In Couthren v. State, the Texas Court of Criminal Appeals held a person accused of felony driving while intoxicated may only be charged with using a motor vehicle as a deadly weapon if the manner in which the defendant was driving could cause death or serious bodily injury. In this case, even though it involved an auto-pedestrian accident, the Court concluded that there was no evidence that the accident was caused by the defendant’s reckless or dangerous driving.
In Texas, a person arrested for DWI who has two or more prior convictions for DWI will be charged with DWI – Felony Repetition, a third-degree felony.
Deadly Weapon Enhancements
In any felony where it is show that the defendant used or exhibited a deadly weapon, the trial court shall enter a deadly weapon finding in the judgment. A motor vehicle is not a deadly weapon, per se, but can be if it is used in a manner that is capable of causing death or serious bodily injury.
The Background of DWI Accidents
Donald Ray Couthren II was convicted of driving while intoxicated – felony repetition after he got behind the wheel in the early morning hours of June 16, 2012, after drinking two “Four Loko” beverages. Couthren was driving on a frontage road, just outside of Bryan, Texas, when a pedestrian walking home from a nearby bar stepped out in front of his vehicle. The vehicle struck the pedestrian and his head went through the windshield. He suffered six broken ribs, a broken leg and possibly a concussion. Couthren put the unconscious pedestrian in his vehicle and drove to a nearby house where he was subsequently arrested.
Reckless or Dangerous – Basis for Deadly Weapon Finding
A finding that the vehicle was used in a manner that is capable of causing death or serious bodily injury is dependent on whether the defendant’s driving was reckless or dangerous. Reckless or dangerous driving has been demonstrated by speeding, disregarding traffic signs, failing to maintain control of vehicle, fishtailing, causing property damage with the vehicle, driving on the wrong side of the road, almost colliding with another vehicle, and failing to yield to traffic. This is a fact-sensitive inquiry based upon specific testimony and the record of evidence. Furthermore, the fact of a collision and intoxication alone will not support finding of a motor vehicle as a deadly weapon.
Because this analysis is fact-sensitive, the court looked at two cases where the use of a motor vehicle in a DWI case satisfied the deadly weapon component to determine if the threshold was met in this case.
In Sierra v. State, there was no witness testimony regarding the accident, however the police conducted a thorough on-scene investigation and could determine the speed at which the vehicle was going. The Court concluded that, under these facts, a jury could have reasonably found that the defendant was speeding and failed to maintain control of his vehicle.
In Moore v. State, the defendant rear-ended a vehicle causing it slam into another vehicle in a major intersection. In this case there was evidence both that the vehicle was going fast enough to cause this double collision, as well as evidence that the defendant either failed to apply the brakes, or applied them too late to avoid impact. Here, too, the Court found that the defendant was using his vehicle in a manner capable of causing serious injury or death.
Finally, the court, in a footnote, cites Tyra v. State, where the evidence showed that the defendant was too drunk to control the vehicle and the inability to control the vehicle demonstrated recklessness. In all three cases, there existed enough evidence to demonstrate the defendant’s intoxication caused the defendant to not be in control thereby making the vehicle a deadly weapon.
The set of facts in Couthren v. State do not present enough evidence to issue a finding that the motor vehicle was a deadly weapon. On June 16, 2012, around 2:00 a.m. the defendant was driving his vehicle on a frontage road. The defendant admitted to consuming alcohol earlier that afternoon. The victim was walking home on the right side of the road. He was leaving a bar and decided to walk because he had two DWI charges and did not want a third. As the defendant was driving, the victim stepped in front of the vehicle and hit his head on the windshield. The defendant got out of the car to inspect the body, and noticed the victim was bloody and unconscious. There were no other witnesses present or any passing vehicles. The defendant decided to take the victim to the hospital, but in lieu of immediately driving to the hospital, the defendant drove to his house to exchange cars with his girlfriend where he became involved in an altercation. It was at this point the police were called and the defendant was arrested.
The Court of Appeals noted that they were unable to ascertain the manner in which the defendant was driving moments before the victim was hit. The only evidence present in the case was that the defendant admitted to drinking alcohol and further testified that he was driving roughly 30 miles per hour when he struck the victim. The officers testified that he appeared intoxicated, and was slurring his speech and swaying. They noted that the defendant did not drive to the hospital immediately, and that his vehicle’s windshield has a spiderweb of broken glass on the passenger’s side. Finally, they testified that it appeared that the victim was hit pretty hard. The court found this evidence did not meet the threshold of being reckless or dangerous. The only direct evidence was the defendant’s testimony that he was driving 30 miles per hour. The officers did not testify about the speed limit on the road, and did not conduct an investigation of brake marks or skid marks to determine the manner in which the defendant was driving. While the officers did say the victim looked to have been hit hard, it does not demonstrate the inference of speeding like in the Moore case. Thus, the court was unable to determine the motor vehicle was a deadly weapon in this case.
As an ancillary matter, the State also alleged that the defendant’s decision not to take the victim immediately to the hospital and to drive with the windshield broken was evidence of the reckless or dangerous standard. The court quickly dispels this notion by arguing a decision to drive may be reckless but that does not make automatically the vehicle a deadly weapon. Furthermore they noted that while the passenger side of the windshield was cracked, the officers noted the driver’s side appeared to be clear enough for a person to have enough visibility to drive. The court ultimately dispensed with their second argument and found the defendant did not use a deadly weapon in his DWI charge.
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