 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Dotson v. State9/2/2004
157, 159 (Tex. Crim. App. 2001). An object qualifies as a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. Id. Therefore, the operation of a motor vehicle may constitute the "use" of a deadly weapon and no intent to use the vehicle as a weapon need be shown to sustain an affirmative finding. Walker v. State, 897 S.W.2d 812, 814 (Tex. Crim. App. 1995). Consequently, we reject Dotson's contention that a deadly weapon finding is improper in the instant case merely because the offense of manslaughter required less than intentional conduct. Accord George v. State, 117 S.W.3d 285, 290 (Tex. App.--Texarkana 2003, pet. ref'd); Ivie v. State, 905 S.W.2d 701, 702 (Tex. App.--Houston [14th Dist.] 1995, no pet.).
In addition, our review of the record reveals sufficient evidence to support the trial court's finding that Dotson operated his RV in such a manner as to render it capable of causing serious bodily injury or death. In the instant case, the evidence demonstrates that Dotson drove his RV towards Sitko and swerved slightly in Sitko's direction, thereby striking and killing her with his RV. See Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (stating that "driving an automobile constitutes the use of it and that driving it in a manner capable of causing death or serious bodily injury constitutes it a deadly weapon"). Based on the evidence presented at trial, the evidence is both legally and factually sufficient to support the trial court's affirmative deadly weapon finding.
Dotson also alleges that the State failed to provide him with timely notice of its intent to seek a deadly weapon finding with respect to the lesser included offense of manslaughter. We disagree. On January 24, 2002, Dotson was charged with Sitko's murder. The indictment alleged that Dotson intentionally or knowingly caused Sitko's death by striking her with a motor vehicle. On May 22, 2003, Dotson was reindicted, and the reindictment alleged murder and manslaughter, and contained an express allegation that he used or exhibited a deadly weapon during the commission of the offense. It is well settled law that an allegation of serious bodily injury or death caused by some act or instrument is sufficient notice for a deadly weapon finding. Ex parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989); see also Ex parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992) (recognizing that motor vehicle can be deadly weapon in manslaughter case for purposes of providing notice in indictment). Contrary to Dotson's allegations, he was given more than sufficient notice of the State's intent to seek a deadly weapon finding on the lesser included offense of manslaughter. The January 24 indictment was sufficient to put Dotson on notice that the State intended to seek a deadly weapon finding, and the January 24 indictment necessarily included the lesser offense of manslaughter. See Allison v. State, 618 S.W.2d 763, 764 (Tex. Crim. App. [Panel Op.] 1981). Therefore, we overrule Dotson's seventh, eighth, and ninth points.
VIII. Motion for New Trial
In his tenth point, Dotson contends that the trial court abused its discretion by failing to conduct a hearing on his motion for new trial. The State maintains that the trial court did not abuse its discretion by failing to hold a hearing on Dotson's motion for new trial because the allegations in Dotson's motion were either determinable by the record or unsupported by factual allegations in his motion and supporting affidavit.
The right to a hearing on a motion for new trial is not absolute. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). However, a defendant is enti
Page 1 2 3 4 5 6 7 8 9 10 11 12 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|