Trish Rudder v. Washington Mutual Bank--Appeal from 67th District Court of Tarrant County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 02-04-00360-CV

Case Date: 11/10/2005

Plaintiff: CHARLES DAVID WHITEHEAD

Defendant: THE STATE OF TEXAS (Concurring)

Preview:Antonio Delgado v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County
MEMORANDUM OPINION No. 04-03-00683-CR Antonio DELGADO, Appellant v. The STATE of Texas, Appellee From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2003-CR-2758 Honorable Sharon MacRae, Judge Presiding Opinion by: Paul W. Green, Justice Sitting: Catherine Stone, Justice Paul W. Green, Justice Sarah B. Duncan, Justice Delivered and Filed: April 28, 2004 AFFIRMED Appellant Antonio Delgado was charged by indictment for the offense of intoxication manslaughter. Delgado was charged as a habitual offender. Although he entered a plea of nolo contendere to the charged offense, Delgado entered a plea of true with regard to the enhancements. The trial judge found that Delgado had possessed a deadly weapon at the time of his offense and assessed punishment at twenty-five years' imprisonment. The trial court subsequently granted Delgado's right to appeal the deadly weapon finding. He now appeals this finding in one issue. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons: 1. In his sole issue, Delgado contends there is insufficient evidence to support the trial court's finding that he used his motor vehicle as a deadly weapon. When reviewing the legal sufficiency of the evidence, we look at the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995); Ochoa v. State, 119 S.W.3d 825, 827 (Tex. App.--San Antonio 2003, no pet.). The trial court made the affirmative finding that Delgado had used his motor vehicle as a deadly weapon. The Texas Code of Criminal Procedure authorizes such a finding upon sufficient evidence "that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during the immediate flight therefrom, and that the defendant used or exhibited the deadly weapon. . . ." Tex. Code Crim. Proc. Ann. art. 42.12 3g(a)(2)(Vernon Supp. 2004); Ochoa, 119 S.W.3d at 827. The Penal Code defines a deadly weapon as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. 1.07(a)(17)(B)(Vernon 2003). In Mann v. State, the Texas Court of Criminal Appeals affirmed a decision by the Austin Court of Appeals which held that a deadly weapon finding requires evidence that other people were endangered by the defendant's use of the

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vehicle, and not merely a hypothetical potential for danger if others had been present. Mann v. State, 13 S.W.3d 89, 92 (Tex. App.--Austin 2000), aff'd, 58 S.W.3d 132 (Tex. Crim. App. 2001); Ochoa, 119 S.W.3d at 827-28. As in both Mann and Ochoa, the evidence presented in the case at hand shows that other people were endangered by Delgado's use of his vehicle. In fact, the evidence shows that Delgado's passenger was actually killed due to this use. See id. Therefore, viewing the evidence in the light most favorable to the verdict, there is sufficient evidence to support the deadly weapon finding in this instance. We overrule Delgado's sole issue. The judgment of the trial court is affirmed. Paul W. Green, Justice Do Not Publish

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