Ex Parte McLemore

717 S.W.2d 634, 1986 Tex. Crim. App. LEXIS 835

• Court: Court of Criminal Appeals of Texas
• Decided: October 1, 1986
• Docket: 69619
• Status: Published

Opinions

This proceeding involves an application for a writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P.

Applicant was indicted for the offense of murder. On May 11, 1983, a jury convicted applicant of voluntary manslaughter and assessed his punishment at twelve years' confinement in the Texas Department of Corrections. Applicant did not appeal his conviction.

Applicant is seeking relief from an affirmative finding by the trial court that he used a deadly weapon during the commission of the offense. That finding affects the amount of time he must serve in confinement before he is eligible for parole under Article 42.12, Sec. 15(b), V.A.C.C.P., in effect at the time of the 1982 offense and applicant's 1983 conviction. Applicant contends that the finding was erroneous because such finding, if any, should have been made by the jury and not the court. Applicant requests that he be discharged or, alternatively, that the finding be deleted.

The indictment in this cause alleged in pertinent part that applicant did "intentionally and knowingly cause the death of an individual, Ella Faye McLemore, by shooting her with a handgun,. . . ." The jury was the trier of facts and decided both the guilt of applicant and his punishment. In the charge on voluntary manslaughter the jury was instructed in pertinent part as follows:

"If you find . . . the Defendant, DAVID McLEMORE, did intentionally or knowingly cause the death of Ella Faye McLemore by shooting her with a handgun, but you further find . . . sudden passion arising from an adequate cause, then you will find the Defendant guilty of Voluntary Manslaughter."

The verdict returned by the jury states that: "We, the Jury, find the Defendant, DAVID McLEMORE, Guilty of Voluntary Manslaughter." In the judgment rendered by the trial court, the following finding was entered: "The Court made an affirmative finding that a deadly weapon was used."

Polk v. State, 693 S.W.2d 391 (Tex.Cr.App. 1985), instructs that there are three situations where an affirmative finding may properly be made. In the second situation delineated, an affirmative finding arises as a matter of law.Id. at 394. That occurs where the weapon pled is a deadly weapon per se but is not specifically pled as such (by using the nomenclature "deadly weapon"). When the trier of fact finds that a handgun was used, it finds that a deadly weapon was used. The additional finding occurs because a handgun is a deadly weapon per se. Ex parte Campbell,716 S.W.2d 523 (Tex.Cr.App. 1986); Dade v. State,622 S.W.2d 580, 581 (Tex.Cr.App. 1981).

The question, then, is whether the jury in the instant cause found that a handgun was used. The jury found applicant guilty of the lesser included offense of voluntary manslaughter. That verdict means that the jury believed that applicant caused the death of an individual. In both the indictment and the application portion of the court's charge, the instrumentality of death was a handgun. Therefore, the jury found that a handgun was used. An affirmative finding of the use of a deadly weapon was made by the jury.

However, it is necessary to reform the judgment. The trial court improperly ascribed the finding of use of a deadly weapon to the court. When the jury is the trier of fact, it is the jury's duty to determine if a deadly weapon was used.Thomas v. State, 638 S.W.2d 905, 907 (Tex.Cr.App. 1982). Accordingly, the judgment is reformed to indicate that the jury made a finding that "the defendant used or exhibited a deadly weapon during the commission of said offense." As reformed, the relief prayed for is denied.

It is so ordered.

TEAGUE and MILLER, JJ., dissent.