Opinion
No. 14-06-00528-CR
Opinion filed August 23, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 185th District Court Harris County, Texas, Trial Court Cause No. 1064598.
Panel consists of Justices YATES, EDELMAN, and SEYMORE. (YATES, J., concurring without opinion).
OPINION
Antonio Sierra appeals a conviction for third degree felony driving while intoxicated ("DWI") with a deadly weapon finding on the grounds that the evidence is legally and factually insufficient to sustain the DWI conviction and the deadly weapon finding. We affirm as reformed.
A jury found appellant guilty and assessed punishment at 10 years confinement.
Intoxication
Appellant's first issue contends that the evidence is legally and factually insufficient to prove that he was intoxicated at the time he was operating his vehicle because: (1) there was no evidence to extrapolate from the times of the field sobriety test, breath test, or blood test back to the time of operating the vehicle; (2) the driving facts were not indicative of intoxication; (3) his behavior after the accident could be expected of someone involved in a serious accident; and (4) there were no standard police observations of appellant being in an intoxicated condition at the scene, such as slurred speech, staggering, holding on to a fixed object for support, fumbling for proof of identification or insurance, dozing off during interrogation, or the like. However, contrary to appellant's contentions, intoxilyzer tests are probative of intoxication without retrograde extrapolation evidence. See State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). They may thus be considered along with other evidence to determine whether appellant was intoxicated at the time he was driving. Stewart v. State, 129 S.W.3d 93, 97 (Tex.Crim.App. 2004). In this case, that evidence shows that: (1) police officers at the accident scene observed that appellant's breath had a strong odor of alcohol, and appellant admitted to them that he had been drinking; and (2) appellant performed some of the field sobriety tests poorly and did not follow directions. In light of the further evidence that appellant's blood alcohol concentration after the accident was 0.122 and 0.125 according to the breath tests and 0.12 according to the blood test, well above the legal limit of .08, the evidence is legally sufficient to prove that appellant was intoxicated at the time he was driving his vehicle. To whatever extent appellant's behavior after the accident could be expected of someone involved in a serious accident, that fact does not controvert the foregoing evidence of intoxication or otherwise render the evidence factually insufficient to support the jury's verdict. Therefore, appellant's first issue is overruled.Deadly Weapon Finding
Appellant's second issue asserts that the evidence is legally and factually insufficient to sustain the finding that appellant used or exhibited a deadly weapon, an automobile, during the commission of the DWI offense because: (1) he had the right of way; (2) he was driving at a moderate rate of speed; (3) both drivers' vision was obscured by a fence and bushes; (4) prior to the collision, appellant applied his brakes and turned to the left to avoid the collision; and (5) there is no evidence that his intoxication caused or contributed to the accident. To support an affirmative deadly weapon finding, the evidence must prove that the defendant used or exhibited the deadly weapon during the commission of a felony offense or during immediate flight therefrom. Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon 2006). A deadly weapon is anything that in the manner of its actual or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2007). Thus, a motor vehicle may be a deadly weapon even without specific intent to use it as such. Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). However, a finding that a vehicle is a deadly weapon must be supported by evidence showing that the vehicle was actually driven in a deadly manner during the offense. See Olivas v. State, 202 S.W.3d 137, 146 (Tex.Crim.App. 2006); Drichas, 175 S.W.3d at 798, 799; Cates v. State, 102 S.W.3d 735, 738-39 (Tex.Crim.App. 2003). In this case, appellant's vehicle struck another vehicle broadside as the second vehicle was crossing the lane in which appellant was traveling to make a left turn. The only evidence in the record reflecting the manner in which appellant was driving indicates that: (1) his speed was below the 35 mile per hour speed limit; (2) there were no skid marks leading up to the accident location; and (3) based on the location that appellant said he first perceived the danger, appellant should have been able to stop before the collision occurred. However, there is no evidence in the record that appellant was driving in a reckless, threatening, careless, or dangerous manner, that he had violated any traffic laws, or that he was otherwise at fault for the collision. Under these circumstances, the evidence is legally insufficient to prove that appellant's vehicle was a deadly weapon, and appellant's second issue is sustained. See Cates, 102 S.W.3d at 739.Disposition
The foregoing conclusion dictates that the trial court's entry of a deadly weapon finding be reversed, the deadly weapon finding be deleted from the trial court's judgment, and the conviction for DWI, which is not affected by the deadly weapon finding, be affirmed as so reformed. Because the deadly weapon finding does not affect the determination of guilt or the length of sentence, the appropriate disposition is generally not to remand the case for a new hearing on punishment. Unanswered, however, is whether in the circumstances of a particular case, such as this, a remand for a new punishment determination could either be necessary or required by the interests of justice. See Tex. R. App. P. 43.2, 43.3. An analogous situation was addressed in Tucker, a federal case in which the trial court judge had imposed the maximum punishment for robbery after considering two previous convictions that were later determined to be constitutionally invalid (due to lack of counsel). See U.S. v. Tucker, 404 U.S. 443, 444-45 (1972). Even though the invalid convictions had not been used for enhancement or otherwise affected the available range of punishment, the appeals court held that there was a reasonable probability that the defective prior convictions may have led the trial court to impose a heavier sentence that it otherwise would have imposed. Id. at 445-46. Accordingly, the appeals court remanded the case to the District Court for resentencing without consideration of the invalid convictions. Id. at 446. In appealing that decision to the United States Supreme Court, the government argued that: (1) in imposing the sentence, the relevant inquiry is not whether the defendant had been formally convicted of past crimes, but whether he had in fact engaged in criminal or antisocial conduct; and (2) in light of the other detrimental sentencing information presented, it was unlikely that a different sentence would have been imposed even if the trial judge had known that two of the defendant's previous convictions were invalid. Id. Acknowledging that the information that may be considered by a trial judge in sentencing is largely unlimited, and that a sentence imposed within statutory limits is generally beyond review, the Court nevertheless affirmed the remand for reconsideration of sentencing, reasoning in part:[T]hese general propositions do not decide the case before us. For we deal here, not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude. As in Townsend v. Burke, 334 U.S. 736, . . . this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. . . .
[T]he real question here is not whether the results of the [prior] proceedings might have been different if the respondent had had counsel, but whether the sentence in the [present] case might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained.
We agree with the Court of Appeals that the answer to this question must be `yes.' For if the trial judge . . . had been aware of the constitutional informity [sic] of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding. Instead of confronting a defendant who had been legally convicted of three previous felonies, the judge would then have been dealing with a man who beginning at age 17, had been unconstitutionally imprisoned for more than ten years, including five and one-half years on a chain gang.Id. at 447-48. Although the circumstances of this case are less compelling than those in Tucker, appellant nevertheless received the maximum sentence of ten years in connection with a vehicle collision that the evidence did not show him to be either at fault in causing or to otherwise be driving in a dangerous manner. In addition, the court's charge on the deadly weapon finding did not instruct the jury that driving in a dangerous manner was required in order to find that the vehicle was a deadly weapon. The jury's confusion on this aspect was apparent during its deliberation on the special issue when it sent out a note asking, AHow can one find a person guilty of DWI third offense and not find them guilty of using a deadly [sic] namely a "motor vehicle"? The court's answer was simply, "Please refer to the court's charge." After making the deadly weapon finding, the jury was given the court's charge on punishment, which did not refer to the deadly weapon finding, but also did not clarify that the deadly weapon finding was not part of the offense for which punishment was being decided. Nor did the charge on the special issue or on punishment indicate the actual purpose or effect of the deadly weapon finding. This ambiguity could have been compounded by the prosecutor's misstatement, in urging the jury to impose the maximum punishment, that "it's an aggravated offense and we made sure of that. That's why that deadly weapon paragraph's in there. Not every DWI has that, but for this man, it's in there." Therefore, rather than merely being misinformed about the validity of prior convictions or other such collateral punishment matters, as was the sentencing judge in Tucker, the jury in this case was misinformed concerning the very nature of the offense appellant committed in this case, and in a way that portrayed the offense in a more morally culpable manner; and the jury might well not have understood that it was not imposing punishment for the deadly weapon finding. Regardless of the outcome, the punishment determination would thus have been considerably more fair if it had not been made in the context of the improper deadly weapon finding. However, the evidence at the punishment hearing also showed that: (1) this was appellant's fourth overall DWI conviction and his second felony DWI conviction; (2) appellant had been convicted of failure to stop and give information in connection with one of those prior DWIs; (3) appellant had also been previously convicted of failure to identify oneself to a police officer; and (4) appellant had a history of drinking problems that had neither been corrected after the previous DWI convictions nor deterred him from continuing to drive after drinking. Under these circumstances, unlike those in Tucker, and particularly in light of the relatively narrow range of punishment in this case, there is no basis to conclude that the sentencing considerations would have been dramatically different had the deadly weapon finding not been submitted to, and made by, the jury. Accordingly, we order the deadly weapon finding deleted from the trial court's judgment and affirm the judgment as so reformed.