But what if the deadly weapon is part of the underlying offense? For instance, what if a person evades arrest by fleeing in a vehicle? Evading arrest is a crime under Section 38.04 of the Texas Penal Code and when someone uses a vehicle to evade arrest, it is a state jail felony. Can that crime then be punishable as a 3rd degree felony under the Section 12.35 enhancement provision simply because the actor uses a deadly weapon (a vehicle)?
While it may seem illogical to permit a deadly weapon enhancement where the use of the instrumentality characterized as a deadly weapon is an essential element of the underlying offense, Texas allows it. I know...I couldn't believe it when I read it either. Did the legislature truly intend that the offense of evading arrest by using a vehicle be enhanced further for proof that the actor used a vehicle? I would hope not. Although, the Texas Court of Criminal Appeals has not yet weighed-in on this issue, the 2nd District Court of Appeals (Fort Worth) and, most recently, the 6th District Court of Appeals (Texarkana), have explained:
Section 12.35 of the Texas Penal Code makes no exception to the enhancement requirement where, as here, the instrumentality alleged to be a deadly weapon is also an essential element of the offense to be enhanced.State v. Brown, ___ S.W.3d ___ (Tex. App.--Texarkana 2010).
This holding, to me, was a bit discouraging. It essentially means that any offense wherein use of a motor vehicle is a necessary element (e.g. DWI) may be enhanced because the actor used a "vehicle." I could understand enhancing the punishment if the actor used a different weapon, such as a gun or a knife to evade arrest, but a vehicle? C'mon! Thankfully, Justice Carter's concurring opinion clarified the issue and tempered the majority opinion with some logical reasoning. He stated:
The misdemeanor offense of evading arrest or detention is committed if the party flees; it becomes a state jail felony when the party uses a motor vehicle. TEX. PENAL CODE ANN. § 38.04(a), (b)(1). Theoretically a motor vehicle may be used in many ways—even if it is driven in a safe, uneventful manner, the offense would be a state jail felony. The allegation that the vehicle was used or exhibited as a deadly weapon requires much more proof. Since a motor vehicle is not manifestly designed to inflict injury, there must be proof that in the manner of its use or intended use, it was capable of causing death or serious bodily injury. TEX. PENAL CODE ANN. § 1.07(17) (Vernon Supp. 2009). As we have recently held, proof that a vehicle is capable of causing serious bodily injury requires a showing of actual danger such as another person being present at the same time and place when the defendant drove in a reckless manner. Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.—Texarkana 2007, pet. ref‘d).At least we know that enhancement isn't automatic - although I still don't think the hurdle is too high for the State to jump in cases such as these. Is speeding enough? What about swerving? Hopefully the CCA will take this up soon and provide some clarity. Until then, remember,
If you are going to evade arrest in a vehicle, drive carefully, within the speed limit, and obey all traffic regulations.