Gill, Jason James v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Opinion filed October 16, 2003

Affirmed and Opinion filed October 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01246-CR

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JASON JAMES GILL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris  County, Texas

Trial Court Cause No. 907,795

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

Appellant Jason James Gill pleaded guilty to an indictment charging him with recklessly causing the death of another Aby operating a motor vehicle at an unsafe speed and weaving in and out of traffic lanes.@ See Tex. Pen. Code Ann. ' 19.04(a) (Vernon 2003). After receiving a presentence investigation report, the trial court sentenced appellant to fifteen years= confinement in the Texas Department of Criminal Justice, Institutional Division, and made an affirmative deadly weapon finding. In a single issue, appellant challenges the appropriateness of the deadly weapon finding. We affirm.

FACTUAL BACKGROUND

Appellant, who subsequently admitted to being intoxicated, was driving his automobile at an extremely high rate of speed, swerving in and out of lanes of traffic on Interstate-45 when he struck the truck in which the seven-year-old victim was riding.[1] Appellant struck the truck so hard it rolled over several times and rammed into a concrete barrier. The victim had been sitting in the extended cab portion of the truck in a child=s seat and was presumably crushed by the impact.

Appellant left the scene without stopping, eventually fleeing to his home state of Illinois after abandoning his damaged automobile in Houston. After officers traced appellant to Illinois, appellant contacted Illinois authorities and provided a statement. He was subsequently charged and returned to Texas.

At sentencing, the trial court, over appellant=s objection, made a deadly weapon finding.

DISCUSSION

In a single issue, appellant challenges the deadly weapon finding. He makes two arguments: (1) a deadly weapon finding is inconsistent with an offense that contains an element of recklessness, and (2) a deadly weapon is a component of the offense of manslaughter.

Under the Texas Penal Code, a deadly weapon is Aa firearm or 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) (Vernon 2003). In Tyrav. State, the court of criminal appeals upheld the jury=s deadly weapon finding in an involuntary manslaughter case under former Penal Code section 19.05(a)(2), the precursor to present Penal Code section 19.04. 897 S.W.2d 796, 799 (Tex. Crim. App. 1995).[2] The court stated, A[I]t is reasonably clear that driving an automobile constitutes the use of it and that driving it in a manner capable of causing death or serious bodily injury constitutes it a deadly weapon.@ Tyra, 897 S.W.2d at 798.

In Walker v. State, the court of criminal appeals applied Tyra and specifically rejected an argument identical to appellant=s first argument in the present case. 897 S.W.2d 812, 813B14 (Tex. Crim. App. 1995); see also Ivie v. State, 905 S.W.2d 701, 702 (Tex. App.CHouston [14th Dist.] 1995, no pet.) (rejecting argument identical to appellant=s first argument and citing Tyra, 897 S.W.2d 796).

In Tyra itself, the court of criminal appeals rejected an argument identical to appellant=s second argument in the present case. See Tyra, 897 S.W.2d at 798 (declining to expand 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)).

This court is bound by controlling authority from the court of criminal appeals. Zarychtav. State, 44 S.W.3d 155, 162 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Accordingly, we overrule appellant=s sole issue.

We affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed October 16, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The facts are taken from the presentence investigation report.

[2] Former Texas Penal Code section 19.05(a),(b) provided:

(a) A person commits an offense if he:

(1) recklessly causes the death of an individual; or

(2) by accident or mistake when operating a motor vehicle, airplane, helicopter, or boat while intoxicated and, by reason of such intoxication, causes the death of an individual.

(b) For purposes of this section, Aintoxicated@ has the meaning assigned that term by Subsection (a), Article 6701l 1, Revised Statutes.

Act of May 29, 1987, 70th Leg., R.S., ch. 307, ' 1, 1987 Tex. Gen. Laws 1698, 1698 (since amended and renumbered, current version at Tex. Pen. Code Ann. ' 19.04 (Vernon 2003)).

Texas Penal Code section 19.04 provides:

(a) A person commits an offense if he recklessly causes the death of an individual.

(b) An offense under this section is a felony of the second degree.

Tex. Pen. Code Ann. ' 19.04 (Vernon 2003).