April 19, 2019

Texas Court of Criminal Appeals

Couthern v. State

No. PD-0560-18                4/17/19


Is the occurrence of a collision and consumption of alcohol, along with evidence about the driver’s behavior after the collision-namely, preventing the victim from getting medical attention-sufficient to support a deadly weapon finding for a vehicle in a felony DWI case?


No. Evidence at trial must show that the driver’s dangerous or reckless operation made the vehicle a deadly weapon in its manner of use. Read opinion.

Dissent (Keller, PJ, joined by Keasler, Hervey, and Yeary, JJ):

The dissent disagrees with the majority seeming to require a showing that a defendant drove recklessly or dangerously. “First, the statutory definition of ‘deadly weapon’ has no such requirement. Second, even if it were proper for the Court to consider those factors in cases in which no injury occurred, as a matter of logic, that would not necessarily lead to the conclusion that it would be necessary in cases where there is injury.” Read opinion.


It is difficult to discern a guiding principle from the majority opinion that would help a prosecutor in deciding whether to seek a deadly weapon finding in a driving while intoxicated case. This opinion will certainly make it more difficult for prosecutors to gain a deadly weapon finding in cases where there is no direct testimony of how the defendant drove his vehicle. If you wish to seek such a finding in a DWI case, familiarize yourself with this decision and those it cites.