No. 12-03-00167-CR
Opinion delivered: December 23, 2003. DO NOT PUBLISH.
Appeal from the 173rd Judicial District Court of Henderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DEVASTO, J.
DIANE DEVASTO, Justice.
The State of Texas (the "State") appeals the trial court's grant of a motion to quash. In its sole issue on appeal, the State argues that the trial court erred because neither case law nor statutes support its holding. We reverse and remand
Background
Nancy Boyd Hays ("Appellee") was indicted for evading arrest. The indictment alleged that, on or about November 21, 2002, Appellee, while using a vehicle, intentionally fled from Chad Sparkman, a person she knew was a peace officer who was attempting lawfully to arrest or detain her. Additionally, the indictment alleged that Appellee used or exhibited a deadly weapon, to wit: a vehicle, during the commission or immediate flight from the offense. Further, the indictment included one enhancement paragraph alleging a prior felony offense. On or about March 20, 2003, Appellee filed a motion to quash the indictment. Appellee contended that the deadly weapon allegation was duplicative and illegally increased the applicable range of punishment for the offense. Moreover, Appellee argued that, if she were to stand trial on the offense and a deadly weapon finding were made by the trier of fact, she would face an unconstitutional enhancement because the use of the vehicle is an element of the offense with its own increased punishment. After a hearing on April 14, 2003, the trial court requested briefs on the issue. Both the State and Appellee submitted briefs on Appellee's motion. On or about May 19, 2003, the trial judge granted Appellee's motion to quash. This appeal followed. Motion to Quash Indictment
On appeal, the State contends in one issue that the trial court abused its discretion in granting Appellee's motion to quash the indictment. Further, the State argues that neither Section 38.04 nor Section 12.35 of the Texas Penal Code prohibits the State from increasing the punishment of an offense. Moreover, the State contends that the element of the use of a vehicle while committing the offense of evading arrest does not encompass the finding that the vehicle was a deadly weapon. Appellee argues that the range of punishment may not be enhanced by alleging the use of a vehicle as a deadly weapon when use of that same vehicle is a necessary element of the underlying state jail felony offense. We review a trial court's ruling on a motion to quash an indictment for an abuse of discretion. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App. [Panel Op.] 1980); Manning v. State, 112 S.W.3d 740, 743 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Section 38.04 of the Texas Penal Code states that a person commits an offense if she intentionally flees from a person she knows is a peace officer attempting lawfully to arrest or detain her. Tex. Pen. Code Ann. § 38.04(a). The offense is a Class B misdemeanor. Tex. Pen. Code Ann. § 38.04(b). If the actor uses a vehicle while in flight and has not been previously convicted under this section, the offense is a state jail felony. Tex. Pen. Code Ann. § 38.04(b)(1). However, if the actor is adjudged guilty of a state jail felony and the actor used or exhibited a deadly weapon during the commission of the offense or during immediate flight following the commission of the offense, then the actor will be punished for a third degree felony. Tex. Pen. Code Ann. § 12.35(c)(1) (Vernon 2003). Theoretically, all felonies are susceptible to an affirmative finding of the use or exhibition of a deadly weapon. Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App. 1989). In Tyra v. State, the court of criminal appeals held that the phrase "used or exhibited a deadly weapon during commission of a felony offense" in Article 42.12, Section 3g(a)(2) of the Texas Code of Criminal Procedure does not mean the use or exhibition of a deadly weapon during the commission of an offense which does not otherwise require such use or exhibition. Tyra v. State, 897 S.W.2d 796, 798 (Tex.Crim.App. 1995); see Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2004). Nothing in that phrase implies that a deadly weapon must be used to commit an "associated offense," or a separate and distinct felony offense. Tyra, 897 S.W.2d at 798. Further, appellate courts have found nothing in the statutory scheme indicating that provisions regarding an affirmative deadly weapon finding are not applicable in cases where use of a deadly weapon is an essential element of the offense. See Thomas v. State, 2 S.W.3d 640, 642-43 (Tex. App.-Dallas 1999, no pet.); Martinez v. State, 883 S.W.2d 771, 774 (Tex. App.-Fort Worth 1994, pet. ref'd). Similarly, Section 38.04 of the Texas Penal Code does not contain language prohibiting a finding that a vehicle used by an individual while in flight is a deadly weapon. See Tex. Pen. Code Ann. § 38.04. Moreover, Section 12.35(c)(1) of the Texas Penal Code refers generally to an individual adjudged guilty of a state jail felony who uses or exhibits a deadly weapon during the commission of the offense or during immediate flight thereafter, making no exceptions for felonies where the use of a deadly weapon is an essential element of the offense. Tex. Pen. Code Ann. § 12.35(c)(1); see Thomas, 2 S.W.3d at 642; Martinez, 883 S.W.2d at 774. Therefore, we conclude that an affirmative finding of a deadly weapon is permitted even where the use of the instrumentality characterized as a deadly weapon is an essential element of the committed offense. See Thomas, 2 S.W.3d at 642-43; Martinez, 883 S.W.2d at 774. Consequently, the State is not prohibited from alleging that Appellee's use of the vehicle is both an element of the state jail felony offense and the third degree felony. We sustain the State's sole issue. Conclusion
The trial court abused its discretion in granting Appellee's motion to quash the indictment. Accordingly, we reverse the order of the trial court and remand for further proceedings.