PD-0560-18 09/12/2018
“The opinion of the court of appeals is in conflict with opinions of this Court holding there must be evidence of dangerous or reckless operation of a vehicle to support a finding it was used as a deadly weapon and the occurrence of a collision or consumption of alcohol do not establish those elements.”
While Couthren was driving down a highway access road at thirty miles per hour, a male pedestrian stepped in front of his car. Couthren hit the man, and the man’s head hit the windshield. Couthren described the man as “out of it” and stated he had swerved. When officers arrived, they observed that Couthren smelled of alcohol, had slurred speech and bloodshot eyes, and swayed as he stood. He admitted to having consumed four drinks with elevated alcohol content. Couthren’s girlfriend, who he had contact with shortly after the collision, believed he was intoxicated because of the way he “handled” her. Couthren was convicted of felony DWI with a deadly weapon finding.
Couthren challenged the sufficiency of the evidence to support the deadly weapon finding. Affirming the finding, the court of appeals held that the “manner” in which the car was used was “capable” of causing death or serious bodily injury. Noting that the specific manner of Couthren’s driving just before the accident is unknown, the court nevertheless pointed out that he had been drinking and was unable to avoid hitting the man while traveling at a “decent rate of speed.” Further, the man’s injuries proved that the car was capable of causing death or serious bodily injury.
Couthren contends that the court of appeals’ opinion conflicts with Sierra v. State and Brister v. State. 280 S.W.3d 250 (Tex. Crim. App. 2009); 449 S.W.3d 490 (Tex. Crim. App. 2014). Evidence of reckless or dangerous driving is required and neither the fact of intoxication nor a collision can, on their own, satisfy those elements. Therefore, there was no evidence of dangerous or reckless driving.
