Davis v. State

880 S.W.2d 870, 1994 Tex. App. LEXIS 1971, 1994 WL 398722
CourtCourt of Appeals of Texas
DecidedAugust 3, 1994
DocketNo. 2-92-364-CR
StatusPublished
Cited by5 cases

This text of 880 S.W.2d 870 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 880 S.W.2d 870, 1994 Tex. App. LEXIS 1971, 1994 WL 398722 (Tex. Ct. App. 1994).

Opinion

OPINION

WEAVER, Justice.

Appellant, Donny Davis, was charged by indictment with the offense of murder. At the close of the evidence, appellant requested and received a charge on the lesser offense of voluntary manslaughter. The jury convicted appellant of the lesser offense of voluntary manslaughter and assessed his punishment at sixteen years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

[872]*872A short time after the receipt of the verdict and sentence, the State requested that the judgment be reformed to reflect an affirmative finding on the use of a deadly weapon. The trial court granted this request.

Appellant challenges his conviction through two points of error. In point one he alleges the trial court erred in adding the deadly weapon finding to the judgment, and in point two he claims the court erred in overruling his request to require a witness to testify despite the witness’s assertion of the Fifth Amendment privilege against self-incrimination. We overrule appellant’s points of error and affirm the judgment of the trial court.

Although appellant does not challenge the sufficiency of the evidence, a brief recitation of the facts is helpful in understanding the issues in this case. During the late evening hours of May 23, 1991, Leonard Lockhart and Alfonso Taylor went to Derrick Shaw’s house in East Fort Worth, Texas. Appellant and his girlfriend, Simone Williams, lived in the house with Shaw in a room they rented from Shaw. While Lockhart and Taylor were at the house, Lockhart began calling Simone names and appellant became upset. Appellant and Lockhart exchanged words and a shoving match ensued in the front yard. Shaw and Taylor separated the two men and Shaw took appellant inside the house. While he was inside the house, appellant got a gun, a .32-caliber derringer, and put it in his pocket. He and Shaw then went back outside.

There is conflicting testimony as to exactly what happened next. Taylor testified that when appellant came back outside, he and Lockhart began arguing and pushing each other again. According to Taylor, appellant then pulled his gun out and shot Lockhart in the side of the head. Taylor testified that Lockhart did not have a gun or any other weapon during the altercation. However, appellant contradicted Taylor’s testimony.

Appellant testified that when he went back outside, Lockhart had gotten a gun out of his car and began pointing it at appellant. According to appellant, it was at this time that he pulled his gun out of his pocket and shot Lockhart because he thought Lockhart was going to shoot him. After the shooting, appellant fled the scene and he was not arrested until four months later. The gun appellant used to shoot Lockhart was never recovered, nor was any other gun discovered at the scene.

In his first point of error appellant contends the trial court erred in adding a deadly weapon finding to the jury’s verdict, which did not include a deadly weapon finding. Although there was no deadly weapon issue submitted to the jury, the State claims the trial court was correct in adding the deadly weapon finding because, according to the wording of the jury charge on voluntary manslaughter, the jury necessarily found that appellant used a deadly weapon during the commission of the offense. We agree.

In Polk v. State, 693 S.W.2d 391 (Tex.Crim.App.1985), the Court of Criminal Appeals set out three instances when, although the jury is the trier of fact, the trial court may properly enter in the judgment that the jury made an affirmative finding concerning a defendant’s use or exhibition of a deadly weapon or firearm during the commission of an offense. These three instances are: (1) where the indictment specifically alleges the words “deadly weapon” in describing the weapon used and the verdict reads “guilty as charged in the indictment”; (2) where the indictment names a weapon which is per se a deadly weapon and the verdict reads “guilty as charged in the indictment”; and (3) where a special issue is submitted to the trier of fact and is answered affirmatively. Id. at 396. See also DeAnda v. State, 769 S.W.2d 522, 523 (Tex.Crim.App.1989); Hutson v. State, 843 S.W.2d 106, 107 (Tex.App.— Texarkana 1992, no pet.).

In the present case, the indictment charging appellant with murder reads in relevant part as follows:

[T]hat DONNY DAVIS ... did ... INTENTIONALLY AND KNOWINGLY CAUSE THE DEATH OF AN INDIVIDUAL, LEONARD LOCKHART, BY SHOOTING HIM WITH A DEADLY WEAPON, TO-WIT: A FIREARM, PARAGRAPH TWO: AND ... FURTHER ... THAT THE SAID DONNY [873]*873DAVIS ... DID THEN AND THERE INTENTIONALLY WITH THE INTENT TO CAUSE SERIOUS BODILY INJURY TO LEONARD LOCKHART, COMMIT AN ACT CLEARLY DANGEROUS TO HUMAN LIFE, NAMELY, SHOOT LEONARD LOCKHART WITH A DEADLY WEAPON, TO-WIT: A FIREARM, WHICH CAUSED THE DEATH OF LEONARD LOCKHART.

However, appellant was not found guilty of the offense charged in the indictment.

In addition to the charge on murder, as alleged in the indictment, at appellant’s request, the trial court included the following charge on voluntary manslaughter in the charge to the jury:

Now, if you find from the evidence beyond a reasonable doubt that the Defendant, Donny Davis, ... did then and there intentionally or knowingly cause the death of an individual, Leonard Lockhart, by shooting him with a deadly weapon, to-wit: a firearm; or if you find from the evidence beyond a reasonable doubt that the Defendant, Donny Davis, ... did then and there intentionally with the intent to cause serious bodily injury to Leonard Lockhart, commit an act clearly dangerous to human life, namely, shoot Leonard Lockhart with a deadly weapon, to-wit: a firearm, which caused the death of Leonard Lockhart, but you further find and believe from all the facts and circumstances in evidence in the case that the Defendant, in killing the deceased, if he did, acted under the immediate influence of a sudden passion arising from an adequate cause, or if you have a reasonable doubt as to whether the Defendant so acted under the immediate influence of a sudden passion arising from an adequate cause, then you will find the Defendant guilty of the offense of voluntary manslaughter. [Emphasis added.]

The jury found appellant “guilty of the offense of voluntary manslaughter.”

Although the present case does not fit squarely into any of the three categories set out in Polk, we believe that under the same rationale utilized in that case, the trial court in this case was authorized to enter in the judgment that the jury made an affirmative finding on use of a deadly weapon. There is no question that if appellant had been convicted for murder, “as charged in the indictment,” the trial court could have entered an affirmative finding on use of a deadly weapon ■under the Court of Criminal Appeals’ holding in Polk. There is also no question that if the indictment had charged appellant only with voluntary manslaughter using the same language as that used in the jury charge on voluntary manslaughter, and if the jury had found appellant guilty of this offense “as charged in the indictment,” then the trial court could have entered an affirmative finding on the use of a deadly weapon under

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Related

LaFleur v. State
106 S.W.3d 91 (Court of Criminal Appeals of Texas, 2003)
Davis v. State
897 S.W.2d 791 (Court of Criminal Appeals of Texas, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
880 S.W.2d 870, 1994 Tex. App. LEXIS 1971, 1994 WL 398722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-texapp-1994.