STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND
COURT OF APPEALS TARRANT COUNTY
J., delivered the opinion of the Court in which Keller, P.J.,
and Hervey, Richardson and Keel, JJ., joined. Walker, J.,
filed a dissenting opinion. Newell, J., concurred in the
result. Alcala, J., dissented. Keasler, J., did not
driving in a state of intoxication, Appellant rear-ended
another car that was stopped at a red light, causing the
driver and passenger bodily injury, but not serious bodily
injury. The trial court found that Appellant's SUV
constituted a deadly weapon that he used in the course of
committing felony DWI. The Fort Worth Court of Appeals
reformed the judgment to delete the deadly weapon finding,
holding that the evidence did not support it. Moore v.
State, 508 S.W.3d 645, 655 (Tex. App.-Ft. Worth 2016).
In its petition for discretionary review, the State now
contends that the court of appeals failed to draw every
reasonable inference from the evidence in support of the
deadly weapon finding. We agree and will reinstate the deadly
open plea, Appellant pled guilty to the offense of driving
while intoxicated, charged as a felony since he had been
convicted a number of times previously for that
offense. His blood alcohol content shortly
after his arrest was .27, almost three and a half times the
legal threshold for intoxication. But he pled not true to the
allegation that he used a deadly weapon in the course of the
offense, and the trial court conducted a punishment hearing
without a jury. Only one witness testified for the State,
was idling in her 2011 BMW sedan, with her foot on the brake,
four to five feet behind a white SUV, at a red light on the
three-lane service road of Highway 114, where it intersects
with Dove Road. There were other cars in the vicinity as
well, although Koen was not asked to estimate how many.
Koen's fourteen-year-old daughter was also in the car
with her. It was a Monday evening, between 6:20 and 6:30
p.m., and already dark. After she had been idling for only
"a few seconds or so" waiting for the red light to
change, according to Koen, "all of a sudden, there was a
huge impact and crash." Appellant's Mercedes SUV had
struck Koen's car from behind, pushing it forward so that
it struck the white SUV in front of her, in turn knocking the
white SUV out into the intersection. The white SUV was able
to proceed through the intersection, and it pulled over to
the shoulder with its flashers activated. Koen's airbags
never deployed, and nobody was seriously hurt; Koen and her
daughter both suffered only a few bruises and scratches, and
lingering soreness. But Koen's three-year-old BMW was
later declared by an insurance adjuster to be a total loss.
On cross-examination, Koen readily admitted that she had not
seen Appellant coming before his car struck hers. She did not
know whether he had been speeding, driving erratically, or
failing to obey any other traffic signals before the
automobile is not "manifestly designed, made, or adapted
for the purpose of inflicting death or serious bodily
injury[.]" Tex. Penal Code § 1.07(a)(17)(A). But it
may, "in the manner of its use or intended use [be]
capable of causing death or serious bodily injury." Tex.
Penal Code § 1.07(a)(17)(B). In any felony offense in
which it is "shown" that the defendant "used
or exhibited [a] deadly weapon[, ]" the trial court
"shall" enter a deadly weapon finding in the
judgment. Tex. Code Crim. Proc. art. 42.12, §
3g(a)(2). Such a deadly weapon finding impacts a
convicted felon's eligibility for community supervision,
parole, and mandatory supervision. Id.; Tex.
Gov't Code §§ 508.145(d)(1), 508.149(a)(1),
justify a deadly weapon finding under Section 1.07(a)(17)(B),
the State need not establish that the use or intended use of
an implement actually caused death or serious bodily
injury; only that "the manner" in which it was
either used or intended to be used was
"capable" of causing death or serious
bodily injury. Tucker v. State, 274 S.W.3d 688, 691
(Tex. Crim. App. 2008) (emphasis added). Nor does the plain
language of the provision require that the actor actually
intend death or serious bodily injury. McCain v.
State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000);
Pruett v. State, 510 S.W.3d 925, 928 (Tex. Crim.
App. 2017). Our cases that address the question of when and
how an automobile may constitute a deadly weapon under
Section 1.07(a)(17)(B) appear to be consistent with these
Ex parte McKithan, 838 S.W.2d 560 (Tex. Crim. App.
1992), we observed in the abstract that "[a] motor
vehicle, in the manner of its use or intended use, is clearly
capable of causing death or serious bodily injury and
therefore can be a deadly weapon." Id. at 561.
In Tyra v. State, 897 S.W.2d 796, 797 (Tex. Crim.
App. 1995), the defendant was prosecuted for what we would
now call intoxication manslaughter: accidentally or
mistakenly causing a death by operating a motor vehicle while
intoxicated. He contended that a deadly weapon
finding was not warranted because of a lack of evidence that
he "actually intended to use an object in such a way as
to cause serious bodily injury or death." Id.
We rejected that contention, observing that "[t]he
statute expressly includes in the definition of deadly
weapons those things which are capable of causing death in
the manner of their use, not just those things which are
manifestly designed to cause death or which will cause death
if used as intended." Id. at 799. We reached a
similar conclusion in Walker v. State, 897 S.W.2d
812, 814 (Tex. Crim. App. 1995), holding that "no intent
to use the automobile as a weapon need be shown" in a
case of involuntary manslaughter. Of course, the motor
vehicles in both Tyra and Walker were
obviously capable of causing death-because they
Mann v. State, 58 S.W.3d 132 (Tex. Crim. App. 2001),
we confronted the question of whether an automobile may be
found to constitute a deadly weapon in a felony DWI case in
which nobody was injured but the defendant's car
"nearly hit another vehicle head-on and . . . a
collision was avoided only because the other driver took
evasive action." Id. at 132. We adopted the
lower court's opinion as our own, which had held the
evidence sufficient to support a deadly weapon finding in the
absence of any evidence that either death or serious bodily
injury had actually occurred. Id. The court of
appeals had observed, without attribution, that, "[t]o
sustain a deadly weapon finding requires evidence that others
were endangered, and not merely a hypothetical potential for
danger if others had been present." Mann v.
State, 13 S.W.3d 89, 92 (Tex. App.-Austin 2000). Because
near-certain death or serious bodily injury was narrowly
averted only because of the other driver's evasive
action, we concluded (by adopting the lower court's
opinion) that the near-collision sufficed to establish more
than a merely hypothetical danger of death or serious bodily
injury to another.
up Mann's actual-danger requirement in earnest
in Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim.
App. 2003), and Drichas v. State, 175 S.W.3d 795,
798 (Tex. Crim. App. 2005). Cates involved a
prosecution for failing to stop and render aid after an
accident. The defendant's truck struck a pedestrian on a
rain-slicked curve in the road on a street in Houston. 102
S.W.3d at 736. We focused on the manner of the
defendant's driving after the accident, since
the "relevant time period" for determining whether
he had used a deadly weapon in the course of committing the
offense of failure to stop and render aid was "the time
period after [the pedestrian] was hit." Id. at
738.We held that the evidence did not support a finding that
the car in which the defendant left the scene was a deadly
weapon, since there was no indication he was speeding, the
truck obeyed a traffic light, it never left the roadway, and
there was no other traffic on the road. Id. On these
facts, we perceived no evidence of actual endangerment in the
manner in which the defendant drove during the relevant
period of time-after the pedestrian was struck. Id.
Drichas, the defendant was prosecuted for evading
detention in a motor vehicle, a felony. 175 S.W.3d at 796.
This time we found ample evidence to support a deadly weapon
finding in that, in the "early morning hours" of
the chase, the defendant "disregarded traffic signs and
signals, drove erratically, wove between lanes and within
lanes, turned abruptly into a construction zone, knocking
down barricades as he did so, and drove on the wrong side of
the highway." Id. at 797. There was at least
"'some' traffic . . . present on the road during
the chase." Id. We concluded that "the
danger was real, . . . particularly where [the defendant]
drove on the wrong side of the highway." Id. at
798. And we reiterated that "[s]pecific intent to use a
motor vehicle as a deadly weapon is not required."
Id. (citing McCain, 22 S.W.3d at 503).
v. State, 280 S.W.3d 250 (Tex. Crim. App. 2009), and
Brister v. State, 449 S.W.3d 490 (Tex. Crim. App.
2014), each involved a prosecution for felony DWI. In
Sierra, the defendant T-boned another car that was
pulling out of an apartment complex onto a four-lane roadway.
280 S.W.3d at 251. We observed that past cases had divided
the automobile-as-a-deadly-weapon analysis "into two
parts: first, we evaluate the manner in which the defendant
used the motor vehicle during the felony; and second, we
consider whether, during the felony, the motor vehicle was
capable of causing death or serious bodily injury."
Id. at 255.In evaluating the manner of use, we said,
we have asked "whether a defendant's driving was
reckless or dangerous during the commission of a
felony." Id. We concluded that there was
evidence of reckless or dangerous driving in that the
defendant had been speeding, and had failed to apply his
breaks or otherwise ...