxication manslaughter or aggravated assault.[9] Being aware of these potential defensive lesser-included offense requests and their applicability can guide you not only in your charging decision, but also in how you present the case.
In a situation with a highly sympathetic defendant, it is also valuable to consider criminally negligent homicide as a potential non-trial (plea) resolution to the case.
Felony murder
Ensuring that you consider all the possibilities brings our discussion around to the felony murder charge, as laid out in §19.02 of the Penal Code. The two big pillars that form this charge are the 1) commission or attempt of a felony, and 2) in furtherance of the commission or attempt, the defendant commits an act clearly dangerous to human life. This charge carries a first-degree punishment range.
There are two felonies to keep an eye out for in these case facts: felony-level DWI and evading arrest or detention in a vehicle (think DWI that turns into a high-speed chase), which can both function as an underlying felony for this charge.[10] Courts have been clear that felony DWI can be an underlying felony for the felony murder charge, and most of these have been in the context of DWI–3rd or more. There is no distinction made between how the DWI becomes a felony in the caselaw, so either DWI–3rd or more or DWI with a child passenger can function as the foundation.[11]
The enormous upside to a felony murder prosecution predicated on a DWI–3rd or more is twofold. First, there is no mental state required in the proof, and second, the jury will know from the reading of the indictment alone that the defendant is a repeat DWI offender who never learned his lesson.
The second prong here, an act clearly dangerous to human life, is a relative no-brainer where a trial prosecutor can exercise whatever evidentiary creativity you can muster. You can call long-serving law enforcement officers as experts, enter statistics from the Department of State Health Services, or even call a representative from Mothers Against Drunk Driving if you care to. You also have the distinct advantage of putting opposing counsel in the bind of trying to argue that impaired driving or fleeing from the police in a vehicle is somehow not an act clearly dangerous to human life. Most witnesses that the defense could call for any purpose would have to concede this point under even cursory cross-examination.
Injury to a child
Worth mentioning is the option to charge injury to a child if the decedent victim is under 14 years old at the time of death. Use this approach cautiously due to a real evidentiary challenge connected to the result-oriented mental states required for an injury to a child prosecution. By choosing this charge, you hand defense counsel the ability to argue that the defendant did not know and could not know that there was a child in the vehicle that he struck, and the law does hold that a defendant’s mental state in such a case is connected to the result, not the conduct itself.[12] Given that challenge, it would be difficult to secure a conviction for anything above a second-degree felony if you can convince a jury that the defendant was reckless regarding the result. If your fact pattern takes place in the parking lot of an elementary school, maybe this is the charge you want; otherwise, proceed carefully.
Remember this
The most powerful advantage we have as Texas prosecutors is to select the charge we walk into a courtroom to prove. To extend a combat sports analogy, we get to choose the kind of fight we want to have. If we know our opponent can’t grapple, we should probably have a wrestling match. Selecting the charge that gives us the fewest and most provable elements based on the facts is critical to sustained trial success. Keeping all options in mind can be the difference between there being no real consequences for the offender and him going to prison for the next 20-plus years.
[1] Cook v. State, 328 S.W.3d 95 (Tex. App.—Fort Worth 2010, pet. ref’d).
[2] Simmons v. State, 672 S.W.3d 821 (Tex. App.—Corpus Christi–Edinburg 2023, pet. ref’d).
[3] Id.
[4] Garcia v. State, 112 S.W.3d 839 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
[5] Carrillo v. State, No. 08-01-00471-CR, 2003 WL 1889943 (Tex. App.—El Paso, Apr. 17, 2003).
[6] See Texas Penal Code §1.07(46).
[7] Gunter v. State, 673 S.W.3d 335 (Tex. App.—Corpus Christi–Edinburg 2023, pet ref’d).
[8] Wasylina v. State, 275 S.W.3d 908 (Tex. Crim. App. 2009).
[9] Torres v. State, 52 S.W.3d 285 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.), Juneau v. State, 49 S.W.3d 387 (Tex. App.—Fort Worth 2000, pet ref’d).
[10] Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007), White v. State, 208 S.W.3d 467 (Tex. Crim. App. 2006).
[11] Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008).
[12] Banks v. State, 819 S.W.2d 676 (Tex. App.—San Antonio 1991, pet ref’d).