### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00241- CR
Scott Lief Erickson, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2012 -09 1, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

On May 31, 2010, appellant, Scott L ief Erickson, was driving intox icated with a blood-alcohol content of 0.33 when he rea r-e nded another vehicle, causing minimal damag e to that vehicle but substantial damag e to his own vehicle. For tunately , appellant neither seriously injured himself nor t he occupants of the ot her vehicle. At trial, appellant plea ded g uilty to felony driving while intox icated (DWI ), Tex. Penal Code §§ 49.04, .09(b)( 2), not g uilty to use of a deadly wea pon during commission of the offe nse, id

. § 1.07(a) (17)( B) , an d t ru e to an enhanc ement para g raph rela ting to a prior fe lony

conviction, id . § 12.42(a) . The jury found appe llant guilty , found that he had used a deadly wea

pon, and ultimately assessed a sentenc e of 15 y ear s’ imprisonment. On appea l, appellant challeng es only the sufficie ncy of the evidenc e to support the jury ’s finding that his motor vehicle w as used or

exhibi ted as a

deadly wea pon. We will affirm.An object may be either a “dea dly wea pon” by desig n, if it is “manife stly desig ned, made, or adapte d for the purpose of inflicting death or serious bodily injury ,” id. § 1.07(a) (17)( A),

or by use, if “in the manner of its u s e or intended use [i t] is capa ble of causing death or serious bodily injury ,” id

. § 1.07(a) (17)( B)

. The Texas Court of Criminal Appea ls has held that, under the fore g oing definition, a motor vehicle may become a dea dly wea pon if in the manner of its use it is capa ble of causing death or serious bodily injury

. Drichas v. State , 175 S.W .3d 795, 798 (Tex. Crim. App. 2005); Ex parte McKithan , 838 S.W .2d 560, 561 (Tex. Crim. App. 1992). “Specif ic intent to use a motor ve hicle as a

deadly wea pon is not required.” Drichas , 175 S.W .3d at 798. I n Mann v. State , the court of criminal appea ls held that Texas law authorizes a deadly

wea pon finding in a prosec ution for DWI when evidenc e shows that the dang er to other persons was
rea l, not just hy

pothetical. 58 S.W .3d 132, 132 (Tex. Crim. App. 2001) (cla ssification of vehicle as deadly wea

pon was proper beca

use testim o n y s h o wed defe ndant “almost hit another vehicle h ea d -o n ” and would have but for other driver’ s evasive actions); see also W oodall v. State , No. 03-05-00850- CR, 2008 WL 3539997, at *2 (Tex. App.—Austin Aug

. 14, 2008, p et
. ref ’d) (mem. op., not desig nated for publication) (nea r col l i s i on wher e defe ndant swerve d into neig hboring lane trave ling 45 mph was sufficie nt to sustain jury ’s finding that defe ndant u s e d v e h ic le as dea dly wea pon). The court of crimi n al ap p ea l s elabor ated on the Mann holding in Sierra v. State , ar t i culating a two-prong test to deter mine whether a motor vehicle is a deadly wea pon un d er t h e particul ar ci rc u m stance s by considering : (1) the manner in which the defe ndant used the motor vehicle during the offe nse, and (2) whether during the offe nse the motor vehicle was capa ble of

2causing death or serious bodily injury

. 280 S.W .3d 250, 255 (Tex. Crim. App. 2009). As to the first

prong , the court held that the evidenc e must be such that a rational fa ct-finde r could c onclude that the defe ndant was d ri v ing rec klessly or dang erously while intox icated. Id

. at 256. I n Sierra , evidenc e that the defe ndant was speeding and that he made no eff ort to brake to avoid colliding with another vehicle, even though he had ampl e s p ace to do so, was sufficie nt to support the jury ’s deter mination that his driving was dang erous and rec kless. Id

. Reg arding the second prong , the court held that a rational jury could have conclude d that the defe ndant’s vehi cl e wa s ca p able of causing death or serious b o d i ly injury beca use the rec ord established that the vehicle did cause serious bodily

injury to the driver of

the other ve hicle. Id. I n t h e prese nt case , the rec ord contains ample evidenc e that appellant opera ted his vehicle in a reckless and dang erous manner. First and f oremost, there was testim ony of an actual collision betwee n appellant’ s vehicle and another vehicle with two occupa nts, as well as testimony that traff ic in the ar ea was busy , that appellant’ s blood-alcohol leve l was more tha n four times the leg al limit for intox ication, and that appellant took his ey es off the road to look at his cellular phone at the time of the collision. The jury also saw video of the responding office r administering sever al standard field sobriety

tests to a ppellant, evidenc ing appellant’ s impaired motor skills. There fore , we hold tha t the first prong of the Sierra test is me t. I t w as rea sonable for the jury to c onclude that appellant’ s driving w as dang erous a nd rec kless while intox icated. As to the second prong , the rec ord is reple te with evidenc e that others wer e actua lly endang ere d by appellant’ s act of driving his vehicle while intox icated. The jury hear d evidenc e that the collision was forc eful enoug h to throw both occupa nts of the other vehicle ag ainst their seats and

3saw photogr aphs of the vehicles involved in the collision showing the deg ree of damag e done to both

vehicles as a result of the collision. Moreove r, appellant expressly admitted in his testimony that his vehicle would have been capa ble of killing someone, g iven the speed he was trave ling and the deg ree of damag e done to the two vehicles involved. Ba sed on this evidenc e, a rational jury could conclude that appellant’ s vehicle, in the manner he opera ted it, was capa ble of causing death or serious bodily injury . We hold that the second prong of the Sierra test was met. Viewing the evidenc e in th e l i gh t m o st favor able to the verdic t, we hold that the evidenc e is sufficie nt to support the jury ’s finding that appellant’ s vehicle was, in the manner of its use, a “dea dly wea

pon.” See Dobbs v. State , 434 S.W .3d 166, 170 (Tex. Crim. App. 2014) (appe llate court views evidenc e in light most favor able to verdic t to deter mine whether any rational trier of fac t could have found essential elements of offe nse bey ond rea sonable doubt) (citing Jack son v. Virginia , 443 U.S. 307, 318-19 (1979))

. We there fore overr ule appellant’ s sole appellate issue and aff irm the trial court’ s judgme nt.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Affir med Filed: Aug ust 21, 2014 Do Not Publish

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