Tyra v. State, 2-93-016-CR

• Decision Date: 30 November 1993
• Docket Number: No. 2-93-016-CR,2-93-016-CR
• Citation: 868 S.W.2d 857
• Parties: Jimmy Franklin TYRA, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 857

868 S.W.2d 857

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

No. 2-93-016-CR.

Court of Appeals of Texas Fort Worth.

Nov. 30, 1993.

Greg Merkle, Wichita Falls, for appellant.

Barry L. Macha, Crim. Dist. Atty., John W. Brasher, Asst. Criminal Dist. Atty., Wichita Falls, for State.

Before LATTIMORE, HICKS and FARRAR, JJ.

OPINION

LATTIMORE, Justice.

Appellant, Jimmy Franklin Tyra, was convicted by a jury of the offense of involuntary manslaughter, by accident or mistake when operating a motor vehicle while intoxicated. See TEX.PENAL CODE ANN. § 19.05(a)(2) (Vernon 1989). The jury made affirmative deadly weapon and enhancement findings, and assessed punishment at seventeen years confinement in the Institutional Division of the Texas Department of Criminal Justice and a $5,000.00 fine. On appeal Tyra raises four points of error contending that: (1) the trial court erred in submitting the deadly weapon issue to the jury because Tyra was found guilty of involuntary manslaughter by accident or mistake, thus precluding a deadly weapon finding; (2) there was insufficient evidence to support such a finding; (3) the direct evidence and circumstantial evidence failed to exclude to a moral certainty the reasonable hypothesis that the victim caused the accident; and (4) the jury's finding that Tyra exhibited or used a deadly weapon during the commission of a felony was not a rational finding.

We affirm.

On January 24, 1992 at about midnight, Tyra was involved in a three-vehicle accident at a signal-controlled intersection in Wichita Falls. A vehicle driven by Harvey Hux was stopped at the intersection because the light was red. A motorcycle driven by the victim, William Durbin, was located somewhere behind the Hux vehicle. A third vehicle driven by Tyra collided with the rear or middle left side of the motorcycle, and drove it into the rear of the Hux vehicle, fatally injuring Durbin. A witness testified that just before the collision Tyra had been driving at a high rate of speed, estimated at eighty miles per hour, and had jumped a median and nearly collided with another vehicle. In his defense, Tyra points to testimony that the light had changed to green five seconds before the collision, that the motorcycle's lights may not have been on, that Durbin was wearing black clothing, that the motorcycle may have changed lanes into Tyra's path, and that Durbin had traces of alcohol and phenobarbital in his system at the time of the accident. At trial, the jury was presented with a "deadly weapon" issue, and made an affirmative finding that Tyra's vehicle was a deadly weapon. Tyra's four points of error concern the "deadly weapon" issue.

In point of error one, Tyra complains that the trial court erred in denying Tyra's Motion to Quash (4), and in submitting the "deadly weapon" issue to the jury, because there can be no deadly weapon finding if the offense is committed by accident or mistake when operating a motor vehicle while intoxicated. Tyra's theory apparently would limit affirmative deadly weapon findings to those uses where the defendant intended to cause death or serious bodily injury, or intended to employ the motor vehicle as a weapon. In support of this theory, Tyra cites us to Patterson v. State, 723 S.W.2d 308 (Tex.App.--Austin 1987), aff'd, 769 S.W.2d 938 (Tex.Crim.App.1989), and English v. State, 828 S.W.2d 33 (Tex.App.--Tyler 1991, pet. ref'd). In our view, neither case supports Tyra's contention. Patterson involved the possession of a gun by a person arrested on drug charges. That court held that control over the gun while possessing contraband constituted the "use" of a deadly weapon, even though there was no effort made to actually use the gun. Patterson, 723 S.W.2d at 315. In English, the court stated that a vehicle operated by a intoxicated driver could be a deadly weapon, but held that the particular facts of that case did not justify such a finding, since it was not shown that the vehicle was operated in a reckless or negligent manner. English, 828 S.W.2d at 38-39.

"Deadly weapon" is defined in the Penal Code as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX.PENAL CODE ANN. § 1.07(a)(11)(B) (Vernon 1974). There is no requirement that the defendant intend to cause serious bodily injury with the deadly weapon. It is sufficient that the instrument, as used by the defendant or as he intended to use it, was capable of causing death or serious bodily injury. A motor vehicle may be a deadly weapon where "the vehicle was intentionally, recklessly or negligently used as a weapon by the accused." English, 828 S.W.2d at 38 (emphasis added). In Roberts v. State, 766 S.W.2d 578 (Tex.App.--Austin 1989, no pet.) (per curiam), the defendant drove his vehicle into an intersection at eighty to one hundred miles per hour while fleeing the police, and collided with a car stopped at a red light, causing a fatality. The defendant was intoxicated. That court held that the defendant's "reckless operation of his truck, and the death and serious bodily injuries to others that resulted, support the district court's finding that the truck was used as a deadly weapon.... That [defendant's] conduct was reckless, rather than intentional or knowing, does not alter the deadly manner in which he used the truck." Id. at 580 (citations omitted). See Ex parte McKithan, 838 S.W.2d 560, 561 (Tex.Crim.App.1992) (stating that a "motor vehicle, in the manner of its use or intended use, is clearly capable of causing death or...