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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Sunday, June 3, 2012

Ninth Court of Appeals Overturns Deadly Weapon Finding in DWI with Child Passenger Case

The most newsworthy part of this decision is that a panel of the Ninth Court of Appeals in Beaumont sided with the defense that the auto in the driving while intoxicated with child passenger case was not a deadly weapon.  The rest of the decision lists unsuccessful attacks on the judgment and that the judgment was corrected to show that instead of the charge's being of a second degree felony, the charge was of a state jail felony and that charge was enhanced by two priors to be a second degree felony.
One night, defendant Steven Ray Pointe, with his ten-year-old son in the back seat, hit the vehicle that Margaret Richter was driving. Richter said that she had not seen or heard Pointe coming before he hit her. Ethan Sonnier witnessed the wreck. He said that he hadn't seen Pointe coming before the wreck. The officer on the scene, Frank Carpenter, assigned the blame for the wreck to Richter-- Pointe had had the right of way; Richter made a turn in front of Pointe.
Chief Justice Steve McKeithen wrote the opinion for a panel that included Justices David Gaultney and Hollis Horton. Chief Justice McKeithen cited Sierra v. State, 280 S.W.3d 250 (2009) from the Texas Court of Criminal Appeals at 255 to say that in determining the sufficiency of the proof  of a deadly weapon finding an appeals court should consider: (1) the manner in which the defendant used the motor vehicle during the felony; and (2) whether, during the felony, the motor vehicle was capable of causing death or serious bodily injury. He then cited Foley v. State, 327 S.W.3d 907, 916 (Tex. App.—Corpus Christi 2010, pet. ref‟d) along with Sierra about how the defendant used his vehicle during the offense, considering (1) intoxication; (2) speeding; (3) disregarding traffic signs and signals; (4) driving erratically; and (5) failure to control the vehicle. The appeals court ruled that there was sufficient evidence that the defendant was intoxicated. The  State argued that Richter's and Sonnier's not seeing or hearing Pointe's vehicle before the collision showed that Pointe was speeding or not using his headlights and therefore driving recklessly. The jury also heard, though, that Richter pulled out in front of Pointe's moving vehicle and caused the accident. The record, Chief Justice McKeithen reported, contains no other evidence that Pointe was driving recklessly.
The appeals court concluded that a claim was Pointe was speeding or driving recklessly was speculative, citing Tex. Penal Code Ann. § 1.07(a)(17)(B). Sierra, 280 S.W.3d at 255 and Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) at 13 Under the circumstances of this case, the appeals court concluded that, even viewing the evidence in the light most favorable to the verdict, a rational jury could not find, beyond a reasonable doubt, that the manner in which Pointe used his vehicle was capable of causing death or serious bodily injury.
OK, DWI lawyers, the Niners have laid the ground rules out pretty plainly for those seeking or fighting a deadly weapon finding. They know it, too. This is an opinion to be published (See the prior post in this blog as to how important that is.)
This opinion does not tell what Pointe's priors are. To enhance him in felony court, they would have to be felonies. If they were not intoxication felonies under Chapter 49 of the Texas Penal Code, then the presence of his passenger turned this offense from a misdemeanor to a ten-year felony, even though under the circumstances he may have been a more able driver than the presumably sober person whose vehicle he hit. I doubt that this affected the panel's desire to rule so that Pointe would get parole eligibility two and a half years into his sentence, including good time, instead of five years into his sentence without. Chief Justice McKeithen can't have worked very many DWIs after 1992, and I can't tell if he did none or only a handful before then. Justices Gaultney and Horton were civil defense lawyers before they rose to the bench; they have seen a whole lot more DWI in Beaumont's appellate court than they've seen earlier in their careers.
Steven Ray Pointe v. State of Texas, No.09-11-00026-CR (Tex. App.--Beaumont May 30, 2012, no pet. h.).


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  2. The Texas District and County Attorneys' Association found something different to comment on in this case. They thought it was noteworthy that the Nines did not reverse because Pointe was refused his own HGN expert, saying that if his lawyer had pressed the point better, he should have had the right to one. http://www.tdcaa.com/casesummaries/june-8-2012