           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

      K EASLER, J., delivered the opinion of the Court in which K ELLER, P.J., P RICE,
W OMACK, J OHNSON, H ERVEY, and C OCHRAN JJ., joined. M EYERS, J., filed a dissenting
opinion in which H OLCOMB, J., joined.

                                     OPINION

      The court of appeals held that the evidence was legally insufficient to support the

jury’s finding that Antonio Sierra used or exhibited his vehicle as a deadly weapon while

driving intoxicated.1 We disagree. A rational jury could have found that Sierra drove in a

reckless and dangerous manner during the offense. We therefore reverse and remand this


      1
      Sierra v. State, No. 14-06-00528-CR, 2007 Tex. App. LEXIS 6724 (Tex.
App.—Houston [14th Dist.] Aug. 23, 2007).
                                                                                SIERRA—2

case to the court of appeals.

                                       Background

       At approximately 4:30 p.m. on August 20, 2005, Laura Pacheco and her boyfriend,

Hector Salinas Almendarez, were leaving an apartment complex in Houston. As they drove

out of the complex onto Imperial Valley Drive in a small Toyota four-door car, Sierra T-

boned the car with his Ford SUV. Imperial Valley Drive is a four-lane, heavily used road

that is separated by a median made of concrete and grass. The entrance and exit of the

apartment complex are located after a slight curve on Imperial Valley Drive and are adorned

with bushes and a wrought iron fence on each side. Sierra’s SUV hit the driver’s side of the

car, pushing part of it onto the median. When the SUV stopped, it remained pressed against

the driver’s side of the car.

       After the accident, Sierra got out of his truck and began to scream at Pacheco and

Almendarez, blaming them for causing the accident.          Almendarez, who was in the

passenger’s seat of the car, looked over at Pacheco in the driver’s seat. He noticed that she

was bleeding and not moving or talking. Almendarez yelled at Sierra to call for help and

then passed out. Officer T. Triplett with the Houston Police Department arrived at the scene

of the accident a few minutes later and called for an ambulance. Officer Triplett identified

Sierra as the driver of the SVU and smelled a “[s]trong odor of alcohol on his breath.” By

the time that Officer Triplett arrived, Almendarez regained consciousness, but Pacheco was

still pinned in the car; she was having difficulty breathing and was convulsing. A tow truck
                                                                                 SIERRA—3

pulled Sierra’s SUV from the car, and emergency personnel removed Pacheco from the car

and took her to the hospital. She remained in the hospital for a month.

        At trial, Almendarez recalled what he saw immediately before the accident. He

testified that Pacheco fully stopped the car and waited for the oncoming traffic to pass before

pulling onto Imperial Valley Drive. Almendarez saw Sierra’s SUV traveling south in the

outer lane. He also noticed another car, which was in front of Sierra’s SUV, make a right

turn into the apartment complex. At this point, Almendarez lost sight of Sierra’s SUV

because the car entering the complex blocked his view. Almendarez then saw Sierra’s SUV,

traveling south in the inner lane, right before the crash. Almendarez testified that Sierra

changed lanes because the car in front of him was turning into the complex. He also stated

that the bush at the north side of the entrance to the complex did not block his view of the

traffic heading south.

       After Pacheco was taken to the hospital, Officer Douglas Wayne Ertons with the

Houston Police Department’s accident division arrived at the scene to collect information.

Officer Ertons initially observed that: the road was dry, there were no skid marks leading up

to the point of impact, there was a gouge in the road near the entrance and exit of the

apartment complex, and there were sideways skid marks leading up to where the car was

resting on the median.   Officer Ertons testified that the gouge in the road showed the point

of impact and that the sideways motion of the car’s tires created the skid marks leading to the

median. Officer Ertons testified to three possibilities for the lack of any skid marks before
                                                                                     SIERRA—4

the point of impact: first, that Sierra did not brake; second, that Sierra did not apply the brake

hard enough; or third, that the SUV had antilock brakes and Sierra “applied the brakes but

they would not skid . . . .”   At the scene, Officer Ertons spoke to Sierra and asked him to

identify where he was on Imperial Valley Drive when he first saw the car. Based on Sierra’s

account, at trial, Officer Ertons stated that an average, undistracted person reacting to the car’s

presence under these conditions and traveling at the posted speed limit of thirty-five miles per

hour would be able to come to a complete stop within seventy-one feet of the car. On cross-

examination, Officer Ertons conceded that he was uncertain whether Sierra’s account of his

location at the time he first saw the car was entirely accurate. Officer Ertons explained that

he did not know whether the Spanish-speaking translator specifically asked Sierra if he was

near, past, or right at the location identified by Sierra.

       Officer Ertons also calculated the speed of Sierra’s SUV at twenty-eight miles per

hour. Qualifying his calculation at trial, Officer Ertons testified that it was inaccurate because

he could not account for the energy or momentum loss from the car striking the median and

then resting on top of the median. Officer Ertons estimated that Sierra was traveling at a

speed between highway and public roadway speeds. When Officer Ertons spoke to Sierra he

“detected an odor” of alcohol, and when he asked Sierra whether he had been drinking or

taking any drugs or narcotics, Sierra told him that he did not use any drugs or drink any

alcohol that day. Finally, Officer Ertons testified that both the bush on the north side and a

car making a right turn into the complex could obstruct the view of a driver turning north out
                                                                                 SIERRA—5

of the complex.

         Sierra was arrested for driving while intoxicated (DWI). He failed several field

sobriety tests, and his blood and breath samples revealed that his alcohol concentration, which

registered at approximately .12, exceeded the legal limit of .08.2 During the field sobriety

tests, performed shortly after 7:00 p.m., Sierra told the administrating officer that he had

thirteen beers the previous night while watching the Astros game. He was also adamant that

the accident was not his fault and said that he was going ten miles per hour under the speed

limit.

         In April 2006, Sierra was charged with felony DWI. A jury found him guilty and

found that he used his SUV as a deadly weapon during the commission of the offense. The

jury then sentenced Sierra to ten years’ imprisonment.

                                       Court of Appeals

         On appeal, Sierra claimed, among other things, that the evidence was legally

insufficient to support the jury’s affirmative deadly weapon finding.3     In doing so, Sierra

maintained that the accident was not his fault.4 Toward that end, he argued that: “(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 collision, [he] applied his brakes and turned to



         2
             See T EX. P ENAL C ODE A NN. §§ 49.01(1)-(2) (Vernon 2003).
         3
             Sierra, 2007 Tex. App. LEXIS 6724, at *1, *4.
         4
             Id. at *4-5.
                                                                                    SIERRA—6

the left to avoid the collision; and (5) there is no evidence that his intoxication caused or

contributed to the accident.”5 The court of appeals agreed with Sierra and held that there is

no evidence that Sierra “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.” 6 The

court determined that the only evidence indicating the manner in which Sierra drove includes

the following: “(1) his speed was below the 35 mile per hour speed limit; (2) there were no

skid marks leading up to the accident; and (3) based on the location that [Sierra] said he first

perceived the danger, [he] should have been able to stop before the collision occurred.” 7

Consequently, the court ordered the deadly weapon finding deleted from the trial court’s

judgment.8

                           State’s Petition for Discretionary Review

       We granted the State’s petition for discretionary review to decide whether the court of

appeals applied the wrong legal standard and assumed incorrect facts in reversing and deleting

the jury’s affirmative deadly weapon finding. The State argues that requiring a person to

drive in a reckless, threatening, careless, or dangerous manner to sustain a deadly weapon

finding is not the proper legal standard. The State further argues that, even if this standard



        5
            Id.
        6
            Id. at *8-9.
        7
            Id. at *8.
        8
            Id. at *17.
                                                                                   SIERRA—7

is correct, the facts of this case meet the standard; therefore, upholding the deadly weapon

finding in this case will not “open the floodgates to such findings in all felony DWI cases.” 9

Nevertheless, the State contends that there is no rule of law preventing a deadly weapon

finding in all felony DWI cases.

                                           Analysis

       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.10 “Intoxicated” in Penal Code

Section 49.01(2) is defined as either: “loss of faculties” or “per se” intoxication (i.e., .08 or

more alcohol concentration).11      “Deadly weapon,” as defined in Penal Code Section

1.07(a)(17)(B), means “anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.” 12 An affirmative deadly weapon finding has a

negative impact on a defendant’s eligibility for community supervision, parole, and mandatory

supervision.13




        9
             State’s Br. at 12.
        10
       T EX. P ENAL C ODE A NN. § 49.04(a) (Vernon 2003); State v. Barbernell, 257
S.W.3d 248, 256 (Tex. Crim. App. 2008).
        11
             Barbernell, 257 S.W.3d at 249.
        12
            T EX. P ENAL C ODE A NN. § 1.07(a)(17)(B) (Vernon 2003).
        13
          Mann v. State, 58 S.W.3d 132, 133 (Tex. Crim. App. 2001); see also T EX. C ODE
C RIM. P ROC. art. 42.12 § 3g(a)(2) (Vernon 2006); T EX. G OV’T C ODE A NN. § 508.145
(Vernon Supp. 2007), §§ 508.149, 508.151 (Vernon 2004).
                                                                                      SIERRA—8

       Adopting the reasoning and holding of the Austin Court of Appeals in Mann v. State,14

we held that Texas law authorizes a deadly weapon finding in felony DWI cases.15 The

Austin court rejected Mann’s arguments that use of a deadly weapon without an associated

felony will not support a deadly weapon finding and that such a finding is impermissible

because DWI is a misdemeanor offense at its inception.16 Relying on our decision in Tyra v.

State, where we said that Tyra’s vehicle was used as a deadly weapon when he accidentally

or mistakenly caused the death of an individual when driving while intoxicated,17 the court

held that no associated offense is required under the phrase “used a deadly weapon.” 18 The

court also determined that prior convictions used to elevate a misdemeanor DWI to a felony

are “elements of the offense under section 49.09(b);” thus, an affirmative deadly weapon

finding is not unlawful because DWI is a misdemeanor at its inception.19 Quoting from our

decision in Patterson v. State,20 the court noted that “[a]ll felonies are theoretically susceptible

to an affirmative weapon finding for the purposes of denial of community supervision and




        14
             13 S.W.3d 89, 91-92 (Tex. App.—Austin 2000).
        15
             Mann v. State, 58 S.W.3d 132, 132 (Tex. Crim. App. 2001).
        16
             Mann, 13 S.W.3d at 91-92.
        17
             897 S.W.2d 796, 798-99 (Tex. Crim. App. 1995).
        18
             Mann, 13 S.W.3d at 91.
        19
             Id. at 92.
        20
             769 S.W.2d 938, 940 (Tex. Crim. App. 1989).
                                                                                 SIERRA—9

limitation of parole eligibility.” 21 Considering the specific issue before it, the court asked

whether the evidence shows that Mann’s vehicle “should be classified as a deadly weapon

because it was capable of causing serious bodily injury or death in a manner of its use or

intended use while [Mann] committed the felony DWI.” 22 In making this determination, the

court stated that “evidence that others were endangered” is required; “a hypothetical potential

for danger if others had been present” is not sufficient.23 The court then found that the

evidence was sufficient because Mann “‘almost hit another vehicle head-on’” when he

crossed the center line and an experienced police officer testified that such a collision “was

capable of causing death or serious bodily injury.” 24 The court also rejected Mann’s claim

that a person must have the specific intent to use an instrument as a deadly weapon based, in

part, on our holding in Walker v. State 25 that “no intent to use the automobile as a deadly

weapon need be shown.” 26

       In this case, we must decide whether, in viewing the evidence in the light most

favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt




        21
             Mann, 13 S.W.3d at 92.
        22
             Id.
        23
             Id.
        24
             Id.
        25
             Id.
        26
             897 S.W.2d 812, 814 (Tex. Crim. App. 1995).
                                                                                SIERRA—10

that Sierra used or exhibited his SUV as a deadly weapon when he was driving while

intoxicated.27 Therefore, we must determine if the manner in which Sierra used his SUV

when driving while intoxicated was capable of causing death or serious bodily injury.28 In

making this determination in past cases involving a motor vehicle as a deadly weapon, we

have divided this question into two parts: first, we evaluate the manner in which the defendant

used the motor vehicle during the felony; and second, we consider whether, during the felony,

the motor vehicle was capable of causing death or serious bodily injury.29

       Although we have never announced a specific standard for assessing a defendant’s

manner of driving, we have, in past decisions, examined whether a defendant’s driving was

reckless 30 or dangerous 31 during the commission of a felony. For example, in Tyra v. State,

we characterized Tyra’s driving as reckless “enough to endanger the lives of other people”

and said that Tyra was “too drunk to control the vehicle.” 32 And in Mann, as noted above, the



        27
          Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (citing Jackson v.
Virgina, 443 U.S. 307, 319 (1979); Tisdale v. State, 686 S.W.2d 110, 114 (Tex. Crim.
App. 1985) (op. on reh’g)).
        28
             See T EX. P ENAL C ODE A NN. § 1.07(a)(17)(B).
        29
           Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (citing McCain
v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); (Walker v. State, 897 S.W.2d 812,
814 (Tex. Crim. App. 1995)).
        30
         Id.; Tyra, 897 S.W.2d at 799; see also T EX. P ENAL C ODE A NN. § 6.03(c)
(Vernon 2003).
        31
             Cates, 102 S.W.3d at 738-39.
        32
             897 S.W.2d at 798-99.
                                                                                  SIERRA—11

evidence showed that Mann “‘almost hit another vehicle head-on when [his] vehicle crossed

the center lane.” 33 Next, in Cates, we reversed the court of appeals’s holding that the evidence

was legally sufficient to sustain the deadly weapon finding because there was no evidence that

Cates drove the truck in a deadly or dangerous manner during the offense of failure to stop

and render aid.34 Finally, in Drichas, we observed that Drichas, in the course of evading

detention with a vehicle, led law enforcement officers on a fifteen-mile high-speed chase

during which he “disregarded traffic signs and signals, drove erratically, wove between lanes

and within lanes, turned abruptly into a construction zone, . . . and drove down the wrong side

on the highway.” 35 Affirming the deadly weapon finding in that case, we said that Drichas’s

“manner of using his truck posed a danger to pursuing officers and other motorists that was

more than simply hypothetical.” 36

       In this case, when evaluating the manner in which Sierra was driving while intoxicated,

the court of appeals determined that to affirm a deadly weapon finding, there must be

evidence of: (1) reckless, threatening, careless, or dangerous driving; (2) a violation of any

traffic law; and (3) fault for the collision. Our preceding discussion establishes that some of

the criteria used by the court of appeals include factors that we have found determinative in



        33
             13 S.W.3d at 92.
        34
             102 S.W.3d at 738-39.
        35
             175 S.W.3d at 797.
        36
             Id. at 798.
                                                                                   SIERRA—12

prior cases—dangerous and reckless driving and the violation of traffic laws.

       The State urges us to look beyond a defendant’s overt physical actions and rely instead

on the single factor of intoxication, which, in the State’s view, is “the most dangerous and

reckless of them all.” 37 In support of its argument, the State cites the following statistic from

the Mother’s Against Drunk Driving website: “In 2006, an estimated 17,602 people died in

alcohol-related traffic crashes—an average of one every 30 minutes.” 38 The court of appeals

rejected this argument,39 and Sierra argues that we should do the same. But we do not need

to settle that issue today. Our precedent gives us adequate guidance here because, when

reviewing the facts of this case, the court of appeals erred in concluding that Sierra’s manner

of driving while intoxicated was not reckless or dangerous.

       Looking at the evidence in the light most favorable to the prosecution, a rational fact-

finder was permitted to conclude that Sierra was driving recklessly or dangerously while

intoxicated.40 There was no evidence that Sierra attempted to brake before the impact, even

though he told Officer Ertons that he was 247 feet away from the car when he first spotted it.

Based on Sierra’s account, the evidence showed that a normal, undistracted person, who was

driving at the thirty-five mile-per-hour speed limit, would have stopped seventy-one feet


        37
             State’s Br. at 11.
        38
             Id. (citing http://ww.madd.org/Drunk-Driving/Drunk-Driving/Statistics.aspx).
        39
         Sierra, 2007 Tex. App. LEXIS 6724, at *10 n.8; see also Mann, 58 S.W.3d at
133-34 (Johnson J., concurring, joined by Price and Cochran, JJ.).
        40
             See Cates, 102 S.W.3d at 739.
                                                                                 SIERRA—13

before the car. Therefore, Sierra could have avoided the collision, but he failed to do so, even

though he had ample opportunity to stop before hitting the car. The evidence also established

that Sierra was traveling at a speed between public roadway speeds, which a reasonable jury

could infer meant thirty-five miles per hour from Officer Ertons’s testimony, and highway

speeds. Considering all of these facts, a jury could reasonably find that Sierra was speeding

and failed to maintain control his SUV. Therefore, it was reasonable for the jury to conclude

that Sierra’s driving was dangerous and reckless while intoxicated.

       Next, we turn to the second inquiry—whether Sierra’s SUV was capable of causing

serious bodily injury at the time of the accident. We find that a rational jury was permitted

to answer in the affirmative. The record establishes that the SUV did indeed cause serious

bodily injury to Pacheco. We hold that, viewed in the light most favorable to the verdict, the

evidence is legally sufficient to support the jury’s finding that Sierra’s SUV was used or

exhibited as a deadly weapon.

                                         Conclusion

       Because the evidence is legally sufficient to support the jury’s affirmative deadly

weapon finding, we reverse the part of the court of appeals’s judgment deleting the deadly

weapon finding and reinstate it. Further, we remand this case so that the court can consider

Sierra’s remaining point of error—whether the evidence is factually sufficient to support the

deadly weapon finding because the court of appeals reversed on legal sufficiency only.
                                SIERRA—14

DATE DELIVERED: April 1, 2009
PUBLISH
