NO. 387-00








Johnson, J., filed a concurring opinion, in which Price and Cochran, JJ., joined.

C O N C U R R I N G  O P I N I O N

I concur in the judgment only. I write separately to question the application of our holding in Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995), outside of its original context. In Tyra, we held that a deadly-weapon finding was appropriate for a defendant who was convicted of what is now called intoxication manslaughter. (1) We did so because "it is reasonably clear that driving an automobile constitutes the use of it and that driving it in a manner capable of causing death or serious bodily injury constitutes it a deadly weapon." Id. at 798. By their very natures, intoxication manslaughter and intoxication assault will always authorize a deadly-weapon finding because there is always death or serious bodily injury. That is, Tyra effectively authorizes any and all cases of intoxication manslaughter and intoxication assault to be enhanced through a deadly- weapon finding once the statutory elements of the offense have been established.

However, I question any reading of Tyra or of our statutes that authorizes a deadly weapon finding for any and all DWI convictions based solely on the statutory elements of the offense. Such a reading allows use of a finding for cases such as the sleepy drunk who drinks, drives, stops for the first stoplight, falls asleep at the wheel, and is arrested some time later by a passing police officer who stops to investigate why the car sat through six changes of the light. Or the intoxicated driver who, properly stopped at a stoplight, is struck by a car whose driver is fleeing from police, with the result that the intoxicated driver's passenger is killed. While driving an automobile does indeed constitute use, the act of driving does not necessarily constitute driving in "a manner capable of causing death or serious bodily injury," thereby making the automobile a deadly weapon.

This case shares with Tyra the circumstance that appellant was intoxicated and operating a motor vehicle. That circumstance, in and of itself, should not be enough to authorize a finding of the use of a deadly weapon. We have previously held that a deadly-weapon finding is not authorized for an allegation of possession of a firearm; since the possession of a firearm is the gravamen of the offense, the mere possession cannot be used to both to charge the offense and to enhance the punishment. See, e.g., Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992) (possession of prohibited weapon); Ex parte Petty, 833 S.W.2d 145, 145-6 (Tex. Crim. App. 1992) (felon in possession of firearm); see also Tyra, 897 S.W.2d at 799-802 (Baird, J., concurring). In cases of DWI, operation of a motor vehicle while intoxicated is the gravamen of the offense; the mere operation of that vehicle should not be permitted to be used to both charge the offense and enhance the punishment. I believe that in cases which charge DWI only, and not intoxication assault or intoxication manslaughter, each case must be examined on its own facts to determine if a deadly-weapon finding is appropriate.

In the instant case, appellant was convicted of felony DWI. See Tex. Pen. Code 49.04(a) & 49.09(b). During its case-in-chief, the state elicited testimony that "[a]s appellant approached a curve at Trinity Nursing Home, [he] drove his vehicle in a straight line and 'almost hit another vehicle head-on. The reason he didn't was because the [other] driver took evasive action.'" Mann v. State, 13 S.W.3d 89, 91 (Tex. App. - Austin 2000). Thus, under the specific facts established in this case, I believe that the jury was authorized to find that appellant had "used or exhibited a deadly weapon." See Tex. Pen. Code 1.07(a)(17); McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000). I therefore concur in the judgment.


Johnson, J.

Date Delivered: October 3, 2001


1. The statute at issue in Tyra, former 19.05(a)(2) of the Texas Penal Code, provided that "[a] person commits an offense if he . . . by accident or mistake when operating a motor vehicle, airplane, helicopter, or boat while intoxicated and, by reason of such intoxication, causes the death of an individual." This offense is currently covered by 49.08(a), which provides:

A person commits an offense if the person:

(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.