 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Fleming v. State2/17/1999
and Bivins' knee surgery took place over one month later. The questions next propounded to Bivins by the State are as to "problems" with his knee or hand "since your surgery." To both questions, Bivins responded with an unembellished "Yes, ma'am." As to problems with his injuries since the accident, Bivins replied that they still hurt, and that he missed work during his recuperation from his knee surgery.
From the above-described evidence as to Bivins' injuries, we find nothing which would permit even the inference of protracted loss or impairment of either Bivins' knee or his hand as a result of the collision. The fact that "It still hurts," provides evidence of bodily injury, but not serious bodily injury. Bivins was certainly ambulatory immediately following the collision and for some time afterward. There is no evidence that either his knee or his hand thereafter deteriorated to a point of protracted loss or impairment of either body part. We therefore find that the evidence is legally insufficient to sustain appellant's conviction under count two of the indictment, the Intoxication Assault of William Randall Bivins. Point three is sustained as to count two.
As for count three, the Aggravated Assault of Bivins, recall that the State alleged that the appellant caused Bivins serious bodily injury in paragraph one and that appellant caused bodily injury to Bivins by use of a deadly weapon in paragraph two. Since the State was not required to prove both, and we have already held the evidence of "bodily injury" to have been legally sufficient, point three is overruled as to count three of the indictment. To summarize, point three is overruled as to counts one and three, and sustained as to count two.
Point four complains of the lack of sufficient evidence for an affirmative finding of the use of a deadly weapon "when there was no serious bodily injury involved in any of the three charges against him[.]" At the outset, we note that the only count in which a deadly weapon was alleged was count three, the Aggravated Assault allegation. The deadly weapon in question was appellant's motor vehicle. It is clear that motor vehicles are not made or adapted for the purpose of inflicting death or serious bodily injury, so they are not "deadly weapons" per se as defined under Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon 1994). However, items that are not deadly weapons per se have been found to be deadly weapons by nature of their "use or intended use" under § 1.07(a)(17)(B). See Hill v. State, 913 S.W.2d 581, 582-83 (Tex. Crim. App. 1996). The use or intended use must be capable of causing death or serious bodily injury. Id. at 583. In the instant case, Trooper Johnson testified that a motor vehicle is a deadly weapon because " riven in a reckless manner, it's a 3,000 pound hunk of metal and it can cause serious bodily injury and/or death."
Appellant does
not contest the sufficiency of the evidence that he intentionally, knowingly, or recklessly caused bodily injury to William Bivins by driving a motor vehicle into a motor vehicle occupied by Bivins. It is the manner of appellant's use or intended use of his vehicle that is the basis for the affirmative finding, not whether or not Bivins was killed or sustained serious bodily injury. So long as appellant's use or intended use of his vehicle was "capable" of causing death or serious bodily injury to Bivins, the evidence would be sufficient to sustain the affirmative finding. The evidence in the instant case was legally sufficient to support any rational trier of fact's finding that appellant used or exhibited a deadly weapon in the commission of the offense of Aggravated Assault. Point four is overruled.
Page 1 2 3 4 5 6 7 8 9 10 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|