Jose Felix Herrera v. The State of Texas--Appeal from 396th District Court of Tarrant County

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-064-CR

JOSE FELIX HERRERA APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION[1]

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In two points, Appellant Jose Felix Herrera argues that the evidence was legally and factually insufficient to support the trial court=s finding that his car was used as a deadly weapon in his conviction for intoxication assault. We affirm.

Appellant acknowledges that the trial court=s finding was correct under the current construction of Texas Penal Code section 1.07 in existing case law. See Tex. Penal Code Ann. ' 1.07 (Vernon 2003). Nonetheless, Appellant contends that the statute should be construed to provide that the evidence will not support a finding that a motor vehicle is a deadly weapon unless it shows that the defendant intended to cause death or serious bodily injury.

This court is bound by precedent from the Texas Court of Criminal Appeals holding that no intent is required for a deadly weapon finding. See Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (holding that driving an automobile in a manner capable of causing death or serious bodily injury makes it a deadly weapon); Ex parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992) (holding that a motor vehicle, in the manner of its use or intended use, is clearly capable of causing death or serious bodily injury and therefore can be a deadly weapon). Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court=s deadly weapon finding.[2] Having overruled both of Appellant=s points, we affirm the trial court=s judgment.

BOB MCCOY

JUSTICE

PANEL A: HOLMAN, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: September 27, 2007

[1]See Tex. R. App. P.47.4.

[2]Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).