The opinion
JACK CARTER, Justice,
concurring.
The argument of Christopher Charles Brown is that the State has been allowed to enhance the punishment by proving a motor vehicle was used as a deadly weapon when the underlying offense also requires proof that a vehicle was used. Proof of these two requirements is not the same.
The misdemeanor offense of evading arrest or detention is committed if the party flees; it becomes a state jail felony when the party uses a motor vehicle. Tex. Penal Code Ann. § 38.04 (a), (b)(1). 12 Theoretically a motor vehicle may be used in many ways — even if it is driven in a safe, uneventful manner, the offense would be a state jail felony. The allegation that the vehicle was used or exhibited as a deadly weapon requires much more proof. Since a motor vehicle is not manifestly designed to inflict injury, there must be proof that in the manner of its use or intended use, it was capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07 (17) (Vernon Supp.2009). As we have recently held, proof that a vehicle is capable of causing serious bodily injury requires a showing of actual danger such as another person being present at the same time and place when the defendant drove in a reckless manner. Drichas v. State, 219 S.W.3d 471, 476 (Tex.App.-Texarkana 2007, pet. ref'd).
In this case, proof that Brown merely used a vehicle, in some manner, when he *494 fled from the peace officer would classify the offense as a state jail felony, but would not be sufficient proof that the vehicle was being used as a deadly weapon. I concur with the majority opinion.
. See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385 , 4385-86 (prior version at Tex. Penal Code Ann. § 38.04 (Vernon 2003)).