- he was intoxicated, and
- he used his car as a deadly weapon.
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.)