            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0560-18

                          DONALD COUTHREN, Appellant

                                             v.

                                THE STATE OF TEXAS


        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
             FROM THE THIRTEENTH COURT OF APPEALS
                         BRAZOS COUNTY

      R ICHARDSON, J., delivered the opinion of the Court in which N EWELL, K EEL,
W ALKER, and S LAUGHTER, JJ., joined. K ELLER, P.J., filed a dissenting opinion in which
K EASLER, H ERVEY, and Y EARY, JJ., joined.

                                        OPINION

       Appellant was convicted by a jury of the felony offense of driving while intoxicated.

The jury also found that, during the commission of the offense, Appellant used or exhibited

a deadly weapon: a motor vehicle. The court of appeals affirmed the jury’s deadly weapon
                                                                                  Donald Couthren — 2

finding. Appellant claims the court of appeals erred in upholding the deadly weapon finding

absent evidence that he operated his vehicle in a reckless or dangerous manner. We agree.

                                          BACKGROUND

        Around 2:00 a.m. on June 16, 2012, Appellant was driving on the frontage road for

Highway 6 near Tabor Road, just outside of Bryan, Texas, when Frank Elbrich stepped in

front of his vehicle. Elbrich had been walking on the right side of Tabor Road after leaving

a bar nearby.1 Appellant’s vehicle collided with Elbrich, and Elbrich’s head hit the passenger

side windshield. Appellant stopped, got out of his vehicle, saw that Elbrich was bloody and

unconscious, and put Elbrich in his vehicle to take him to the hospital. Instead of going

directly to the hospital, however, Appellant drove to a house located near downtown Bryan

to exchange vehicles with his girlfriend.

        While at this house, Appellant was involved in an altercation, and the police were

called. According to officers, Appellant smelled of alcohol, had slurred speech, his eyes were

glassy and bloodshot, and he was swaying as he moved. Officers also noticed Elbrich, who

was bloody and incoherent, in the passenger seat of Appellant’s vehicle and that the

windshield of Appellant’s vehicle was shattered. Appellant told officers that he had struck


        1
           At trial, Elbrich testified that on the night of the collision, he had been drinking at a bar on
Tabor Road until it closed. Elbrich had not driven to the bar because he had planned on drinking and
already had two prior convictions for driving while intoxicated. Elbrich testified that after the bar
closed, and he was asked to leave the premises, he began walking on the right side of Tabor Road. The
last thing he remembers from the night of the collision was seeing the overpass of Highway 6 where
it crosses over Tabor Road. Elbrich woke up in the hospital the next day with six broken ribs, a leg
broken in two places, a possible concussion, and a possible neck injury.
                                                                           Donald Couthren — 3

Elbrich when Elbrich stepped in front of his vehicle. Appellant initially told officers that he

had not had anything to drink that night, but later admitted to consuming two “Four Loko”

alcoholic beverages. At trial, Appellant testified that he drank the Four Loko beverages

between 2:00 p.m. and 5:00 p.m. the previous day. Appellant refused to perform field

sobriety tests or to submit to a blood draw. Officers then arrested Appellant for driving while

intoxicated.

       Appellant was indicted and tried for felony driving while intoxicated. The State sought

a deadly weapon finding. The jury found Appellant guilty of driving while intoxicated, and

further found that Appellant used or exhibited a deadly weapon, a motor vehicle, during the

commission of the offense. The jury assessed Appellant’s punishment at six years

imprisonment.

       On appeal, Appellant argued that there was insufficient evidence to support the jury’s

deadly weapon finding. The Thirteenth Court of Appeals disagreed.2 The court of appeals

used a two-step approach to assess whether the evidence was sufficient: first, the court

evaluated the manner in which Appellant used his vehicle during the felony; and second, the

court considered whether, during the felony, the vehicle was capable of causing death or

serious bodily injury. Only the first step of this approach, the “manner of use” evaluation, is

at issue before this Court.



       2
         Pursuant to a docket-equalization order issued by the Supreme Court of Texas, Appellant’s
direct appeal was transferred from the Tenth Court of Appeals to the Thirteenth Court of Appeals.
                                                                              Donald Couthren — 4

          In reviewing the manner in which Appellant used his vehicle, the court of appeals

stated:

          [Appellant] was driving after consuming two Four Loko beverages, which
          were determined to have a greater alcohol content than a twelve ounce can of
          beer. Although the speed in which [Appellant] was driving is unknown, he
          testified that he was traveling around thirty miles per hour on a lightly traveled
          highway access road. We do not know the manner in which [Appellant] was
          driving seconds before hitting Elbrich, if [Appellant] applied his brakes prior
          to the accident, or for certain, if there were other cars on the road. However,
          the record shows [Appellant] had been drinking by his own admission and the
          testimony of the two officers. [Appellant] was unable to avoid striking Elbrich
          at a decent rate of speed, since Elbrich’s head broke the windshield upon
          impact.3

The court of appeals concluded that a rational fact-finder could infer from these facts that

Appellant used his vehicle in a manner that was capable of causing death or serious bodily

injury.4

          Appellant takes issue with the above “manner of use” analysis. Appellant claims the

court of appeals relied solely on the occurrence of a collision and Appellant’s consumption

of alcohol to uphold the jury’s deadly weapon finding. Appellant argues that there must be

evidence of dangerous or reckless operation to support a finding that a vehicle was used as

a deadly weapon. We granted review to address this question.5


          3
         Couthren v. State, No. 13-16-00543-CR, 2018 WL 2057244, at *5 (Tex. App.—Corpus
Christi May 3, 2018) (mem. op., not designated for publication).
          4
              Id .
          5
          We granted review on the following ground: “The opinion of the court of appeals is in
conflict with opinions of this Court holding there must be evidence of dangerous or reckless operation
of a vehicle to support a finding it was used as a deadly weapon and the occurrence of a collision or
                                                                                Donald Couthren — 5

                                       LEGAL STANDARD

        Section 49.04 of the Texas Penal Code prohibits a person from operating a motor

vehicle in a public place while in a state of intoxication.6 If the State can prove a defendant

has been previously convicted two times of an offense related to operating a motor vehicle

while intoxicated, the driving while intoxicated offense becomes a third-degree felony.7 “In

any felony offense in which it is ‘shown’ that the defendant ‘used or exhibited [a] deadly

weapon[,]’ the trial court ‘shall’ enter a deadly weapon finding in the judgment.” 8 Thus,

Texas law authorizes a deadly weapon finding in felony driving while intoxicated cases.9

        When assessing the sufficiency of the evidence, we review the record to determine

whether, after viewing the evidence in the light most favorable to the verdict, any rational

trier of fact could have found beyond a reasonable doubt that Appellant’s vehicle was used




consumption of alcohol do not establish those elements.”
       6
           T EX. P ENAL C ODE § 49.04(a).
       7
         T EX. P ENAL C ODE § 49.09(b)(2); Gibson v. State, 995 S.W.2d 693, 695-96 (Tex. Crim. App.
1999). Appellant pled true to two prior DWI offenses, which were used to enhance the DWI
underlying this petition to a third-degree felony.
       8
         Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017) (citing T EX. C ODE C RIM. P ROC.
art. 42.12, § 3g(a)(2)). Appellant was tried in 2016, before the re-codification of Texas Code of
Criminal Procedure Article 42.12 as the current Chapter 42A. See Acts 2015, 84th Leg., ch. 770, p.
2321, eff. Jan. 1, 2017. The 2017 re-codification repealed Article 42.12, but the legislature expressly
declared that no substantive change in the law was intended. Id., §§ 3.01, 4.01, p. 2395; see also T EX.
C ODE C RIM. P ROC. art. 42A.054(b)-(c).
       9
        Sierra v. State, 280 S.W.3d 250, 254 (Tex. Crim. App. 2009) (citing Mann v. State, 58
S.W.3d 132, 132 (Tex. Crim. App. 2001)).
                                                                                Donald Couthren — 6

or exhibited as a deadly weapon.10 By statute, a motor vehicle is not a deadly weapon per se,

but can be found to be a deadly weapon if it is used in a manner that is capable of causing

death or serious bodily injury.11 This Court has expressly rejected the argument that all felony

driving while intoxicated cases warrant an automatic or per se deadly weapon finding.12

Rather, this Court has recognized that a deadly weapon finding in a driving while intoxicated

case is “dependent upon specific testimony in the record about the manner of use.” 13 When

assessing a defendant’s manner of driving, we examine whether a defendant’s driving was

reckless or dangerous.14 This Court has also held that evidence of the driver’s intoxication

and the fact of a collision alone would not support a deadly weapon finding absent evidence




       10
         Brister v. State, 449 S.W.3d 490, 493 (Tex. Crim. App. 2014) (citing Cates v. State, 102
S.W.3d 735, 738 (Tex. Crim. App. 2003)); see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct 2781,
61 L.Ed.2d 560 (1979).
       11
            See T EX. P ENAL C ODE § 1.07(a)(17)(B) (emphasis added).
       12
           Brister, 449 S.W.3d at 495. In Brister, the State advocated for a deadly weapon finding in
all felony DWI cases. Id. This Court was not persuaded by “such an across-the-board holding,” and
our position does not change today. Id. It is within the purview of the legislature to determine what is
a deadly weapon per se. See T EX. P ENAL C ODE § 1.07(a)(17)(A) (legislature’s codification of a firearm
as a deadly weapon). Therefore, argument that this rule should be changed to categorize motor vehicles
as deadly weapons in all felony DWI cases should be directed to the legislature, not this Court.
       13
           Brister, 449 S.W.3d at 494; Pruett v. State, 510 S.W.3d 925, 928 (Tex. Crim. App. 2017)
(recognizing that this Court’s jurisprudence in deadly weapon cases related to motor vehicles in DWI
cases involve “fact intensive inquiries into the manner in which an intoxicated driver uses a vehicle,
and the sustainability of a deadly-weapon finding often depends upon officers’ testimony about the
variabilities of traffic patterns and the impulses of drunk drivers”).
       14
         Sierra, 280 S.W.3d at 255 (citing Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App.
2005); Tyra v. State, 897 S.W.2d 796, 799 (Tex. Crim. App. 1995); Cates, 102 S.W.3d at 738-39).
                                                                               Donald Couthren — 7

that the vehicle was driven in a deadly manner during the commission of the offense.15 To

support a deadly weapon finding, there must be evidence that the manner of driving was

capable of causing death or serious bodily injury apart from the fact of a collision and the

defendant’s intoxication.16

                                            ANALYSIS

       There is very little evidence about the manner in which Appellant used his motor

vehicle during the commission of the offense of driving while intoxicated. As acknowledged

by the court of appeals, “[w]e do not know the manner in which [Appellant] was driving

seconds before hitting Elbrich, if [Appellant] applied his brakes prior to the accident, or for

certain, if there were other cars on the road.”17 Our independent review of the record provides

little additional insight into the manner in which Appellant operated his motor vehicle. The

relevant record evidence is as follows:


       15
           Cates, 102 S.W.3d at 738-39 (holding that evidence of a fatal collision, while relevant
circumstantial evidence, was insufficient to support a deadly weapon finding absent evidence that the
potentially intoxicated defendant used his vehicle in a deadly manner during the offense of failure to
stop and render aid); see Moore, 520 S.W.3d at 912 (refuting the court of appeals’ belief that the only
evidence of how the defendant was driving was the accident itself by pointing to evidence of
intoxication, speed, and failure to avoid a collision).
       16
           See Brister, 449 S.W.3d at 495; Cates,102 S.W.3d at 739; Sierra, 280 S.W.3d at 256;
Erikson v. State, No. 03-13-00241-CR, 2014 WL 4179426, at *2 (Tex. App.—Austin Aug. 21, 2014,
no pet.) (not designated for publication) (holding that the intoxicated appellant operated his vehicle
in a reckless or dangerous manner when he took his eyes off the road to look at his cell phone and
collided with another vehicle) (emphasis added); Pena v. State, No. 07-15-00016-CR, 2015 WL
6444831, at *2-3 (Tex. App.—Amarillo Oct. 22, 2015, no pet.) (holding that the intoxicated appellant
operated his motor vehicle in a reckless or dangerous manner when he failed to control his speed, rear-
ended another vehicle, and also ran over a curb) (emphasis added).
       17
            Couthren, 2018 WL 2057244, at * 5.
                                                                           Donald Couthren — 8

•      Appellant’s admission to responding officers that he had consumed two Four Loko
       beverages.

•      Appellant’s testimony that he was driving approximately thirty miles per hour on a
       lightly traveled frontage road when Elbrich stepped in front of his vehicle. Appellant
       testified that he swerved to avoid Elbrich, but was unable to avoid a collision.

•      Officer testimony that Appellant smelled strongly of alcohol, had bloodshot eyes, was
       slurring his speech, was swaying, and exhibited poor decision making in deciding to
       drive Elbrich to a house instead of calling 911 or taking him to a hospital.

•      Officer testimony that, by putting Elbrich in his vehicle and not driving to a hospital
       or somewhere Elbrich could get help, Appellant used his vehicle in a way “that could
       have hurt Mr. Elbrich real bad or even result[ed] in his death.”

•      Officer testimony that Appellant’s windshield was shattered with a spider web of
       broken glass. There was a large indentation in the windshield where it appeared
       Elbrich’s head stuck the vehicle and the hood of the vehicle had minor damage.

•      Officer testimony that it appeared Elbrich had “hit the vehicle pretty hard.”

       The State argues that, based on these facts, Appellant operated his vehicle in a

reckless or dangerous manner during the commission of the offense both (1) before and at

the time he hit Elbrich with his vehicle, and (2) after hitting Elbrich with his vehicle.

             Appellant’s Manner of Driving Before and at the Time of Impact

       The State alleges that Appellant used his vehicle as a deadly weapon before and at the

time of impact because Appellant “fail[ed] to control his vehicle” and “either applied his

brakes too late ... or never applied his brakes at all” to avoid hitting Elbrich. The State argues

these conclusions can be inferred from the underlying facts. Reasonable inferences, however,
                                                                                 Donald Couthren — 9

must be supported by the evidence presented at trial.18 Therefore, review of factual scenarios

that have supported an inference that a defendant either failed to maintain control of his

vehicle or failed to apply his brakes to avoid a collision is warranted.

        In Sierra v. State, there was no direct eye-witness testimony that the defendant was

driving his vehicle in a reckless or dangerous manner.19 However, due to a thorough on-scene

investigation, an officer was able to estimate that the defendant was traveling between

highway and public roadway speeds at the time of impact and opined that a normal,

undistracted driver in the defendant’s position would have been able to stop and avoid the

collision.20 This 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.21

        In Moore v. State, there was no testimony about the manner in which the defendant

was driving before the collision, but the evidence showed that the defendant rear-ended a

vehicle at a stoplight, causing that vehicle to rear-end and push the vehicle in front of it into


        18
           Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citations omitted) (“The jury
is the sole judge of credibility and weight to be attached to the testimony of witnesses, and juries my
draw multiple reasonable inferences from the facts so long at each is supported by the evidence
presented at trial. The jury is not, however, allowed to draw conclusions based on speculation.”).
        19
             Sierra, 280 S.W.3d at 252.
       20
           Id. at 252, 256. In Sierra, the officer opined that the defendant could have avoided the
collision based on the defendant’s account that he was 247 feet away from the other vehicle when he
first saw it. Id. at 256. Based on this account, the officer testified that a normal, undistracted person,
who was driving the thirty-five mile-per-hour speed limit, would have stopped seventy-one feet before
the other vehicle. Id. Therefore, this Court concluded, the defendant could have avoided the collision,
but failed to do so, even though he had ample opportunity to stop before hitting the car. Id.
        21
             Id. at 256.
                                                                        Donald Couthren — 10

an intersection.22 This Court stated that the manner of driving as reckless or dangerous could

be inferred from more than the “unadorned fact” that the defendant rear-ended another

vehicle.23 Factors that led to this Court’s holding that the defendant drove his vehicle in a

reckless or dangerous manner included: (1) the defendant’s intoxication; (2) evidence that

the defendant was “going fast enough” when approaching a red light to cause a chain

reaction of collisions; and (3) evidence that the defendant “evidently either failed to apply

his brakes altogether, or applied them too late to avoid a substantial impact[.]”24 This Court

concluded that a rational fact-finder could infer from these circumstances that the defendant

was using his vehicle in a manner that was capable of causing death or serious bodily

injury.25

       In this case, the only direct evidence of Appellant’s manner of driving before and at

the time of impact was Appellant’s testimony that he was driving approximately thirty miles

per hour on a lightly traveled frontage road and swerved to avoid Elbrich. Given Elbrich’s

inebriated state, there were no other witnesses to the offense. Additionally, officers did not

go to the scene of the collision. In fact, based on our review of the record, the exact location




       22
            Moore, 520 S.W.3d at 907-08.
       23
            Id. at 912.
       24
            Id. at 912-13.
       25
            Id. at 913.
                                                                                Donald Couthren — 11

of the collision was never determined.26 Officers did not attempt to locate evidence of brake

marks, skid marks, road damage, or any other surrounding circumstance that could have

demonstrated the manner in which Appellant was operating his vehicle. Not even the speed

limit of the roadway where the collision allegedly occurred was introduced into evidence.

Although an officer testified that it appeared Elbrich had “hit the vehicle pretty hard,” this

testimony does not support an inference that Appellant was speeding at the time of the

collision or was otherwise operating his vehicle in a reckless or dangerous manner. There is

no evidence that Appellant saw Elbrich and could have avoided the collision by braking

earlier or by braking at all—the prosecutor even suggested this when, in reference to

Appellant’s inability to avoid the collision, he stated, “it could mean it was an accident that

was unavoidable.”

        While a jury may infer reckless or dangerous driving from the evidence, such an

inference based on these bare facts goes too far. This Court has stated that the determination

of whether a vehicle was used as a deadly weapon in a driving while intoxicated case

requires a “fact intensive inquir[y]” into the manner in which an intoxicated driver used his




        26
           State’s Exhibit 1 is a map showing the intersection of Highway 6 and Tabor Road. It appears
that at trial, this map was marked with a yellow “X” to designate the location of the collision.
However, there was conflicting testimony about the collision’s actual location. One officer testified
that he “believed” the accident to have happened at a “little bend” in the 1900 block of the northbound
frontage road. Another officer testified that Appellant told her on the night of the collision that he hit
Elbrich near Tabor Road and North Earl Rudder Freeway. Appellant, however, testified that he was
heading south on the Highway 6 frontage road when the collision occurred.
                                                                          Donald Couthren — 12

vehicle.27 The facts in Sierra and Moore supported an inference that the defendant was

operating the vehicle in a reckless or dangerous manner. The facts here do not.

                             Appellant’s Manner of Driving After Impact

       The State also alleges that after the collision, Appellant operated his vehicle in a

reckless and dangerous manner by preventing Elbrich from getting needed medical attention

and by placing him in danger of serious bodily injury or death. The State supports this

argument by analogizing Appellant’s case to Hill v. State.28 In Hill, this Court found that

restraints, including chains, belts, and locks, were used as deadly weapons in the commission

of the offense of injury to a child because the restraints were used in a manner so as to cause

serious bodily injury by preventing the child from obtaining food.29 This analogy lacks merit.

       In the past, this Court has relied on evidence that a defendant’s driving was reckless

or dangerous before concluding that a vehicle was used in a manner capable of causing death

or serious bodily injury.30 Reckless or dangerous driving has been demonstrated by speeding,

disregarding traffic signals, failing to maintain control of the vehicle, fishtailing, causing

property damage with the vehicle, driving on the wrong side of the road, almost colliding




       27
            Pruett, 510 S.W.3d at 928.
       28
            913 S.W.2d 581 (Tex. Crim. App. 1996).
       29
            Id. at 582-84.
       30
            Sierra, 280 S.W.3d at 255.
                                                                                Donald Couthren — 13

with another vehicle, and failing to yield to traffic.31 After the collision, there is no evidence

that Appellant operated his vehicle in a manner that this Court has recognized as reckless or

dangerous.32 Additionally, it is not reasonable to infer reckless or dangerous driving from an

officer’s agreement with the State that, by not taking Elbrich directly to get help, Appellant

used his vehicle in a way “that could have hurt Mr. Elbrich real bad or even result[ed] in his

death.” “[P]revent[ing] Elbrich from receiving needed medical attention” is not related to the

manner in which Appellant operated his vehicle. While Appellant’s decision to not take


        31
           See Tyra, 897 S.W.2d at 798 (upholding a deadly weapon finding where evidence showed
the defendant was “too drunk to control his vehicle”); Mann, 58 S.W.2d at 132 (holding the
defendant’s vehicle was a deadly weapon when the defendant drove through a downtown area while
intoxicated, nearly hit another vehicle head-on, and a collision was avoided only because the other
driver took evasive action); Drichas, 175 S.W.3d at 798 (reversing and remanding the court of
appeals’ decision to delete a deadly weapon finding when the record established that the defendant
recklessly pulled out of a parking lot, failed to yield to oncoming traffic, fishtailed while driving at a
high rate of speed, drove on the wrong side of the road, disregarded traffic signals, drove erratically,
and led officers on a fifteen-mile high-speed chase before abruptly turning into a construction zone,
knocking down barricades as he went); Sierra, 280 S.W.3d at 256 (holding that the evidence was
sufficient for a deadly weapon finding when a normal, undistracted driver in the defendant’s position
would have stopped before hitting the other vehicle and the defendant was estimated to be driving
between public roadway and highway speeds at the time of impact, leading to an inference that the
defendant was speeding and failed to maintain control of his vehicle); Moore, 520 S.W.3d at 912-13
(reversing the court of appeals’ opinion that deleted the jury’s deadly weapon finding where the
defendant was driving fast enough, when approaching a red light, to cause a chain reaction of collisions
and the defendant evidentially failed to apply his brakes altogether, or applied them too late, to avoid
a substantial impact).
        32
           We would like to note that Appellant did not operate his vehicle in a reckless or dangerous
manner simply by driving with a damaged windshield. From our independent review of the record, an
officer testified that it would be “somewhat reckless” and was “not the best idea” to drive a vehicle
with the right half of the windshield shattered. However, this officer also testified that the driver-side
windshield was “pretty clear” and a photo of Appellant’s vehicle shows very little damage to the
driver-side windshield. While it may not be the “best idea” to drive with a shattered windshield, absent
evidence that this circumstance caused Appellant to drive recklessly or dangerously, we cannot
conclude that simply because Appellant was driving with a shattered windshield, he was operating his
vehicle in a manner that was capable of causing death or serious bodily injury.
                                                                           Donald Couthren — 14

Elbrich directly to the hospital may have been reckless, this does not demonstrate that

Appellant operated his vehicle in a manner that this Court has recognized as reckless or

dangerous.

                                          CONCLUSION

       In this case, we lack “specific testimony in the record about the manner of use” 33 and

the available evidence does not support a conclusion that Appellant was operating his vehicle

in a reckless or dangerous manner. While we must defer to the jury’s drawing of reasonable

inferences that are supported by the facts,34 here, there are no facts to support an inference

that Appellant was operating his vehicle in a manner that was capable of causing death or

serious bodily injury. The court of appeals erred in upholding the deadly weapon finding

absent evidence that Appellant operated his vehicle in a reckless or dangerous manner.

Therefore, we hold the evidence insufficient to establish beyond a reasonable doubt that

Appellant’s vehicle was used or exhibited as a deadly weapon during the offense of driving

while intoxicated. We reverse only that part of the court of appeals’ judgment which affirmed

the deadly weapon finding and reform the trial court’s judgment to delete it.

DELIVERED: April 17, 2019

PUBLISH




       33
            Brister, 449 S.W.3d at 494.
       34
            Zuniga v. State, 551 S.W.3d 729, 738 (Tex. Crim. App. 2018).
