If you are facing a felony DWI trial in Texas, odds are the State will ask the jury to find that your car was used as a “deadly weapon”? If the jury agrees that your car was a deadly weapon and you are sentenced to prison, you eligibility for parole will be limited. You will be required to serve 1/2 your sentence, or a minimum of 2 years before being eligible for parole. It’s an easy trial penalty for the State, which is one of the ways they pressure defendants into taking plea bargains and waiving their right to trial.
What is a deadly weapon finding?
An affirmative deadly weapon finding is the trier of fact’s express determination that a deadly weapon was actually used or exhibited during the commission of the offense. LaFleur vs. State, 106 S.W.3d 91, 94 (Tex. Crim. App. 2003). Generally, an affirmative finding of a deadly weapon may be made when (1) the indictment includes an allegation of a “deadly weapon,” and the verdict states the defendant is guilty as charged in the indictment, (2) the indictment does not allege “deadly weapon,” but does allege a weapon that is per se a deadly weapon, and the verdict states the defendant is guilty as charged in the indictment, or (3) the jury has affirmatively answered a special charge issue on “deadly weapon” use or exhibition. Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985).
Isn’t driving a car while intoxicated always considered using a deadly weapon?
No, a motor vehicle is not a deadly weapon per se, but can be found to be a deadly weapon if it is used in a manner that is capable of causing death or serious bodily injury. See TEX. PENAL CODE § 1.07(a)(17)(B).
A deadly weapon finding in a driving while intoxicated case is dependent upon specific testimony in the record about how the automobile was used or driven and whether a defendant’s driving was reckless or dangerous.