Facts:

Driver one, speeding (60-70 in 35 mph, stated by witness on unit video). Weaving in and out of traffic. Blows through stop light and t-bones another vehicle.

Passenger is transported to ER, apparent concussion and bruises. No followup meds yet (doesn't live here.)

Driver one leaves scene. So I have FSTRA. And when he is found, very shortly after accident, he is drunk.

Okay, so I know I have a DWI 2nd (actually County Attorney has that.) On the facts in the file I don't think I have an intox assault, but does anyone think I have an aggravated assault with a deadly weapon?

So the guy recklessly caused bodily injury to another for Assault under 22.01(a)(1)

And then go on to Aggrevated Assault because of what?

Is it serious bodily injury under 22.02(a)(1) or the car is a deadly weapon under 22.02(a)(2) ?

Without followup on the condition of the injured person it might be hard to go with serious bodily injury.

So car is a deadly weapon then? Driven by a drunk person at twice the speed limit?

As a layman I really don't have a clue what the case law says but it sure does seem like bad behavior above and beyond simple DWI.

It seems to be at least Deadly Conduct?

22.05. DEADLY CONDUCT. (a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

I'd use the vehicle as a deadly weapon

Look at Mann v State 58 SW3d 132 (Tex.Cr.App. 2001). I think you have a better case than they did in Mann (in which the defendant crossed the center line and almost struck antoher vehicle, causing no injuries) and CrimApp says DW was appropriate finding in that case.

You might look at Burke v. State, 80 S.W.3d 82, 91
(Tex.App.-Fort Worth 2002)regarding proving up an agg assault:

Specifically, the State would have had to prove beyond a reasonable doubt that Appellant was aware of but consciously disregarded a substantial and unjustifiable risk that his actions in failing to stop at a red light while operating a motor vehicle would cause serious bodily injury to another. Reckless conduct involves conscious risk creation.FN35 Consequently, the allegation that Appellant acted recklessly in failing to stop at a red light necessarily implies that Appellant was aware that the light was red when he drove his car into the intersection. The indictment did not allege that Appellant was reckless by driving while intoxicated.

quote:

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Originally posted by david curl:
Burke v. State:
the allegation that Appellant acted recklessly in failing to stop at a red light necessarily implies that Appellant was aware that the light was red when he drove his car into the intersection.

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I disagree with the court on this one. While deliberately driving through a red light is certainly reckless, I also think that driving through a lighted intersection without looking to see whether the light is red is also reckless, not merely negligent. In other words, I don't think the defendant escapes liability by saying "I was unaware of the light being red" because he was still aware of and consciously disregarded a substantial and unjustifiable risk by driving into an intersection without first finding out whether the light was red or not.