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Criminal Law Click here for the full text of this decision FACTS: Joe Luis Ochoa was convicted of the felony offense of driving while intoxicated. Ochoa was sentenced to 40 years’ confinement. On Dec. 7, 2000, officer Augustine Garcia of the San Antonio Police Department observed Ochoa driving a Suburban erratically. As a result, Garcia activated his on-board camera, and captured a video recording of Ochoa’s vehicle drifting over the lane markers into another lane of traffic and nearly striking another vehicle. Garcia activated his overhead lights and signaled Ochoa to pull over. After Ochoa pulled over, Garcia explained the nature of the traffic stop to Ochoa. Garcia then performed a horizontal gaze nystagmus test on Ochoa and found that Ochoa exhibited six signs of intoxication. Garcia also performed a variety of other tests which indicated that Ochoa had alcohol in his system. While Garcia was administering the tests, another officer, Mark Salazar, arrived on the scene. Salazar discovered a 16-ounce open container of beer inside Ochoa’s vehicle. Ochoa was then transported to the magistrate’s office in San Antonio, where it was determined that his blood alcohol concentration was .183. Ochoa was indicted for driving while intoxicated, third offense. At trial, the state presented multiple witnesses, a videotape from the night of the arrest and Ochoa’s prior criminal record. A jury found Ochoa guilty of the alleged offense, determined Ochoa had used a deadly weapon, and found that the enhancement allegations were true. Punishment was assessed at 40 years’ imprisonment. HOLDING: Affirmed. Ochoa’s first contention is that there is insufficient evidence to support the jury’s finding that Ochoa used his motor vehicle as a deadly weapon. When a party attacks the legal sufficiency of the evidence, the court views 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 (1979). At trial, the jury made an affirmative finding that Ochoa had used his motor vehicle as a deadly weapon. Texas Code of Criminal Procedure article 42.12 � 3g(a)(2) authorizes such a finding upon sufficient evidence “that a deadly weapon as defined in �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 . . . .” Texas Penal Code �1.07(a)(17)(B) 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.” In Mann v. State, 13 S.W.3d 89, 90 (Tex. App. Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001). Mann was prosecuted for driving while intoxicated. The Austin Court of Appeals stated that to sustain a deadly weapon finding requires evidence that other people were endangered by the defendant’s use of the vehicle and not merely a hypothetical potential for danger if others had been present. The court concluded that the finding in that case was supported by testimony that the defendant “almost hit another vehicle head-on” when he drove across the center line of the highway and forced an oncoming vehicle to take “evasive action.” Here, officer Garcia testified that there were other vehicles on the road, and that Ochoa drifted out of his lane and came “real close to striking and hitting” another vehicle. Thus, like Mann, there is evidence in the record that there were other drivers on the road who were actually endangered by the defendant’s use of his vehicle. See id. Accordingly, viewing the evidence in the light most favorable to the verdict, there is sufficient evidentce to support the deadly weapon finding in this instance. OPINION: Stone, J.; Stone, Duncan and Angelini, JJ.

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