Ex parte McKithan, 71473
| Decision Date | 14 October 1992 |
| Docket Number | No. 71473,71473 |
| Citation | 838 S.W.2d 560 |
| Parties | Ex parte Louis Russell McKITHAN. |
| Court | Texas Court of Criminal Appeals |
This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted by a jury of involuntary manslaughter by driving while intoxicated and was sentenced to ten years confinement and a $5000.00 fine. Applicant's conviction was affirmed. McKithan v. State, No. 08-89-00255-CR ().
The indictment charging Applicant with involuntary manslaughter alleges, in pertinent part, that Applicant caused the death of an individual by "causing the [Applicant's] motor vehicle to collide with the vehicle driven by [the deceased]." Upon submission of a special issue, the jury returned a finding that Applicant used or exhibited a deadly weapon during the commission of the offense. Applicant contends in this application that the indictment failed to provide adequate notice that the State would seek a deadly weapon finding. See Ex Parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987) (). See Articles 42.01 and 42.12, § 3g(a)(2), V.A.C.C.P.
This Court stated in Ex Parte Beck, 769 S.W.2d 525, 526 (Tex.Cr.App.1989), that "any allegation which avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, 'in the manner of its use ... capable of causing' (since it did cause) death." (Emphasis in original). Texas Penal Code, Section 1.07(a)(11)(B) provides that a "deadly weapon" means "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." A motor vehicle, in the manner of its use or intended use, is clearly capable of causing death or serious bodily injury and therefore can be a deadly weapon. See Roberts v. State, 766 S.W.2d 578 (Tex.App.--Austin 1989, no pet.)
Since the decision in Ex Parte Beck, this Court and intermediate appellate courts have upheld many cases in which the indictments were attacked for failing to provide notice that an instrumentality causing death or serious bodily injury would be litigated at trial and an affirmative finding sought by the prosecution. See, e.g., Johnson v. State, 815 S.W.2d 707 (Tex.Cr.App.1991) (); Mixon v. State, 804 S.W.2d 107 (Tex.Cr.App.1991) (); Speering v. State, 797 S.W.2d 36 (Tex.Cr.App.1990) (...
To continue reading
Request your trial
-
Tyra v. State
...anything, including a motor vehicle, which is actually used to cause the death of a human being is a deadly weapon. Ex parte McKithan, 838 S.W.2d 560, 561 (Tex.Crim.App.1992). This is necessarily so because a thing which actually causes death is, by definition, "capable of causing death." P......
-
Jimenez v. State
...injury or death caused by some act or instrument is sufficient notice for a deadly weapon finding. See, e.g., Ex parte McKithan, 838 S.W.2d 560, 561 (Tex.Crim. App.1992) (recognizing that motor vehicle can be deadly weapon in involuntary manslaughter case for purposes of providing notice in......
-
Mathonican v. State
...vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury. Ex parte McKithan, 838 S.W.2d 560, 561 (Tex.Crim.App.1992). Drichas, 175 S.W.3d at 798. The same is true of seminal fluid. It may become a deadly weapon that is used or exhibite......
-
Rachuig v. State
...it did cause) death [or serious bodily injury]." Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App.1989); accord Ex parte McKithan, 838 S.W.2d 560, 561 (Tex.Crim.App.1992). The first count of the indictment alleges in pertinent part that by reason of [his] intoxication cause[d] serious bodil......
-
Defending Intoxication Manslaughter and Intoxication Assault Cases
...Tex. Pen. Code §1.07(a)(17)(B); Ray v. State , 880 S.W.2d 795, 796 (Tex. App. Houston [1st Dist.] 1994, no pet .); Ex parte McKithan , 838 S.W.2d 560, 561 (Tex. Crim. App. 1992); Roberts v. State , 766 S.W.2d 578 (Tex. App. Austin 1989, no pet .). Specific intent to use a motor vehicle as a......
-
Defending Intoxication Manslaughter and Intoxication Assault Cases
...Tex. Pen. Code §1.07(a)(17)(B); Ray v. State , 880 S.W.2d 795, 796 (Tex. App. Houston [1st Dist.] 1994, no pet .); Ex parte McKithan , 838 S.W.2d 560, 561 (Tex. Crim. App. 1992); Roberts v. State , 766 S.W.2d 578 (Tex. App. Austin 1989, no pet .). Speciic intent to use a motor vehicle as a ......