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Phillips v. State

Court of Appeals Seventh District of Texas at Amarillo
Jun 14, 2017
No. 07-16-00237-CR (Tex. App. Jun. 14, 2017)

Opinion

No. 07-16-00237-CR

06-14-2017

DAVID TRUMAN PHILLIPS, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE


On Appeal from the 359th District Court Montgomery County, Texas
Trial Court No. 15-05-05325-CR , Honorable Kathleen Hamilton, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant David Truman Phillips appeals his conviction for driving while intoxicated, third or more offense. Through a single issue, he contends that the evidence was insufficient to support a finding that he used his motorcycle as a deadly weapon during the commission of the offense. We affirm.

Because this appeal was transferred from the Ninth Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this court. See TEX. R. APP. P. 41.3.

Background

Two DPS troopers observed appellant passing two vehicles on his motorcycle while exceeding the speed limit at midnight. Apparently, he was travelling 66 mph in an area having a posted 55 mph speed limit. After being stopped, appellant eventually admitted to having drunk multiple beers at different bars that evening. Furthermore, his "speech was a little bit slow," "there was a bit of a delay when answering [the trooper's] questions," and the odor of alcohol was detectible on his breath.

The other trooper present at the scene agreed that appellant's actions, in passing two cars at the same time in a no-passing zone, was dangerous. So too did he testify that based on his six years of training and experience as a DPS Trooper and his DWI investigations, the motorcycle appellant operated that night was a deadly weapon. The investigations conducted by the trooper included motorcycle accidents resulting in both serious injury and fatality.

Issue - Deadly Weapon Finding

Again, appellant contends that there was insufficient evidence to support the finding that he used or exhibited a deadly weapon when driving while intoxicated. Allegedly, the manner in which he drove was neither reckless nor dangerous. We disagree and overrule the issue.

The pertinent standard of review is described in Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010), and Brister v. State, 449 S.W.3d 490 (Tex. Crim. App. 2014). We apply it here.

Next, a "deadly weapon" is "anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or . . . 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)(A) & (B) (West Supp. 2016). To sustain a deadly-weapon finding, the evidence must demonstrate that: 1) the object meets the definition of a deadly weapon; 2) the deadly weapon was used or exhibited during the transaction on which the felony conviction was based; and 3) other people were put in actual danger. Brister v. State, 449 S.W.3d at 494. "Others" connotes individuals other than the actor himself. Id.

By statute, a motor vehicle is not a deadly weapon per se, but it can be one if it is used in a manner that is capable of causing death or serious bodily injury. Id.; see Moya v. State, 204 S.W.3d 509, 510 (Tex. App.—Amarillo 2006, no pet.) (describing a deadly weapon as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury and stating that motor vehicles may fall within the category depending on their manner of use). Factors to consider include such things as the operator's 1) intoxication, 2) speed, 3) compliance with traffic signs, signals and rules, and 4) control of the vehicle. Hoff v. State, No. 09-15-00188-CR, 2016 Tex. App. LEXIS 11315, at *21-22 (Tex. App.—Beaumont Oct. 19, 2016, no pet.) (mem. op., not designated for publication).

To reiterate, appellant did not contest the fact of his intoxication. This may be because evidence indicated that he had a blood-alcohol content of .14.

Next, while no one testified about the model, size or weight of the motorcycle appellant rode, the video of the stop captured its image. It was large with crash bars, dual exhaust pipes and saddle bags. So too was its motor sufficiently powerful to carry an adult at a speed of at least 66 mph.

The video also depicted what appeared to be precipitation on the windshield of the patrol unit immediately before the stop occurred. The moisture was periodically removed by the unit's windshield wipers.

Furthermore, appellant's physical and mental faculties reasonably could be viewed as impaired while he operated the machine, as evinced by his slow speech, delayed answers, and periodic swaying as the trooper administered sobriety tests. Appellant also told the troopers that his "equilibrium" was impaired due to a broken back and that he had a broken left ankle.

That his actions illustrated a lack of compliance with traffic laws is also clear. Again, he was passing multiple vehicles at one time at an excessive rate of speed at midnight in a no-passing lane. His passing other vehicles also indicates that he was not alone on the road. Indeed, the sight of numerous cars driving up and down the road before and during the stop was also captured on the video. The presence of these other vehicles on the road also belies appellant's observation that "[n]o one was remotely endangered by [his] motorcycle when he committed the felony offense of driving while intoxicated."

A large motorcycle speeding down the road at 66 mph in sporadic precipitation with an adult suffering from impaired physical and mental faculties, a broken ankle and lost equilibrium could reasonably be viewed as a projectile capable of causing serious injury, if not death, to others on the road. This may be why one or more troopers deemed 1) appellant's operation of the motorcycle, under those circumstances, as dangerous and 2) the motorcycle itself, under the circumstances, as a deadly weapon.

The foregoing constitutes some evidence upon which a rational jury could conclude beyond reasonable doubt that the motorcycle was capable of causing death or serious bodily injury, in its manner of use. See Moya v. State, supra (holding that the use of a tractor was a deadly weapon based on the fact appellant was intoxicated, the vehicle was large enough to cause damage to another vehicle, appellant operated the tractor on a public roadway, and appellant entered into a lane of oncoming traffic resulting in a wreck). So, sufficient evidence appears of record to support the deadly-weapon finding.

Accordingly, we affirm the judgment of the trial court.

Brian Quinn

Chief Justice Do not publish.


Summaries of

Phillips v. State

Court of Appeals Seventh District of Texas at Amarillo
Jun 14, 2017
No. 07-16-00237-CR (Tex. App. Jun. 14, 2017)
Case details for

Phillips v. State

Case Details

Full title:DAVID TRUMAN PHILLIPS, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE

Court:Court of Appeals Seventh District of Texas at Amarillo

Date published: Jun 14, 2017

Citations

No. 07-16-00237-CR (Tex. App. Jun. 14, 2017)