Cates v. State

HUDSON, Justice,

dissenting.

Because I believe the State failed to offer any evidence to support the jury’s affirmative finding of the use or exhibition of a deadly weapon, I respectfully dissent.

While a motor vehicle is not a deadly weapon per se, it is well established that a motor vehicle may, by its manner of use, be a deadly weapon. Tyra v. State, 897 S.W.2d 796, 798 (Tex.Crim.App.1995). Examples of such use include: (1) driving a *414vehicle while intoxicated;1 (2) intentionally attempting to run over a pedestrian;2 (3) attempting to throw off the owner of a stolen Porsche, who was clinging to the spoiler, by rapidly accelerating and braking the vehicle;3 (4) intentionally crushing a person’s legs by pinning them between two cars;4 and (5) intentionally attempting to run over a police officer who was trying to subdue the defendant.5 Of course, the mere act of driving always creates the potential for death or serious bodily injury, but it does not automatically render a motor vehicle a deadly weapon. In each of the examples above, the motor vehicle was transformed into a deadly weapon by some specific use that heightened the risk of injury to other persons.

Here, the accident occurred while the victim was standing in a roadway, late at night, just beyond a turn in a dark road. As appellant emerged from the turn, he struck and killed the victim. While tragic, not every fatal traffic accident is a criminal homicide, and the State did not seek to prove that appellant was criminally responsible for the victim’s death. Appellant was prosecuted solely for failing to stop and render aid to the victim.

Thus, if appellant used or exhibited a deadly weapon, the State was obliged to show appellant did so while leaving the scene of the accident. I can find no evidence in the record suggesting appellant drove his vehicle in a reckless manner before or after the accident. Claudia Wong testified that appellant’s vehicle struck the victim, slowed as if to stop, then, after a moment’s hesitation, left the scene. Ms. Wong and her husband turned around and pursued appellant. Although Ms. Wong testified that she was nervous because her husband was driving 85 to 90 miles per hour, there is no evidence that appellant was driving at such speeds. In fact, Ms. Wong testified the “chase” was concluded quickly and they were able to get the vehicle’s license number while appellant was stopped at a traffic signal. Thus, Ms. Wong’s testimony suggests the speed of appellant’s vehicle was less, perhaps significantly less, than the speed of her pursuing vehicle.

Finally, the accident occurred in the early morning hours, and Ms. Wong testified there were no other vehicles on the roadway. The State had the burden of proving beyond a reasonable doubt that appellant used or intended to use his motor vehicle in a manner capable of causing death or serious bodily injury. The standard in reviewing the legal sufficiency of evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Webb v. State, 801 S.W.2d 529, 530 (Tex.Crim.App.1990). Here, the State offered no testimony that appellant was driving recklessly when he left the scene or that his conduct presented an unreasonable danger to others. Without such evidence, the jury could not rationally conclude that appellant used or exhibited a deadly weapon in the commission of the offense. Thus, I would reform *415the judgment to delete the affirmative finding.

. Walker v. State, 872 S.W.2d 34, 36 (Tex.App.—Fort Worth 1994), aff'd, 897 S.W.2d 812 (Tex.Crim.App.1995).

. Green v. State, 831 S.W.2d 89, 93 (Tex.App.—Corpus Christi 1992, no pet.).

.Morgan v. State, 775 S.W.2d 403, 406 (Tex.App.—Houston [14th Dist.] 1989, no pet.).

. Parrish v. State, 647 S.W.2d 8, 11 (Tex.App.—Houston [14th Dist.] 1982, no pet.).

. St. Clair v. State, 26 S.W.3d 89, 95 (Tex.App.—Waco 2000, pet. ref'd).