NO. 07-06-0055-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B OCTOBER 13, 2006

______________________________ JOSE ANTONIO M OYA, Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 106 TH DISTRIC T COURT O F LYNN COUNTY; NO. 05-2751; HON. CARTER T. SCHILDKNECHT, PRE SIDING

_______________________________

Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant

Jose Antonio M oya appea ls from his conviction for driving while intoxicated. He does not di spute his conv iction per se but the jury ’s determinati on that he used a dea dly

wea pon d uri ng t he co mmis sio n of t he off e nse. The deadly

weapon, according to the State, cons isted of the trac tor he wasdrivin g at th e tim e. Th rough his two issues, he contends that t he evidence w as legall y and factuall y insufficient to prove th e tractor was a deadly weapon. We overrule the issues and affirm the judgment.2 Background Bradley Ray Ashbr

ook (Ashbrook ) testified that he was dr iving ho m e in his ‘03 Dodge, 3/4 ton four-wheel drive di esel pickup t ruck on July 25, 2005, around 8:0 0 p.m. on Highway 380. As he was

traveli ng, a tractor being driven by appellant “ended up in [his] lane.” Though Ashbrook tried to avoid the tractor, his efforts proved unsucce ssful because “[t]here wa s n’t nowher e [sic] to g o.” So, he “s lammed on the brakes ” and struck the “passenger

-side tire of the tractor.” W hile his truck was “totaled” (incurring approximately $32,000 worth of dam age), he received minor injuries. An investi gating officer arriv ing at the scene found appell ant in the dri ver’s s eat of the tractor. The office r noted that appellant’s eyes were bloodshot, he had an empty be er can beside him, and hehad a cut on the br idge of his nos e. So too did the officer smell alcohol “coming from the tractor”; anoth er witn ess testified th at she smelled al cohol on appellant’s breath. And, when asked, appellant admitte d to drinking “earlier in the day” at around “8:00 a.m .” (Emphasis added). However, testing undertaken about an hour after the crash rev

ealed appellant’ s blood alcohol level to be .25. Law and Its Applic

ation The applicable standard of review is wel l-settled and need not be reiterated. Instead
we cite the part ies to Zuliani v. State , 97 S.W.3d 589 (Tex. C rim. App. 2003) and King v. State , 29 S.W.3d 556 (Tex. Crim. A pp. 2000) for itsexplanation

. Again, we note that appellant doesnot contest thefact of his intoxication. Rather, he questions t he finding that t he tractor constituted a deadly w eapon. A deadly w

eapon is anythin g that "in the manner of its use or intended use is

capable of causing de ath o r3

serious bodily i njury." T EX
. P ENAL C ODE §1.07(a)(17) (B). A nd, m otor vehicles may fall within that categor

y depending on their manner of use. Ex parte McK ithan , 838 S .W.2d 560, 561 (Tex. Crim. App. 1992 ). With that said, we turn to the record before us. Though no one testi fied about the m odel number or size of the tractor, it nonetheless was motori zed and of sufficien t mass to, if struck on th e front passenger tire, “total” (or cause $32 ,000 worth of da mage to) a 3/4 ton four- wheel dri ve diesel pickup truck. So, a jury could rationally conclude that it was no small thin g. Moreov er, it was being oper ated on a p ubli c roa dway by someone who was intoxicated. While be ing so operated, it entered into an oncoming lane of traffic, and w hile oncoming traffic endeavor ed to avoid the tractor, it could not. The result ing coll ision “totaled” t he aforementioned pick up truck. This constitutes some evidence upo n which a rational j ury could conclude beyond reasonable doubt that the tr actor, in i ts m anner of use, was capable of causi ng death or serious bodily i njury. See Davis v. State , 964 S.W.2d 352, 354 (Tex. A pp.–Fort Worth 1998, no pet.) (hol ding that appel lan t’s we aving into lanes of oncoming traff ic while into xicat ed an d cau sing o ther s to t ake e vasive action was enough evidence to support a deadly weapon finding). So, the evi dence was l egally sufficient to suppor

t the verdi ct. Next, in a factual suff iciency review, we must review all of the evidence to determine whether the adverse finding is against the great weight and preponderance of th e available evidence. Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Appellant contends thathe drove the tract or as he did due to chest pains, as opposed to his intoxication. Simply put, the evidence raised a fact i ssue as to w hether the man ner in which h e dro ve the tractor was due to his intoxication or supposed chest pains. This is a fact i ssue for the jury to decide. Fu rthermore, hi s uncor roborated comments did not overwhelm the4

evidence indic ative of his driv ing as he did while intoxicated. Again, this was left to the jury to decide. Thus, w

e cannot find that theevidence concerning t he deadly weapon finding to be factually

insufficient. We overrule each issue a nd affirm the judgment.

Brian Quinn Chief Justice Publish.