DWI and the Car as a Deadly Weapon Enhancement

Some prosecutors will seek to punish a Defendant who demands a trial and start digging through the case to find an “enhancement” (enhancement increase the possible sentence or limit parole etc). This is more common for Defendants with lengthy criminal histories, but some prosecutors apply this approach to anyone who dares seek a jury trial.

For example, a prosecutor may try to enhance certain felony cases because the county did not receive enough rain last year and was declared a disaster area. Our laws are so poorly written, and prosecuting in Texas is so poorly regulated, that these revenge charge enhancements (or trial penalties) are easy to come by if a prosecutor is so inclined. There is literally no risk to the State for piling on new charges or enhancements on every Defendant who seeks a trial.

This leads us to our case of the day-


Mark was charged with a felony DWI in Orange County. Mark had two prior DWIs, and two prior felony trips, which mean Mark was “high bitched” as they say in defense circles. That means Mark is looking at 25-99 years in the penitentiary for being a habitual offender. The factual recitation from the court’s opinion makes it sound like Mark was intoxicated. So we’ll assume he’s guilty of DWI. Mark was found guilty and given a 40 year sentence.

Deadly Weapon Allegations

Mark’s case was further enhanced by a deadly weapon allegation. What is a deadly weapon allegation? Well, it was intended as a way to punish people who use guns and weapons to commit crimes. But it has morphed into an “anything is a deadly weapon” provision in Texas. You name it, and it can be a deadly weapon. There is no actual “weapon” required either. That’s how we got to the point of having cars become deadly weapons. I mean if you are trying to ram someone with a vehicle then it is a weapon. So maybe that happened here right? Maybe Mark was trying to intentionally kill someone with his car right? And the police or another witness saw him do this?

Let’s look at the law first. This is from the opinion.

To establish a deadly-weapon finding, the State must demonstrate that: (1) the object was something that in the manner of its use or intended use was capable of causing death or serious bodily injury; (2) the weapon was used or exhibited during the transaction from which the felony conviction was obtained; and (3) other people were actually endangered. Drichas v. State, 175 S.W.3d 795, 797 (Tex. Crim. App. 2005); see also Garza v. State, 298 S.W.3d 837, 843 (Tex. App.—Amarillo 2009, no pet.) (citing Cates, 102 S.W.3d at 738).

Ok. So since DWI is a felony, and a car is used in a DWI, then all cars are now deadly weapons in felony DWI cases? That doesn’t sound right. Let’s look at some case law.

From the opinion-

In Drichas, the Texas Court of Criminal Appeals described the type of evidence needed to support a deadly-weapon finding. See id. at 799. The Court wrote that the statute “does not require pursuing police officers or other motorists to be in a zone of danger, take evasive action, or require appellant to intentionally strike another vehicle[.]” Id. “The volume of traffic on the road is relevant only if no traffic exists.” Id. “Capability is evaluated based on the circumstances that existed at the time of the offense.” Id. The Court explained that “a deadly weapon finding is appropriate on a sufficient showing of actual danger, such as evidence that another motorist was on the highway at the same time and place as the defendant when the defendant drove in a dangerous manner.” Id.

You don’t have to show that the court was used as a weapon, or that the driver tried to strike someone. So what did Mark do with his car to deserve this enhancement? Answer: He’s a guy with a bad criminal record who asked for a trial. Maybe I’m cynical, let’s see what evidence the State had to show Mark used his car as a deadly weapon.

From the opinion-

According to Officer Warner, there were “[v]ery few, if any, cars on the roadway[]” at that time of night. Officer Warner did not recall how long he had followed Brister before he observed the traffic violation. The patrol car was equipped with a video recorder that was set to automatically record through the front windshield of the patrol car whenever the officer activated his emergency lights. However, Officer Warner testified the equipment failed during this particular traffic stop. Officer Warner testified that Brister crossed over the center line only one time. At all times after Officer Warner activated his emergency lights, he observed Brister drive in a single lane and come to a stop in a normal distance in a convenience store parking lot. The officer characterized
Brister’s driving from the time he activated his emergency lights until Brister stopped as “normal driving.”

So Mark drove normally, and the video equipment “failed” so we will never really know what happened. Nice. You may not be surprised how often DWI videos go “missing” in cases because equipment “malfunctions”. So we sentence a guy to 40 years in jail without the only objective piece of evidence of his driving. Typical for Texas.

Let’s go back to the deadly weapon allegation. Mark drove over the center line one time, which is really nothing. Some cops consider one tire touching the center line “going over”, so that doesn’t tell us anything. What is telling is that the Officer testified Mark was driving normally. Normal driving gets you a deadly weapon enhancement in Texas. And why not? What does it cost the prosecutor to pile this on a defendant? Nothing. Mark doesn’t sound like a great guy. Multiple DWIs, multiple felony convictions. So who cares about him?

Guess what? The same vague and inane laws that let the State file a nonsense enhancement in this case will let prosecutors do that in a case involving someone with no criminal history. The State can file these enhancement against the innocent as well. Nothing protects you from overreaching by the State.

Holding- Or, why did the State lose on this issue? 

From the opinion-

In Cates, the Court of Criminal Appeals reversed a jury’s deadly weapon finding on a conviction for failing to stop and render aid. 102 S.W.3d at 738-39. Noting that the gravamen of that offense is leaving the scene of the accident, the Court found the evidence showed there was no other traffic on the roadway at the time Cates left the scene, the vehicle never left the roadway, and there was no evidence offered by the State that anyone was actually endangered by the vehicle while it left the scene. Id. at 738. “To sustain a deadly weapon finding requires evidence that others were endangered, and not merely a hypothetical potential for danger if others had been present.” Mann v. State, 13 S.W.3d 89, 92 (Tex. App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001)…

The State failed to present evidence from which a reasonable jury could conclude beyond a reasonable doubt that people were actually endangered by Brister’s operation of the vehicle during
the offense. See Foley, 327 S.W.3d at 917; Drichas, 175 S.W.3d at 798. T

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