Carin Marie Spencer v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00006-CR

CARIN MARIE SPENCER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 19th District Court
McLennan County, Texas
Trial Court No. 2022-158-C1, Honorable Vickram Deivanayagam, Presiding

August 19, 2024
MEMORANDUM OPINION 1
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Carin Marie Spencer appeals from her felony conviction for driving while

intoxicated. Through three issues, she contends: 1) the trial court lacked authority to

make the deadly weapon finding; 2) the evidence is legally insufficient to support the trial

court’s deadly weapon finding, and 3) the trial court reversibly erred in taking judicial

notice of three prior convictions referenced in an exhibit during punishment. We affirm.

1 The Texas Supreme Court transferred this appeal from the Tenth Court of Appeals. Thus, we are
bound by the latter's precedent should it conflict with ours. TEX. R. APP. P. 41.3.
Background

Purportedly being “drunker than Cooter Brown,” appellant drove her car into an

apartment building. The ensuing damage caused by the vehicle resulted in concerns

about the structural integrity of the building. Furthermore, a blood draw revealed

appellant’s blood alcohol level to be 0.193, an amount over the legal limit.

Appellant having two prior convictions for driving while intoxicated, the State again

indicted her for the same offense. The two prior convictions mentioned were also averred

in the indictment. At the close of the evidence, the jury found appellant guilty of the

offense. Thereafter, appellant had the trial court determine punishment. Upon hearing

evidence proffered, the trial court assessed a ten-year prison sentence and issued a

deadly weapon finding. Appellant then filed her appeal.

Issue One—Authority to Issue a Deadly Weapon Finding

Through her first issue, appellant argues the trial court lacked authority to make a

deadly weapon finding. Allegedly, that task fell within the province of the jury. Since the

jury was not asked to address it, the trial court could not, according to appellant. We

overrule the issue.

When, as in the current case, the trial court is the factfinder in the punishment

phase of the trial, it has the authority to make an affirmative finding. See Fann v. State,

702 S.W.2d 602, 604-05 (Tex. Crim. App. 1985) (op. on reh’g); Walker v. State, No. 05-

13-01082-CR, 2014 Tex. App. LEXIS 11869, at *5-6 (Tex. App.—Dallas Oct. 29, 2014,

no pet.) (mem. op., not designated for publication); Sullivan v. State, 248 S.W.3d 746,

752 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Thus, it had the power to render a

deadly weapon finding.

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Issue Two—Sufficiency of the Evidence Underlying Deadly Weapon Finding

By her second issue, appellant contends the evidence was insufficient to support

the trial court’s deadly weapon finding. 2 We overrule the issue.

The standard of review is that set forth in Brister v. State, 449 S.W.3d 490 (Tex.

Crim. App. 2014). We apply it here. Next, to sustain a deadly weapon finding, the

evidence must demonstrate that: 1) the object meets the definition of a deadly weapon; 3

2) the deadly weapon was used or exhibited during the incident underlying the crime; and

3) other people were put in actual danger. Id. at 494. The word “others” denotes

individuals other than the actor herself, and danger to the actor alone does not meet the

requisite standard of deadly weapon use. Id. Therefore, the reviewing court must

determine that, viewed in the requisite light, no rational trier of fact could have found these

requirements beyond a reasonable doubt. Id.

A motor vehicle is not a deadly weapon per se but can become one if used in a

manner that is capable of causing death or serious bodily injury. Id. The record must

also include evidence that others were actually endangered, not “merely a hypothetical

potential for danger if others had been present.” Id. See Smith v. State, No. 05-23-00361-

CR, 2024 Tex. App. LEXIS 3163, at *5 (Tex. App.—Dallas May 8, 2024, no pet.) (mem.

op., not designated for publication). This does not require proof of actual bodily injury or

intent to injure. Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017). Some

evidence appears of record supporting each element.

2 A deadly weapon finding precludes a court from placing an otherwise eligible individual on
community supervision and affects one’s eligibility for parole. Duran v. State, 492 S.W.3d 741, 745, n.10
(Tex. Crim. App. 2016).
3 “Deadly weapon” includes, among other things, “anything that in the manner of its use or intended

use is capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B).

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As said above, a motor vehicle may be a deadly weapon depending on its manner

of use. The manner of use here certainly rendered the vehicle appellant operated to be

one. She drove it fast enough to strike an apartment wall with enough force to dislodge

bricks, leave a deep concaved depression measuring multiple feet in circumference, and

crush the vehicle’s front bumper, grill, and hood. So driving rendered the vehicle capable

of causing serious injury to the relatively frail human body when compared with the impact

to the wall. “Bumbles bounce;”4 human bodies break.

As for individuals other than appellant actually being endangered, testimony

appears of record placing Cynthia Wells at the scene of the accident before, during, and

after its occurrence. Indeed, she was a passenger within the vehicle. A sufficiently

forceful impact causing occupants to be tossed about posed a substantial risk of serious

permanent disfigurement or protracted loss or impairment of the function of any bodily

member or organ. TEX. PENAL CODE ANN. § 1.07(a)(46) (defining serious bodily injury as

bodily injury creating a substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily member or

organ). Common sense indicates that bones could fracture, and the factfinder is not

required to dismiss common sense. Rodriguez v. State, No. 07-18-00315-CR, 2019 Tex.

App. LEXIS 2514, at *7 (Tex. App.—Amarillo Mar. 28, 2019, pet. ref’d) (noting a factfinder

“need not check . . . common sense at the door”). Indeed, merely breaking one’s nose

as a result of its striking a surface of the car’s interior would evince serious bodily injury.

See e.g., Villasenor v. State, No. 14-15-00255-CR, 2016 Tex. App. LEXIS 1160, at *4

4 Yukon Cornelius, “Rudolph the Red-Nosed Reindeer.”

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(Tex. App.—Houston [14th Dist.] Feb. 4, 2015, no pet.) (mem. op., not designated for

publication) (holding a broken nose to be serious bodily injury).

Simply put, the trial court, as factfinder, had some evidence from which it could

reasonably deduce that the car appellant drove was a deadly weapon. Thus, its finding

to that effect had the support of legally sufficient evidence.

Issue Three—Judicial Notice

Through her last issue, appellant contends the trial court erred in taking judicial

notice of prior convictions referenced in State’s Exhibit 8 during the punishment phase of

trial. We overrule the issue.

State’s Exhibit 8 was a report of Indeterminate Sentence out of the Superior Court

of California. The State asked the court to take judicial notice that “in the judgment for

the conviction out of Santa Clara County, California, in 1991, the Defendant pled true to

prior convictions for driving under the influence of alcohol in Santa Clara County in

nineteen -- in February of 1984, March of 1984 and December of 1989.” The trial court

did so, and appellant failed to object. Having so failed, she did not preserve her complaint

for review. See TEX. R. APP. P. 33.1 (requiring error to be preserved for appellate review);

Badillo v. State, Nos. 07-07-0081-CR, 07-07-0082-CR, 07-07-0083-CR, 2009 Tex. App.

LEXIS 1465, at *17-18 (Tex. App.—Amarillo Feb. 20, 2009, no pet.) (mem. op., not

designated for publication) (involving judicial notice and the failure to object).

Appellant’s citation to Kubosh v. State, 241 S.W.3d 60 (Tex. Crim. App. 2007) does

not require a contrary result. There, the Court of Criminal Appeals noted that the trial

court failed to announce on the record that it was taking judicial notice. Id. at 66. Given

those circumstances, the Court reasoned that Rule 201(e) of the Texas Rules of Evidence

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would justify appellant’s urging his complaint for the first time via a motion for new trial.

Id. Here, the trial court uttered the announcement withheld in Kubosh, thereby rendering

the opinion inapposite.

Having overruled each issue, we affirm the trial court’s judgment.

Brian Quinn
Chief Justice

Do not publish.

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