Does DWI Authorize Finding Use of a Deadly Weapon In Texas ?
In Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995) the circumstance that appellant was intoxicated and operating a motor vehicle.
That circumstance, in and of itself, should not be enough to authorize a finding of the use of a deadly weapon.
We have previously held that a deadly-weapon finding is not authorized for an allegation of possession of a firearm; since the possession of a firearm is the gravamen of the offense, the mere possession cannot be used to both to charge the offense and to enhance the punishment.
See, e.g., Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992) (possession of prohibited weapon); Ex parte Petty, 833 S.W.2d 145, 145-6 (Tex. Crim. App. 1992) (felon in possession of firearm);
see also Tyra, 897 S.W.2d at 799-802 (Baird, J., concurring).
In cases of DWI, operation of a motor vehicle while intoxicated is the gravamen of the offense; the mere operation of that vehicle should not be permitted to be used to both charge the offense and enhance the punishment.
In cases which charge DWI only, and not intoxication assault or intoxication manslaughter, each case must be examined on its own facts to determine if a deadly-weapon finding is appropriate.