The Many Ways to Commit Assault with a Motor Vehicle in Texas

Faced with the question of whether Reckless Driving is a lesser-included offense of Aggravated Assault With a Deadly Weapon (A Vehicle), the Texas Court of Criminal Appeals explained that there are, indeed, many ways in which a vehicle can be used as a deadly weapon apart from the vehicle being driven, to wit:

• Locking the victim in a hot car,
• Slamming the victim’s head again the car frame,
• Rigging the car’s gas tank to explode,
• Placing the car in neutral and allowing it to run into the victim or a building,
• Suffocating the victim in the trunk, or
• Running the car in an enclosed area to cause carbon monoxide poisoning.

The CCA used this creative list to reverse the 5th Court of Appeals (Dallas), which had previously held that the trial court erred by not instructing the jury that it could find appellant guilty of the LIO of Reckless Driving if it believed the State did not prove Aggravated Assault w/a Deadly Weapon. The appellant argued at trial and on appeal that the LIO should apply, thereby giving the jury another option.

I apologize for the lack of analysis, but this case is really only interesting for nerds like me. I just found the CCA’s list of ways to use a vehicle for assault comical.

You can read the unanimous CCA opinion (Rice v. State) HERE.

Playing Catch-Up

While most of my recent focus has been on Texas Court of Criminal Appeals opinions, I have not been completely neglecting the various Courts of Appeals.  Below are some of the recent cases that were designated for publication by 1^st, 4^th, and 14^th District Courts of Appeals.   

Mims v. State, 1^st District Court of Appeals (Houston), 14 October 2010:

Appellant was convicted of first-degree arson and, after the court found that he used a deadly weapon (Fire), he was sentenced to 50 years in prison.  Appellant challenged the deadly weapon finding, arguing that fire cannot be a deadly weapon because it is not a tangible object and because it is one of the elements of the charged offense.  The Court held that

[A]lthough fire is not a physical object in the same sense as a gun or a knife, it is not intangible either, but rather manifests itself through the tangible aspects of combustion-namely, light, flame, and heat.  [F]ire is a thing which, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

The Court also held that the same conduct that supports an element of an offense can also serve to support a deadly weapon finding.  Having rejected both of Appellant’s arguments, the Court affirmed the conviction.

Escamilla v. State, 4^th District Court of Appeals (San Antonio), 13 October 2010:

The Court held that the child victim (3 years and 9 months old) was competent to testify regarding sexual abuse by her father.  The Court also held that the trial court did not abuse its discretion by admitting testimony of the Sexual Assault Nurse Examiner (SANE) regarding methods of determining anal sexual assault.  Justice Hilbig concurred in the result, but dissented regarding the admissibility of the scientific evidence provided by the SANE.

Pham v. State, 14^th District Court of Appeals (Houston), 14 October 2010:

The Court held that appellant had no objective expectation of privacy in a bag of ecstasy pills that he delivered to an accomplice for eventual delivery to a third party.  As such, appellant had no standing to challenge the seizure of the drugs from the accomplice or the later admission in court. 

"That's Not a Knife...This is a Knife"

Made famous by Paul Hogan in Crocodile Dundee.

Similarly, the 9th District Court of Appeals (Beaumont) distinguished a knife from a knife in Alvarado v. State, holding:

[A] kitchen knife will not qualify as a deadly weapon unless it is actually used or intended to be used in a manner capable of causing death or serious bodily injury.

The problem, argued Appellant, is that the jury was not informed of such.  Rather, the trial court instructed the jury, under Section 1.07(a)(17)(A), that

Deadly weapon means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.

Appellant was convicted (obviously - he wouldn't be an Appellant if were aquitted) of aggravated assault with a deadly weapon.  On appeal, he challenged the faulty jury instruction, arguing that it resulted in "egregious harm."  (Becuase he failed to object to the instruction at trial, the error must have resulted in "egregrious harm" for appellant to be entitled to any relief).

Noting the error, the Court did not find egregious harm, stating:

Alvarado contends that the erroneous definition of deadly weapon permeated the entire trial. At trial, Alvarado presented a defensive theory that he did not threaten the complainant with imminent bodily injury; however, he did not suggest that the knife would not have been capable of inflicting serious bodily injury on the complainant if it had been used forcefully against her. The erroneous definition did not vitally affect his defensive theory.

In other words, had his trial defense counsel be savvy enough to spot the "kitchen-knife-is-not-a-deadly-weapon" issue at trial, Appellant may have had himself a case.

Takeaway:  Not all knives are deadly weapons!

Please Drive Safely While Evading Arrest

Section 12.35 of the Texas Penal Code allows a defendant to be punished for a 3rd degree felony if, while in the commission of a state jail felony, he/she uses or exhibits a deadly weapon.

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.

Deadly Weapon Enhancement for Homicide Cases is a Joke!

Back in December, I wrote about the Texas Court of Criminal Appeals' decision in Crumpton v. State.  See my post HERE.  In Crumpton, the Court held that a "deadly weapon" finding is implied when a defendant is convicted of criminally negligent homicide.  No longer does the jury have to actually return an affirmative finding in order for the State to "enhance" the punishment range.

The infection in our criminal justice system regarding the deadly weapon finding has already begun, as we see the 4th District Court of Appeals (San Antonio) following the CCA's lead.  In McCallum v. State, the judge implied a deadly weapon finding from the jury's verdict convicting the defendant of the LIO of criminally negligent homicide (by striking a victim with his hand).  On appeal, McCallum argued that the jury is the proper body to make the deadly weapon finding, not the judge.  But, relying on Crumpton the Court held that the deadly weapon finding was implicit.

How did we get here?  This is legislating from the bench if I've ever seen it.  Why did the legislature create a punishment range for homicide offenses, if the State can summarily enhance them.  The definition of "deadly weapon" is "anything that in the manner if its use...is capable of causing death."  That means everything.  There have been cases where the ground was a deadly weapon.

So my questions is...If the victim in every homicide is dead (obviously), and a verdict of guilty for any homicide offense (including LIOs) implies the use of a deadly weapon, has enhancement simply become a matter of course in every homicide case?


Why do we even need a legislature when we have judges?

Can an Affirmative "Deadly Weapon" Finding be Implied?

According to the CCA, in Crumpton v. State, it can.

In a 5-4 opinion with 2 separate dissents, the CCA disregarded its prior holdings in Polk v. State, 693 S.W.2d 391 (Tex.Cr.App. 1985) and LaFleur v. State, 106 S.W.3d 91 (Tex.Cr.App. 2003), concluding that a jury verdict of guilty to criminally negligent homicide (as a lesser-included offense of manslaughter) implies an affirmative "deadly weapon" finding regardless of whether the jury has seen a deadly weapon clause associated with the LIO.

In reaching this decision, the Court relied on Blount v. State, 257 S.W.3d 712 (Tex.Cr.App. 2008) wherein it held that the indictment itself was adequate notice that there would be an issue of use of a deadly weapon. As the dissent points out, however, the thrust of Blount regarded whether the defendant was on "notice," an issue that was not raised in Crumpton.  The appellant in Crumpton argued that the jury was not charged and did not make an express deadly weapon finding when it returned its verdict - the court simply entered a deadly weapon finding as a logical (although not express) result of a guilty verdict to the LIO of criminally negligent homicide (because a homicide necessarily includes use of a deadly weapon or else no one would be dead).

In this case the CCA seems to have checked its reasoning and precedent at the door in order to uphold a conviction at all costs. By examining past CCA caselaw and distinguishing between the issues of "notice" and "express findings," Justice Meyers' dissent should have been the majority opinion.