Section 1.07(a)(17)(A) of the Texas Penal Code defines a “deadly weapon” as “ … anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” A firearm falls within this definition, regardless of whether the firearm is loaded.


Section1.07(a)(17)(B) provides an additional subset definition of a deadly weapon as “ … anything that in the manner of its use or intended use is capable of causing death or serious bodily injury” A motor vehicle falls within this definition because it can cause death or serious bodily injury when it is operated by a person too intoxicated to control the vehicle.


Section 49.04 of the Texas Penal Code is a fact-specific statute that prohibits anyone from operating a motor vehicle while in a state of intoxication (more commonly referred to as “DWI” or “DUI”). A third conviction for a DUI offense becomes a third degree felony under Texas law.


Article 49.12 § 3g(a)(2) of the Texas Code of Criminal Procedure (not impacted by the 2017 re-codification of Article 49.12) permits a trial court to enter a deadly weapon finding in a final judgment when the State shows, by “manner of use,” that the defendant used a motor vehicle as a deadly weapon.


Thus, this evidentiary rule requirement precludes all DWI cases from having an automatic or per se deadly weapon finding attached to the final judgment. The Texas Court of Criminal Appeals (CCA) has established a legal requisite that the State show with specific on the record testimony that the defendant used the vehicle in such a manner to justify a deadly weapon finding (known as the “manner of use” rule).


Deadly Weapon Finding in DWI Case


On April 17, 2019, the CCA in Couthren v. State issued an opinion that strongly reinforced this evidentiary requisite.


In the early morning hours of June 16, 2012, Donald Couthren was driving his pickup truck down a frontage road just outside of Bryan, Texas. As Couthren was driving down the road, a pedestrian stepped in front of his pickup causing the pedestrian’s head to strike the passenger side windshield of the pickup.


Realizing the pedestrian was bleeding from his injuries, Couthren put the pedestrian in the front seat of the pickup to take him to a local hospital, but stopped at a house near downtown Bryan to exchange vehicles with his girlfriend. It didn’t take long for an altercation to break out at the residence requiring the presence of the local police. The officers immediately detected signs of intoxication with Couthren: the odor of alcohol, slurred speech, glassy/bloodshot eyes, and swaying movements.


Couthren initially told the officers he had not been drinking before his pickup engaged the pedestrian but eventually admitted he had consumed two “Four Loko” alcoholic beverages late in the afternoon the day before the pickup/pedestrian engagement. He refused to undergo field sobriety tests or to allow a blood draw. The officers then arrested him for DUI.


The officers also found the injured passenger was inebriated and incoherent—a finding the CCA embraced.


Deadly Weapon Must be Supported by Evidence


At Couthren’s eventual trial, the State sought, and secured from the jury, a finding that Couthren had used or exhibited his pickup as a deadly weapon while driving it in an intoxicated state. The jury assessed his punishment at six years imprisonment.


Couthren appealed his conviction and sentence to a state court of appeals which upheld the jury’s deadly weapon finding with this analysis:


“[Appellant] was driving after consuming two Four Loko beverages, which were determined to have a greater alcohol content than a twelve ounce can of beer. Although the speed in which [Appellant] was driving is unknown, he testified that he was traveling around thirty miles per hour on a lightly traveled highway access road. We do not know the manner in which [Appellant] was driving seconds before hitting Elbrich, if [Appellant] applied his brakes prior to the accident, or for certain, if there were other cars on the road. However, the record shows [Appellant] had been drinking by his own admission and the testimony of the two officers. [Appellant] was unable to avoid striking Elbrich at a decent rate of speed, since Elbrich’s head broke the windshield upon impact.”


The CCA reversed, finding there was “very little evidence” in the record to support the appeals court’s judgment. The CCA specifically concluded:


“In this case, we lack ‘specific testimony in the record about the manner of use’ and the available evidence does not support a conclusion that Appellant was operating his vehicle in a reckless or dangerous manner. While we must defer to the jury’s drawing of reasonable inferences that are supported by the facts, here, there are no facts to support an inference that Appellant was operating his vehicle in a manner that was capable of causing death or serious bodily injury. The court of appeals erred in upholding the deadly weapon finding absent evidence that Appellant operated his vehicle in a reckless or dangerous manner. Therefore, we hold the evidence insufficient to establish beyond a reasonable doubt that Appellant’s vehicle was used or exhibited as a deadly weapon during the offense of driving while intoxicated. We reverse only that part of the court of appeals’ judgment which affirmed the deadly weapon finding and reform the trial court’s judgment to delete it.”