*1 132 avoided only because the other driver took MANN, Appellant,
Edwin Harris jury evasive action. The subsequently found guilty and also found that he a deadly weapon, namely used an auto- The STATE of Texas. mobile, during the commission of the of- No. 387-00. appellant’s pun- fense.1 The assessed ishment, prior enhanced two non-DWI Appeals Court of Criminal convictions, felony at imprisonment for fif- ty years. direct appeal, appellant argued,
On
inter
alia, that Texas Code of Criminal Proce
42.12, §
dure
3g(a)(2),
article
not au
did
deadly
thorize a
weapon finding
prosecution for driving while intoxicated.
The Third Court of Appeals rejected ap
OPINION
pellant’s argument and
judg
affirmed the
State,
ment of the trial court. Mann v.
HOLCOMB, J.,
opinion
delivered the
2000).
(Tex.App.
Court,
KELLER, P.J.,
in which
- Austin
granted
ground
in appellant’s
WOMACK, KEASLER,
HERVEY,
petition for discretionary review to deter
mine whether
the Court of
erred.
question presented
The
in this case is
66.3(b).
See Tex.R.App. Proc.
whether Texas law
a deadly
We have
part
reviewed that
of the Court
weapon finding in a prosecution
Appeals’ opinion dealing
with the merits
(DWI),
third offense.
of appellant’s deadly weapon claim and
We hold that it does.
find it to be
adopt
sound. We therefore
A
County grand jury
Williamson
indict-
part
as our own without
appellant,
Mann,
Edwin Harris
for driv-
Makeig
further comment. See
intoxicated,
ing while
third offense. See
(Tex.Crim.App.1992);
S.W.2d 956
49.09(b).
§
The case went
Manning v.
vehicle head-on
and that
collision was
in the judgment of the
provides,
Texas Code of Criminal Procedure article
Texas Penal Code
42.12,
turn,
§ 3g(a)(2), provides
part
"deadly weapon”
in relevant
relevant
make,
may
upon
part,
that a trier of fact
"anything
suffi-
that in the manner of its use
evidence,
finding”
cient
an “affirmative
"that
or intended use is
1.07,
weapon as defined
bodily injury.”
deadly weapon
in Section
find-
during
ing
Penal
eligibility
was used or exhibited
limits a defendant’s
for commu-
during
nity supervision
parole.
commission of
offense or
im-
See Tex.Code
therefrom,
42.12,
flight
3g(a)(2);
mediate
and that the defen-
Crim. Proc. art.
Tex. Gov’t
.145,
dant used or exhibited the
Code
508.149 & 508.151.
*2
COCHRAN,
police
stops to investi-
passing
in
officer who
which
PRICE
JJ., joined. MEYERS, J.,
changes
dissented
gate why
through
car sat
six
the
opinion.
without written
the
light.
intoxicated driver
of the
Or
who,
stopped
stoplight,
at a
is
properly
JOHNSON, J.,
filed a
is
by
fleeing
car
driver
struck
a
whose
COCHRAN,
opinion, in which PRICE and
the intoxi-
the result that
police,
from
with
killed.
passenger
cated
is
While
driver’s
I
in the
I write
judgment only.
concur
indeed
driving an automobile does
consti-
question
to
the
of
separately
application
use,
not
driving
tute
the act of
does
neces-
Tyra
our
in
holding
897 S.W.2d
ca-
sarily
driving in “a manner
constitute
of its
(Tex.Crim.App.1995), outside
causing
bodily
serious
pable of
original
Tyra,
context.
In
we held
injury,” thereby
the
a
making
deadly-weapon finding
for
appropriate
was
deadly weapon.
a
who
convicted what is
defendant
was
of
manslaughter.1
now called intoxication
Tyra
This
with
the circum
case shares
reasonably
“it
clear
We did so because
is
that
was intoxicated and
stance
the
driving
that
an automobile constitutes
That circum
operating a motor vehicle.
that
it
manner
use of it and
in a
stance,
itself,
be
and of
should not
bodily
of
death or serious
the
finding
to
a
use of
enough
authorize
injury
it a
Id.
constitutes
previously
have
deadly weapon.
a
natures,
By
very
at
their
intoxication
finding
not
deadly-weapon
held that a
is
manslaughter
intoxication assault will
allegation
possession
authorized for an
always
finding
authorize a deadly-weapon
firearm;
a
possession
of a
since the
always
there is
death
because
or
offense,
the
the
gravamen
firearm is the
bodily injury.
Tyra effectively
That
possession cannot
used to both to
mere
be
any
cases of
and all
intoxication
the
charge the offense and to enhance
to
manslaughter and intoxication assault
See, e.g.,
punishment.
Narron
deadly-weapon
be enhanced
a
(Tex.Crim.App.1992)
the
finding
statutory
once
elements of the
prohibited weapon); Ex
(possession of
have been
offense
established.
parte Petty, 833 S.W.2d
However,
question any reading
(felon
Crim.App.1992)
possession
of fire
Tyra
our
a
or of
statutes that authorizes
arm);
Tyra,
see also
only, and not intoxication assault or intoxi
cation manslaughter, each case must be
examined on its own facts to if determine
deadly-weapon finding appropriate. is *3 case,
In the instant appellant was con
victed of DWI. See 49.04(a) 49.09(b). & During its case-in-
chief, the testimony state elicited that “[a]s
appellant approached Trinity a curve at Home,
Nursing [he] drove his vehicle in a
straight line and ‘almost hit another vehi
cle head-on. The reason he didn’t was
because the [other] driver took evasive ” action.’ Mann v. 2000). Thus,
(Tex.App under the . -Austin
specific case, facts established this
believe that was authorized to find had “used or exhibited a
deadly weapon.” See Tex. Pen.Code 1.07(a)(17); State, 22 McCain v.
497 (Tex.Crim.App.2000). I therefore con
cur in judgment. parte
Ex Michael Keith
BOYD, Applicant. 74,121.
No.
Court of Criminal