IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 387-00

 

EDWIN HARRIS MANN, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

WILLIAMSON COUNTY


Holcomb, J., delivered the opinion of the Court, in which Keller, P.J., and Womack, Keasler, and Hervey, JJ., joined. Johnson, J., delivered an opinion concurring in the judgment of the Court, in which opinion Price and Cochran, JJ., joined. Meyers, J., dissented without written opinion.


OPINION




The question presented in this case is whether Texas law authorizes a deadly weapon finding in a prosecution for driving while intoxicated (DWI), third offense. We hold that it does.

A Williamson County grand jury indicted appellant, Edwin Harris Mann, for driving while intoxicated, third offense. See Tex. Pen. Code 49.09(b). The case went to trial before a petit jury. At the guilt/innocence stage of trial, the State presented evidence that on February 14, 1997, appellant drove an automobile through downtown Round Rock while he was intoxicated. The State also presented evidence that appellant's vehicle nearly hit another vehicle head-on and that a collision was avoided only because the other driver took evasive action. The jury subsequently found appellant guilty and also found that he used a deadly weapon, namely an automobile, during the commission of the offense. (1) The jury assessed appellant's punishment, enhanced by two prior non-DWI felony convictions, at imprisonment for fifty years.

On direct appeal, appellant argued, inter alia, that Texas Code of Criminal Procedure article 42.12, 3g(a)(2), did not authorize a deadly weapon finding in any prosecution for driving while intoxicated. The Third Court of Appeals rejected appellant's argument and affirmed the judgment of the trial court. Mann v. State, 13 S.W.3d 89, 91-92 (Tex.App.-Austin 2000). We granted the first ground in appellant's petition for discretionary review to determine whether the Court of Appeals erred. See Tex. R. App. Proc. 66.3(b).

We have reviewed that part of the Court of Appeals' opinion dealing with the merits of appellant's deadly weapon claim and find it to be sound. We therefore adopt that part of the opinion as our own without further comment. See Makeig v. State, 830 S.W.2d 956 (Tex.Crim.App. 1992); Manning v. State, 773 S.W.2d 568 (Tex.Crim.App. 1989).

We overrule appellant's ground for review and affirm the judgment of the Court of Appeals.



DELIVERED OCTOBER 3, 2001

PUBLISH

1. Texas Code of Criminal Procedure article 42.12, 3g(a)(2), provides in relevant part that a trier of fact to may make, upon sufficient evidence, an "affirmative finding" "that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon." Texas Penal Code 1.07(a)(17) provides, in turn, that a "deadly weapon" is, in relevant part, "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." A deadly weapon finding limits a defendant's eligibility for community supervision and parole. See Tex. Code Crim. Proc. art. 42.12, 3g(a)(2); Tex. Gov't Code 508.145, 508.149 & 508.151.