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Moore v. State

Court of Criminal Appeals of Texas

June 7, 2017



          Yeary, 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 participate.


          YEARY, J.

         While 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 weapon finding.

         THE FACTS

         In an 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.[1] 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, Shannon Koen.

         Koen 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.[2] 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 accident.

         THE LAW

         An 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).[3] 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), & 508.151(a)(2).

         To 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 general principles.

         In 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.[4] 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 did.

         In 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.

         We took 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.

         In 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).

         Sierra 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 ...

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