905 S.W.2d 701 | Tex. App. | 1995
OPINION
Appellant entered a plea of nolo contende-re to the offense of involuntary manslaughter. TexPenal Code Ann. § 19.05(a)(2) (Vernon 1989).
Appellant was intoxicated and did not see the headlights of an oncoming motorcycle when he turned left onto a county road. The motorcycle collided with the fender of his truck, killing the motorcyclist. A grand jury charged appellant by indictment with involuntary manslaughter. Before appellant entered his plea, the State orally notified him that it intended to seek an affirmative finding that he used Ms car as a deadly weapon. The trial court admonished appellant as to the consequences of an affirmative deadly weapon finding,
Appellant alleges the State provided him with inadequate notice of its intent to seek an affirmative finding of a deadly weapon by orally announcing such intent at the plea hearing. Appellant, however, overlooks the written notice provided by the State in the grand jury indictment charging him with involuntary manslaughter. An indictment wMch alleges the defendant caused the death of the victim by causing Ms motor veMcle to collide with the veMcle driven by decedent is adequate notice of the State’s intent to seek such a finding. Ex Parte McKithan, 838 S.W.2d 560, 561 (Tex.Crim.App.1992).
Appellant further contends he could not have used Ms truck as a deadly weapon, because he committed the offense unintentionally, by mistake or accident, while intoxicated. Appellant maintains in order for the trial court to find that he used Ms truck as a deadly weapon, he must have performed some affirmative act, exMbited some intent, or took some positive action to indicate that he knew or should have known that the results of his action would be dangerous or deadly. The Texas Court of Criminal Appeals recently rejected this argument in holding that an affirmative finding that a motor veMcle was used as a deadly weapon is permissible upon a conviction of involuntary manslaughter under Section 19.05(a)(2) of the Texas Penal Code. Tyra v. State, 897 S.W.2d 796 (Tex.Crim.App.1995).
Section 3g(a)(2) of Article 42.12 of the Texas Code of Criminal Procedure dernes adult probation
The judgment of the court below is affirmed.
. The crime for which appellant was convicted was committed before September 1, 1994, the effective date of the revised penal code. See Acts 1993, 73rd Leg., Ch. 900, § 1.18(b). Therefore, all references to the penal code are to the code in effect at the time the crime was committed.
. An affirmative finding of use of a deadly weapon does not increase the sentence a convicted felon must serve, but precludes the trial court from ordering community supervision, and the parole board from releasing the felon until he has served at least one-half the maximum sentence but not less than two years. See Tex.Code Crim.Proc.Ann. art. 42.12, § 3g; art. 42.18, § 8(b)(3) (Vernon Supp.1995).
. The Legislature amended Article 42.12, Section 3 to replace all references to adult probation with community supervision as of September 1, 1993. See Acts June 19, 1993, 73rd Leg., R.S., ch. 900, § 4.04(a), 1993 Tex.Gen.Laws 3743.