No. 14-02-01246-CR
Opinion filed October 16, 2003. Do Not Publish. Tex.R.App.P. 47.2(b).
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 907,795 Affirmed
Panel consists of Chief Justice BRISTER and Justices ANDERSON and SEYMORE.
JOHN S. ANDERSON, Justice.
Appellant Jason James Gill pleaded guilty to an indictment charging him with recklessly causing the death of another "by 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. 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 "a 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 Tyra v. 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). The court stated, "[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, 813-14 (Tex.Crim.App. 1995); see also Ivie v. State, 905 S.W.2d 701, 702 (Tex.App.-Houston [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. Zarychta v. State, 44 S.W.3d 155, 162 (Tex.App. — Houston [14th Dist.] 2001, pet. ref'd). Accordingly, we overrule appellant's sole issue. We affirm the judgment of the trial court.