








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0018-08


ANTONIO SIERRA, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY



 Meyers, J., filed a dissenting opinion in which Holcomb, J., joined.

DISSENTING OPINION


	Appellant was not charged with a crime involving assaultive conduct so I'm
having a hard time figuring out why a deadly weapon finding was included in the
judgment. (1)  The deadly weapon statute was clearly intended to be used in cases where the
defendant commits some sort of assault.  Appellant was not (and could not have been)
charged with intoxication assault in this case because the serious bodily injury was not
caused by reason of his intoxication.  See Texas Penal Code Section 49.07(a)(1)
(stating, "A person commits an offense if the person, by accident or mistake: . . .while
operating a motor vehicle in a public place while intoxicated, by reason of that
intoxication causes serious bodily injury to another" (emphasis added)).  
	The court of appeals looked at whether the evidence was legally sufficient to prove
that Appellant used or exhibited a deadly weapon during the commission of a felony
offense and considered the evidence related to Appellant's driving at the time of the
accident.  Although the State says this was the wrong standard, the majority uses
substantially the same standard as the court of appeals, stating that we must decide "if the
manner in which Sierra used his SUV when driving while intoxicated was capable of
causing death or serious bodily injury."  I agree that this was the correct standard.  For an
object that is not a deadly weapon per se, the State must show that the manner of use or
intended use is capable of causing death or serious bodily injury.  Thus, the court of
appeals was correct in its analysis of Appellant's use of the vehicle, which was not
reckless, not dangerous, not careless, and not in violation of any traffic laws. 
	The reason the State said that the court of appeals used the wrong standard is
because the court of appeals looked for evidence of reckless, dangerous driving, and there
is none.  Despite the definition of deadly weapon in Penal Code Section 1.07(a)(17)(B),
which requires a consideration of the manner of use, the State says that such evidence is
not necessary.  According to the State, because a motor vehicle poses an actual risk of
causing death or serious bodily injury and since Appellant failed to brake for another
vehicle and the occupants of the other vehicle had serious injuries, there should be a
deadly weapon finding.  This reasoning would create the offense of "accident with a
deadly weapon." (2) 
	Appellant was not the cause of this accident.  His driving did not cause this
accident.  His intoxication did not cause this accident.  Nothing he did caused serious
bodily injury.  He simply had the misfortune of being involved in an accident with a
careless driver who was injured.  The State says that the court of appeals assumed that
Appellant was not speeding, but the State is assuming that he was.  The State is also
assuming that since Appellant was involved in an accident (that was not caused by him)
that he was driving dangerously.  The majority agrees and basically says that because
Appellant failed to avoid the accident, he was driving recklessly.  
	I do not discount the evidence that Appellant was driving while intoxicated.  I
simply believe that given the facts of this case, and since Appellant was charged with
DWI and not with any sort of assaultive offense, the evidence of intoxication should be
used only to support a guilty verdict for the charged offense-it should not create a deadly
weapon finding when there is no indication that the manner of Appellant's use of his
vehicle caused bodily injury.  
	The court of appeals used the proper standard in considering the manner of
Appellant's use of his vehicle, and the evidence adduced by the court of appeals is
supported by the record.  Because the manner of Appellant's use of his vehicle did not
cause the bodily injuries, a deadly weapon finding should never have been included in
this case and the court of appeals was correct in reforming the judgment.
	Therefore, I respectfully dissent.

								Meyers, J.

Filed: April 1, 2009
Publish
1. I agree with Footnote seven of the court of appeals's opinion, stating, "Although also not
challenged in this case, it is not apparent how a deadly weapon can facilitate an offense of merely
driving while intoxicated, which does not require death, injury, threat of harm, or the like." 
Sierra v. State, No. 14-06-00528-CR, 2007 Tex. App. LEXIS 6724 at *7 (Tex. App.-Houston
[14th Dist.] Aug. 23, 2007).
2. See Footnote eight of the court of appeals's opinion, stating, "In addition, although it is
unquestionably dangerous to drive while intoxicated, it does not necessarily follow that driving
while intoxicated is itself driving in a dangerous manner for purposes of a deadly weapon
finding.  Otherwise, driving while intoxicated would be a per se use of a deadly weapon in every
felony DWI case, even for defendants who, like appellant in this case, are not driving in a
dangerous manner (even though they are driving while intoxicated) but would, in effect,
nevertheless be penalized for the dangerous driving of another motorist who actually caused the
collision."  Sierra, 2007 Tex. App. LEXIS at *10-11.
