Driving While Intoxicated Case Law Update - Texas District ...

of Appeals had misconstrued the actual danger requirement by equating a deadly weapon's
capability of causing death or senbus bodily injury with its probability of doing, thus reading into the
statute an additional requirement of evasive action or zone of danger when said requirement did not
exist and therefore reversed and remanded this case fo the Court of Appeals. Upon remand, the
Court of Appeals once again found there was insufficient evidence to support the deadly weapon
finding based on its finding that there was insufficient evidence that there was another motorist
present on the roadway "atthe same place and time" asthe defendantwhen he drove in a reckless
manner. The Court of Criminal Appeals once again accepted PDR and reversed and remanded
again, finding that the factual-sufficiency standard of review used by the Court of Appeals was
flawed. ln last remand Court of Appeals applied proper standard and (big surprise) again held
against deadly weapon finding.
3. IS NOT PROPER
Boes v. State,2OO4 WL 1685244 (Tex.App.-Austin 2OO4).
ln this case trooper observed defendant failed to come to a complefe sfop at.the sfop s,'gn. When
turning, defendant over- accelerated and momentarily lost control of his vehicle causing it to fishtail
sideways and almost hit the curb of the sidewalk. There was insufficient evidence to support the
deadly weapon finding. The Court pointed out there was no evidence that anyone e/se was actually
endangered by the defendant's driving.
Wifliams v. State, 946 S.W. 2d 432 (Tex.App.-Fort Worth 1997, no pet.).
Court of Appeals held that a *deadly weapon" finding was not permissible absent evidence that
another motorist was on the highway at the time and place defendant drove in an intoxicated
condition.
4. NOTICE MUST BE ADEQUATE AND TIMELY
Desilets v. State,2010 WL 3910588 (Tex.App.-Beaumont 2010, no pet.) (Not designated for
publication).
The State filing an amended motion seyen days prior to trial that notified defendant of the Sfafeb
intent to prove that he "did then and there use and exhibit a deadly weapon, namely, a motor
vehicle" was found to be adequate notice.
Hocutt v. State, g27 S.W.2d 201 (Tex.App.-Fort Worth 1996, pet. ref'd).
In fetony DWI case with an accident and minor injurie,s, Sfafe faxed notice of intenttoseek a deadly
weapon finding just 3 days before voir dire began. The notice did not specify on its face that the
deadly weapon was the "automobile." The Court of Appeals held that the notice was neither timely
nor adequate and reversed the case on punishment only.
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