Tyra v. State

897 S.W.2d 796, 1995 Tex. Crim. App. LEXIS 49, 1995 WL 239558
CourtCourt of Criminal Appeals of Texas
DecidedApril 26, 1995
Docket036-94
StatusPublished
Cited by198 cases

This text of 897 S.W.2d 796 (Tyra v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tyra v. State, 897 S.W.2d 796, 1995 Tex. Crim. App. LEXIS 49, 1995 WL 239558 (Tex. 1995).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Appellant was convicted of involuntary manslaughter under former Penal Code section 19.05(a)(2) for accidentally or mistakenly causing the death of an individual by reason of operating a motor vehicle while intoxicated. His punishment was assessed at confinement in the penitentiary for 17 years and a fine of $5,000.00. Because the jury specifically found that appellant used or exhibited a deadly weapon during commission of the offense, the trial judge also made a notation to this effect on the judgment. See Tex.Code Crim.Proc. art. 42.12, § 3g(a)(2).

On appeal, appellant argued that a deadly weapon finding is not appropriate under the statute unless the evidence supports a conclusion that the accused actually intended to use an object in such a way as to cause serious bodily injury or death. The Fort Worth Court of Appeals rejected this argument, holding that an object need not be used as a weapon to qualify as one and that any use of an object, whether intentional or not, in such a manner as to cause serious bodily injury or death will authorize a deadly weapon finding under article 42.12, section 3g(a)(2). Tyra v. State, 868 S.W.2d 857 (Tex. App. — Fort Worth 1993). We granted appellant’s petition for discretionary review to determine whether this holding conflicts with our opinion in Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App.1989).

The felony at issue in Patterson, possession of a controlled substance, did not require, either expressly or by necessary implication, proof that the accused used or exhibited a deadly weapon. But because the ordinary English phrase “use a deadly weapon during commission of an offense” may mean “arming oneself for protection while committing the offense,” we upheld a lower appellate court’s conclusion that the evidence was sufficient to prove a deadly weapon had been “used” during Patterson’s possession of methamphetamine.

The process according to which we investigated the meaning of the phrase “used or exhibited a deadly weapon” in Patterson is routine in our jurisprudence. We proceeded from the premise that terms appearing in the statute law of this State should be “read in context and construed according to the rules of grammar and usage.” Id. at 940, quoting from Gov’t Code § 311.011(a). We then consulted a highly regarded lexicon of the English language for information about the word “use,” and found that using something often means “hav[ing] recourse to or enjoyment of [the thing].” It may also mean “put[ting] into action or service[,] applying] to advantage[,] turn[ing] to accounts or simply] utiliz[ing].” Finally, we found that using a thing can mean “earry[ing] out a purpose by means of [the thing].” Id. at 941. It was in this latter sense, we decided, that the evidence sufficiently showed Patterson to have used a deadly weapon.

Patterson thus construed the phrase “used or exhibited a deadly weapon” by opening it to the broadest possible understanding in context of which it was reasonably susceptible in ordinary English. See Vernon v. State, 841 S.W.2d 407, 409-10 (Tex.Crim.App.1992). Such an understanding includes “any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony.” Patterson, 769 S.W.2d at 941, quoting from Patterson v. State, 723 S.W.2d 308, 315 (Tex.App.—Austin 1987).

[798]*798In Ms brief before tMs Court, appellant argues that Narron v. State, 835 S.W.2d 642 (Tex.Crim.App.1992) and Ex parte Petty, 833 S.W.2d 145 (Tex.Crim.App.1992) have construed tMs language from Patterson not merely to mean that facilitation of an “associated felony” is one of the uses to which a deadly weapon can be put, but that a deadly weapon can never be “used” withm the meamng of our statutes unless it is “utilized to achieve an mtended result, namely, the commission of a felony offense separate and distinct from ‘mere’ possession.” Petty, 833 S.W.2d at 145; Narron, 835 S.W.2d at 644 (emphasis added). While tMs argument may have~soiire-superfisial_sigport in the text of those opmions, we dechne to'read Narron or Petty quite so expansively.

Each of those cases Mvolved an offense in which the mere possession of a deadly weapon was crimmalized. Responding to the argument that Patterson permits an affirmative finding of deadly weapon use on the basis of possession alone, we observed m Narron and Petty that possession of a weapon to facilitate a felony, as in Patterson, constitutes the use of that weapon, whereas mere possession of the weapon without put-tmg it to any use or purpose whatsoever does not. Accordingly, we held that a deadly weapon is not necessarily used or exhibited during the commission of offenses such as the possession of a proMbited weapon or the uMawful possession of a firearm by a felon merely because the thmg possessed is actually a deadly weapon.

Our opmions m Narron and Petty thus evince a recogmtion by tMs Court that, as a matter of semantics, the phrase “used or exhibited a deadly weapon” does not mean the same thmg, or merely the same thing, m ordmary English as “possessed a deadly weapon.” They do not stand for the proposition that the phrase “used or exhibited a deadly weapon during commission of a felony offense” necessarily means “used or exhibited a deadly weapon during commission of an offense wMch does not otherwise require the use or exMbition of a deadly weapon.”

In the rnstant cause, Tyra was convicted of involuntary manslaughter, accidentally killing a man with his pickup truck because he was too drunk to control the veMcle. Our precedents establish that anything, Mcluding a motor vehicle, which is actually used to cause the death of a human bemg is a deadly weapon. Ex parte McKithan, 838 S.W.2d 560, 561 (Tex.Crim.App.1992). This is necessarily so because a thing which actually causes death is, by defmition, “capable of causing death.” Penal Code § 1.07(a)(ll)(B) (now § 1.07(a)(17)(B)); Ex parte Beck, 769 S.W.2d 525, 526-27 (Tex.Crim.App.1989). It follows that Tyra’s pickup was undoubtedly a deadly weapon in the instant cause.

Likewise, Patterson holds that “use” means havmg “recourse to or enjoyment” of a tMng. It also means putting a thing “Mto action or service.” When the word “use” is understood in either of these senses, according to the rules of grammar and usage as Patterson counsels, and the term “deadly weapon” is understood as defined by the Legislature, it is reasonably clear that driving an automobile constitutes the use of it and that drivmg it in a manner capable of causing death or serious bodily Mjury constitutes it a deadly weapon. The fact that involuntary manslaughter under former Penal Code section 19.05(a)(2) is a felony offense wMch, therefore, always involves the use of a deadly weapon does not change the meamng of these words. There is simply nothing m the phrase “used a deadly weapon” to imply that it must always be used to commit an “associated offense.”

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Bluebook (online)
897 S.W.2d 796, 1995 Tex. Crim. App. LEXIS 49, 1995 WL 239558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tyra-v-state-texcrimapp-1995.