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Couthren v. State

Court of Criminal Appeals of Texas

April 17, 2019

DONALD COUTHREN, Appellant
v.
THE STATE OF TEXAS

          ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS BRAZOS COUNTY

          Richardson, J., delivered the opinion of the Court in which Newell, Keel, Walker, and Slaughter, JJ., joined. Keller, P.J., filed a dissenting opinion in which Keasler, Hervey, and Yeary, JJ., joined.

          OPINION

          RICHARDSON, J.

         Appellant was convicted by a jury of the felony offense of driving while intoxicated. The jury also found that, during the commission of the offense, Appellant used or exhibited a deadly weapon: a motor vehicle. The court of appeals affirmed the jury's deadly weapon finding. Appellant claims the court of appeals erred in upholding the deadly weapon finding absent evidence that he operated his vehicle in a reckless or dangerous manner. We agree.

         BACKGROUND

         Around 2:00 a.m. on June 16, 2012, Appellant was driving on the frontage road for Highway 6 near Tabor Road, just outside of Bryan, Texas, when Frank Elbrich stepped in front of his vehicle. Elbrich had been walking on the right side of Tabor Road after leaving a bar nearby.[1] Appellant's vehicle collided with Elbrich, and Elbrich's head hit the passenger side windshield. Appellant stopped, got out of his vehicle, saw that Elbrich was bloody and unconscious, and put Elbrich in his vehicle to take him to the hospital. Instead of going directly to the hospital, however, Appellant drove to a house located near downtown Bryan to exchange vehicles with his girlfriend.

         While at this house, Appellant was involved in an altercation, and the police were called. According to officers, Appellant smelled of alcohol, had slurred speech, his eyes were glassy and bloodshot, and he was swaying as he moved. Officers also noticed Elbrich, who was bloody and incoherent, in the passenger seat of Appellant's vehicle and that the windshield of Appellant's vehicle was shattered. Appellant told officers that he had struck Elbrich when Elbrich stepped in front of his vehicle. Appellant initially told officers that he had not had anything to drink that night, but later admitted to consuming two "Four Loko" alcoholic beverages. At trial, Appellant testified that he drank the Four Loko beverages between 2:00 p.m. and 5:00 p.m. the previous day. Appellant refused to perform field sobriety tests or to submit to a blood draw. Officers then arrested Appellant for driving while intoxicated.

         Appellant was indicted and tried for felony driving while intoxicated. The State sought a deadly weapon finding. The jury found Appellant guilty of driving while intoxicated, and further found that Appellant used or exhibited a deadly weapon, a motor vehicle, during the commission of the offense. The jury assessed Appellant's punishment at six years imprisonment.

         On appeal, Appellant argued that there was insufficient evidence to support the jury's deadly weapon finding. The Thirteenth Court of Appeals disagreed.[2] The court of appeals used a two-step approach to assess whether the evidence was sufficient: first, the court evaluated the manner in which Appellant used his vehicle during the felony; and second, the court considered whether, during the felony, the vehicle was capable of causing death or serious bodily injury. Only the first step of this approach, the "manner of use" evaluation, is at issue before this Court.

         In reviewing the manner in which Appellant used his vehicle, the court of appeals stated:

[Appellant] was driving after consuming two Four Loko beverages, which were determined to have a greater alcohol content than a twelve ounce can of beer. Although the speed in which [Appellant] was driving is unknown, he testified that he was traveling around thirty miles per hour on a lightly traveled highway access road. We do not know the manner in which [Appellant] was driving seconds before hitting Elbrich, if [Appellant] applied his brakes prior to the accident, or for certain, if there were other cars on the road. However, the record shows [Appellant] had been drinking by his own admission and the testimony of the two officers. [Appellant] was unable to avoid striking Elbrich at a decent rate of speed, since Elbrich's head broke the windshield upon impact.[3]

         The court of appeals concluded that a rational fact-finder could infer from these facts that Appellant used his vehicle in a manner that was capable of causing death or serious bodily injury.[4]

         Appellant takes issue with the above "manner of use" analysis. Appellant claims the court of appeals relied solely on the occurrence of a collision and Appellant's consumption of alcohol to uphold the jury's deadly weapon finding. Appellant argues that there must be evidence of dangerous or reckless operation to support a finding that a vehicle was used as a deadly weapon. We granted review to address this question.[5]

         LEGAL STANDARD

         Section 49.04 of the Texas Penal Code prohibits a person from operating a motor vehicle in a public place while in a state of intoxication.[6] If the State can prove a defendant has been previously convicted two times of an offense related to operating a motor vehicle while intoxicated, the driving while intoxicated offense becomes a third-degree felony.[7] "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."[8] Thus, Texas law authorizes a deadly weapon finding in felony driving while intoxicated cases.[9]

         When assessing the sufficiency of the evidence, we review the record to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that Appellant's vehicle was used or exhibited as a deadly weapon.[10] By statute, a motor vehicle is not a deadly weapon per se, but can be found to be a deadly weapon if it is used in a manner that is capable of causing death or serious bodily injury.[11] This Court has expressly rejected the argument that all felony driving while intoxicated cases warrant an automatic or per se deadly weapon finding.[12]Rather, this Court has recognized that a deadly weapon finding in a driving while intoxicated case is "dependent upon specific testimony in the record about the manner of use."[13] When assessing a defendant's manner of driving, we examine whether a defendant's driving was reckless or dangerous.[14] This Court has also held that evidence of the driver's intoxication and the fact of a collision alone would not support a deadly weapon finding absent evidence that the vehicle was driven in a deadly manner during the commission of the offense.[15] To support a deadly weapon finding, there must be evidence that the manner of driving was capable of causing death or serious bodily injury apart from the fact of a collision and the defendant's intoxication.[16]

         ANALYSIS

         There is very little evidence about the manner in which Appellant used his motor vehicle during the commission of the offense of driving while intoxicated. As acknowledged by the court of appeals, "[w]e do not know the manner in which [Appellant] was driving seconds before hitting Elbrich, if [Appellant] applied his brakes prior to the accident, or for certain, if there were other cars on the road."[17] Our independent review of the record provides little additional insight into the manner in which Appellant operated his motor vehicle. The relevant record evidence is as follows:

• Appellant's admission to responding officers that he had consumed two Four Loko beverages.
• Appellant's testimony that he was driving approximately thirty miles per hour on a lightly traveled frontage road when Elbrich stepped in front of his vehicle. Appellant testified that he swerved to avoid Elbrich, but was unable to avoid a collision.
• Officer testimony that Appellant smelled strongly of alcohol, had bloodshot eyes, was slurring his speech, was swaying, and exhibited poor decision making in deciding to drive Elbrich to a house instead of calling 911 or taking him to a hospital.
• Officer testimony that, by putting Elbrich in his vehicle and not driving to a hospital or somewhere Elbrich could get help, Appellant used his vehicle in a way "that could have hurt Mr. Elbrich real bad or even result[ed] in his death."
• Officer testimony that Appellant's windshield was shattered with a spider web of broken glass. There was a large indentation in the windshield where it appeared Elbrich's head stuck the vehicle and the hood of the vehicle had minor damage.
• Officer testimony that it appeared Elbrich had "hit the vehicle pretty hard."

         The State argues that, based on these facts, Appellant operated his vehicle in a reckless or dangerous manner during the commission of the offense both (1) before and at the time he hit Elbrich with ...


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