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Ortiz v. State11/30/2004
the truck with appellant and that he was driving, was drunk, and was acting "crazy." Davidson testified that during his investigation of the accident, he searched the truck and found beer bottles and an empty twenty-pack container of beer. A short time later, when Davidson attempted to speak with appellant in the hospital, appellant was "passed out" and smelled strongly of alcohol. Later, when Davidson interviewed appellant he admitted that he was driving the truck when the accident occurred and that he had been drinking. Thus, there was more than sufficient evidence of intoxication that could more easily have been interpreted by the jury than the extrapolation testimony.
Under these circumstances, we conclude the extrapolation testimony is likely to have had only a slight effect on the jury's determination that appellant was intoxicated. We overrule appellant's third point of error.
Deadly Weapon
In his fourth point of error, appellant contends the evidence is legally insufficient to support the deadly weapon finding in the intoxication assault case. We disagree.
A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2004-05). The plain language of section 1.07(a)(17)(B) does not require that the actor actually intend death or serious bodily injury; rather, "[t]he placement of the word 'capable' in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force." Bailey v. State, 38 S.W.3d 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).
Our review of the record reveals sufficient evidence to show appellant operated the pickup truck he was driving in such a manner as to render it capable of causing serious bodily injury or death. Appellant swerved into the oncoming lane of traffic, collided with the Peters' truck, and seriously injured Mrs. Peters. We conclude this evidence is legally sufficient to support the deadly weapon finding. See Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) ("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"). We overrule appellant's fourth point of error.
Factual Sufficiency
In his fifth and sixth points of error, appellant contends the evidence is factually insufficient to support his convictions. Again, we disagree.
When reviewing the factual sufficiency of the evidence, we must determine whether a neutral review of the evidence demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).
Evidence may be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough so that the beyond-a-reasonable-doubt standard could not have been met. See id. In examining a factual sufficiency challenge, we defer to the fact finder's determination of the credibility of the evidence. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In his fifth point
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