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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, October 27, 2013

Drunk Drives in Empty Lane the Wrong Way- Beaumont Justices Disagree Whether the Car Is a Deadly Weapon.

Mark Randall Brister appeals his third conviction for driving while intoxicated. His two prior offenses make his third conviction a felony. He complains that the evidence in this last case is insufficient to prove that:

  1. he was intoxicated, and
  2. he used his car as a deadly weapon.
First, consider the sufficiency of the evidence. Back before alcohol concentration became a definition for intoxication, people were convicted of intoxication offenses by proof that they did not have the normal use of mental or physical faculties by reason of the introduction of a substance into the body. Intoxication offenses predate field sobriety tests, police videos,  and alcohol breath test machines. If, as in this case, a police officer witnesses the defendant drive in the lane for oncoming traffic, be unable to stand when he is out of the car, unable to speak without slurring his words, smelling strongly of alcoholic beverages, and disputating with every authority between the road and his county jail cell, then there is sufficient evidence that the defendant lacked the normal use of faculties because of alcohol in the body. That there were not any field sobriety test results, no in-car video-- cruisers did not have cameras installed--, no breath test results, and a police station video set-up that did not work most of the time that cops were trying to record did not queer the conviction.
Second, the issue about the deadly-weapon finding was whether or not people other than the defendant were endangered by the crime. Drichas v. State, 175 S.W.3d 795, 797  (Tex. Crim. App. 2005). Brister drove his car for a time on the wrong side of the road, but it was the middle of the night and the road was fairly well deserted. Justice Charles Kreger, joined by Chief Justice Steve McKeithen, wrote an opinion reversing the deadly weapon finding, Justice Hollis Horton dissented: he believed that the trial court was right that the late-night wrong-way drive made the car a deadly weapon.

Prosecutors love felony DWI deadly weapon findings which greatly increase the amount of time that convicts have to do. High-level judges, though, often feel a need to require that there be additional evidence of endangerment of innocents for there to be a deadly weapon finding for crimes where the deadly weapon is a thing required to commit the offense itself. One can't commit DWI without driving a car, nor evading arrest with a vehicle without operating a vehicle. Some crimes have the delayed parole consideration dates of a deadly weapon without an extra finding. Appellate court judges quite reasonably believe that if the legislature wanted delayed parole dates for all felony DWIs and similar offenses, the legislature could just say so in the statute.

Thanks to the Texas District and County Attorneys Association.

Mark Randall Brister v. State of Texas, ___ S.W.3d ___, No. 09-12-00247-CR, (Tex. App.-- Beaumont, Oct. 16, 2013, no pet. h.)

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