Tyra v. State

• Citation: 897 S.W.2d 796
• Decision Date: 26 April 1995
• Docket Number: No. 036-94,036-94
• Parties: Jimmy Franklin TYRA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 796

897 S.W.2d 796

Jimmy Franklin TYRA, Appellant, v. The STATE of Texas, Appellee.

No. 036-94.

Court of Criminal Appeals of Texas.

April 26, 1995.

Greg Merkle, Wichita Falls, for appellant.

Barry L. Macha, Dist. Atty., Ed Lane and John W. Brasher, Asst. Dist. Attys., Wichita Falls, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Appellant was convicted of involuntary manslaughter under former Penal Code section 19.05(a)(2) for accidentally or mistakenly causing the death of an individual by reason of operating a motor vehicle while intoxicated. His punishment was assessed at confinement in the penitentiary for 17 years and a fine of $5,000.00. Because the jury specifically found that appellant used or exhibited a deadly weapon during commission of the offense, the trial judge also made a notation to this effect on the judgment. See Tex.Code Crim.Proc. art. 42.12, § 3g(a)(2).

On appeal, appellant argued that a deadly weapon finding is not appropriate under the statute unless the evidence supports a conclusion that the accused actually intended to use an object in such a way as to cause serious bodily injury or death. The Fort Worth Court of Appeals rejected this argument, holding that an object need not be used as a weapon to qualify as one and that any use of an object, whether intentional or not, in such a manner as to cause serious bodily injury or death will authorize a deadly weapon finding under article 42.12, section 3g(a)(2). Tyra v. State, 868 S.W.2d 857 (Tex.App.--Fort Worth 1993). We granted appellant's petition for discretionary review to determine whether this holding conflicts with our opinion in Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App.1989).

The felony at issue in Patterson, possession of a controlled substance, did not require, either expressly or by necessary implication, proof that the accused used or exhibited a deadly weapon. But because the ordinary English phrase "use a deadly weapon during commission of an offense" may mean "arming oneself for protection while committing the offense," we upheld a lower appellate court's conclusion that the evidence was sufficient to prove a deadly weapon had been "used" during Patterson's possession of methamphetamine.

The process according to which we investigated the meaning of the phrase "used or exhibited a deadly weapon" in Patterson is routine in our jurisprudence. We proceeded from the premise that terms appearing in the statute law of this State should be "read in context and construed according to the rules of grammar and usage." Id. at 940, quoting from Gov't Code § 311.011(a). We then consulted a highly regarded lexicon of the English language for information about the word "use," and found that using something often means "hav[ing] recourse to or enjoyment of [the thing]." It may also mean "put[ting] into action or service[,] apply[ing] to advantage[,] turn[ing] to account[, or simply] utiliz[ing]." Finally, we found that using a thing can mean "carry[ing] out a purpose by means of [the thing]." Id. at 941. It was in this latter sense, we decided, that the evidence sufficiently showed Patterson to have used a deadly weapon.

Patterson thus construed the phrase "used or exhibited a deadly weapon" by opening it to the broadest possible understanding in context of which it was reasonably susceptible in ordinary English. See Vernon v. State, 841 S.W.2d 407, 409-10 (Tex.Crim.App.1992). Such an understanding includes "any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony." Patterson, 769 S.W.2d at 941, quoting from Patterson v. State, 723 S.W.2d 308, 315 (Tex.App.--Austin 1987).

In his brief before this Court, appellant argues that Narron v. State, 835 S.W.2d 642 (Tex.Crim.App.1992) and Ex parte Petty, 833 S.W.2d 145 (Tex.Crim.App.1992) have construed this language from Patterson not merely to mean that facilitation of an "associated felony" is one of the uses to which a deadly weapon can be put, but that a deadly weapon can never be "used" within the meaning of our statutes unless it is "utilized to achieve an intended result, namely, the commission of a felony offense separate and distinct from 'mere' possession." Petty, 833 S.W.2d at 145; Narron, 835 S.W.2d at 644 (emphasis added). While this argument may have some superficial support in the text of those opinions, we decline to read Narron or Petty quite so expansively.

Each of those cases involved an offense in which the mere possession of a deadly weapon was criminalized. Responding to the argument that Patterson permits an affirmative finding of deadly weapon use on the basis of possession alone, we observed in Narron and Petty that possession of a weapon to facilitate a felony, as in Patterson, constitutes the use of that weapon, whereas mere possession of the weapon without putting it to any use or purpose whatsoever does not. Accordingly, we held that a deadly weapon is not necessarily used or exhibited during the commission of offenses such as the possession of a prohibited weapon or the unlawful possession of a firearm by a felon merely because the thing possessed is actually a deadly weapon.

Our opinions in Narron and Petty thus evince a recognition by this Court that, as a matter of semantics, the phrase "used or exhibited a deadly weapon" does not mean the same thing, or merely the same thing, in ordinary English as "possessed a deadly weapon." They do not stand for the proposition that the phrase "used or exhibited a deadly weapon during commission of a felony offense" necessarily means "used or exhibited a deadly weapon during commission of an offense which does not otherwise require the use or exhibition of a deadly weapon."

In the instant cause, Tyra was convicted of involuntary manslaughter, accidentally killing a man with his pickup truck because he was too drunk to control the vehicle. Our precedents establish that 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." Penal Code § 1.07(a)(11)(B) (now § 1.07(a)(17)(B)); Ex parte Beck, 769 S.W.2d 525, 526-27 (Tex.Crim.App.1989). It follows that Tyra's pickup was undoubtedly a deadly weapon in the instant cause.

Likewise, Patterson holds that "use" means having "recourse to or enjoyment" of a thing. It also means putting a thing "into action or service." When the word "use" is understood in either of these senses, according to the rules of grammar and usage as Patterson counsels, and the term "deadly weapon" is understood as defined by the Legislature, 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. The fact that involuntary manslaughter under former Penal Code section 19.05(a)(2) is a felony offense which, therefore, always involves the use of a deadly weapon does not change the meaning of these words. There is simply nothing in the phrase "used a deadly weapon" to imply that it must always be used to commit an "associated offense."

Had the appellant in this case recklessly caused the death of another by carelessly discharging a firearm in his direction, it is unlikely there would be much dispute about his use of a deadly weapon. But because automobiles are not "manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury," it is a little strange to find the use of a deadly weapon in any instance where an automobile, although used with deadly effect, was not used with a deadly purpose. After all, in common parlance, objects designed for other purposes, like kitchen knives, hammers, and automobiles, are not spoken of as weapons at all, let alone deadly weapons, unless purposefully used to fight or contend against others.

But the law prescribes a very different meaning for the word "weapon" as used in the Penal Code and Code of Criminal Procedure, and however unfair or counterintuitive it may seem to apply it in the instant cause, the problem is nevertheless one of policy, not of statutory construction. The Legislature could hardly have been clearer when it provided that adult probation (now community supervision) shall not be available "to a defendant when it is shown that a deadly weapon as defined in Section 1.07(a)(11), Penal Code, was used or exhibited during commission of a felony offense[.]" Tex.Code Crim.Proc. art. 42.12, § 3g(a)(2) (emphasis added). The statute expressly includes in the definition of deadly weapons those things which are capable of causing death in the manner of their use, not just those things which are manifestly designed to cause death or which will cause death if used as intended.

This statute may not be a model of specificity. But we cannot say that it is too vague for rational enforcement either. The fact is that the Legislature might not actually have contemplated application of the statute to a variety of circumstances, including those presented here. But the statute on its face does apply to these facts. As the Court emphasized in Patterson, " '[u]se,' as a verb, may mean a number of things." 769 S.W.2d at 940. Whether it means mere possession, the question actually presented in Narron and Petty, may have been a close question. Whether it means driving an automobile recklessly enough to endanger the lives of other people is not. If, therefore, entry of an affirmative finding that appellant used a deadly weapon to end the life of another motorist seems unwise or unfair in this case, consideration should be given to amending the statute. But it is a poor excuse for setting aside the rational...