                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00110-CR

MARK ALLEN BROWN,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2007-1466-C2


                         MEMORANDUM OPINION


      Mark Allen Brown appeals a jury finding that his automobile was a deadly

weapon. Brown pled guilty to two counts of intoxication manslaughter and two counts

of intoxication assault. TEX. PEN. CODE ANN. §§ 49.07 & 49.08 (Vernon 2003). He elected

to have the jury assess punishment. During the jury trial on punishment, the State

requested and received a special instruction in the charge seeking a deadly weapon

finding. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (Vernon Supp. 2009). The jury

answered the issue on the deadly weapon in the affirmative. Brown complains that the

evidence was legally insufficient to sustain the jury’s finding on the special issue
regarding whether or not his automobile was a deadly weapon. Because we find no

error, we affirm the conviction.

The Facts

       At approximately 11:30 a.m., Brown was driving his pregnant girlfriend to the

hospital. The weather was drizzly and the roads were wet. According to Brown and

his girlfriend, he hydroplaned on the road and lost control of his vehicle. He struck

another vehicle containing two passengers, Bonnie and Jessie Franklin. Bonnie was

seriously injured, and Jessie eventually died from his injuries. Brown’s girlfriend was

also seriously injured and she lost her baby.

       There was evidence that Brown had left the roadway approximately 760 feet

from the point of impact and hit a mailbox. His truck ended up in multiple pieces along

the road and into a field. One officer testified that he believed that alcohol, fatigue, and

unsafe speed due to the weather conditions and a curve in the road caused the accident.

Brown had worked an overnight shift at a grocery store the night prior to the accident.

Alcohol would intensify Brown’s fatigue. An accident reconstruction expert stated that

in his twelve years of experience he had never seen a vehicle break apart into pieces the

same way Brown’s truck did.

       A blood sample was taken from Brown shortly thereafter, which showed that his

blood alcohol content was .09 grams of alcohol per 100 milliliters of blood, which is over

the legal limit of .08 grams.

Standard of Review

       In reviewing the legal sufficiency of the evidence to support a conviction, we

view all the evidence in the light most favorable to the prosecution in order to

Brown v. State                                                                        Page 2
determine whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). In this analysis, we “determine whether the necessary inferences are reasonable

based upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim.

App. 2007).

Deadly Weapon

       A "deadly weapon" is "anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury."          TEX. PENAL CODE ANN. §

1.07(a)(17)(B) (Vernon 2003). An automobile can be a deadly weapon if it is used in a

manner capable of causing death or serious bodily injury to others. Cates v. State, 102

S.W.3d 735, 738 (Tex. Crim. App. 2003); Tyra v. State, 897 S.W.2d 796, 798-99 (Tex. Crim.

App. 1995). Specific intent to use an automobile as a deadly weapon is not required.

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). To determine whether an

automobile was used as a deadly weapon, we (1) "evaluate the manner in which the

defendant used the [automobile] during the felony;" and (2) "consider whether, during

the felony, the automobile was capable of causing death or serious bodily injury." Sierra

v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009).

       Brown does not raise the issue that the automobile is capable of causing death or

serious bodily injury. Therefore, we will only consider the manner in which Brown

used his automobile in our analysis. In doing so, we examine whether Brown's driving

was reckless or dangerous. Id. We consider several factors in examining whether a

Brown v. State                                                                       Page 3
defendant's driving was reckless or dangerous: (1) intoxication, Tyra, 897 S.W.2d at 798-

99; (2) speeding, Drichas v. State, 175 S.W.3d 795, 797 (Tex. Crim. App. 2005); (3)

disregarding traffic signs and signals, id.; and (4) driving erratically, id; Mann v. State, 13

S.W.3d 89, 91-92 (Tex. App.—Austin 2000), aff'd, 58 S.W.3d 132 (Tex. Crim. App. 2001).

         The testimony of the officers regarding Brown hitting a mailbox because he ran

off of the road approximately 760 feet from the collision, their opinions regarding the

causes for the accident, including that Brown was driving at an unsafe speed for the

conditions, and the condition of the vehicles after the collision make the jury’s

determination that the automobile driven by Brown was used in a reckless and

dangerous manner and therefore was a deadly weapon legally sufficient. We overrule

Brown’s sole issue.

Conclusion

         We find that the evidence was legally sufficient to support the finding that the

automobile driven by Brown was a deadly weapon. We affirm the judgment of the trial

court.

                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed February 3, 2010
Do not publish
[CR25]




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