Polk v. State

693 S.W.2d 391, 1985 Tex. Crim. App. LEXIS 1698

• Court: Court of Criminal Appeals of Texas
• Decided: May 22, 1985
• Docket: 294-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of attempted murder under V.T.C.A. Penal Code, § 19.-02(a)(2) by a jury; punishment was assessed at 30 years confinement in the Texas Department of Corrections. The Dallas Court of Appeals affirmed the conviction in an unpublished opinion dated January 12, 1984. We granted appellant’s Petition for Discretionary Review to review the court of appeals’ holding that the trial court did not err in entering an affirmative finding in the judgment that appellant used or exhibited a deadly weapon. 676 S.W.2d 408 (Tex.Cr.App.1984). Appellant asks this Court to reform the judgment to delete the finding since it affects the date he may be eligible for parole.

Article 42.12, § 15(b), V.A.C.C.P., provides in pertinent part:

“... [I]f the judgment contains an affirmative finding under Section 3f(a)(2) of this Article, [the prisoner] is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equals one-third of the maximum sentence or 20 calendar years, whichever is less_”

Article 42.12, § 3f(a)(2) provides in pertinent part:

“... Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of an offense ... the trial court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon that the defendant used or exhibited was a firearm, the court shall enter that finding in its judgment.”

Thus, an improper affirmative finding may prevent appellant from becoming eligible for release on parole as soon as he would have been had no finding been made.

The indictment, charge, verdict and judgment in this ease are relevant to our examination of appellant’s request. The indictment alleged in pertinent part that the defendant did:

"... with the specific intent to commit the offense of murder, attempt to cause the death of Toni Patrick, an individual, hereinafter called complainant, by knowingly and intentionally stabbing and cutting said complainant with a knife.... ”

The application portion of the charge tracked the language of the indictment. The verdict of the jury stated: “We, the jury, find the defendant guilty of the offense of attempted murder as charged in the indictment.” The trial judge entered the following finding in the judgment:

“THE COURT FINDS THAT THE DEFENDANT HEREIN USED OR EXHIBITED A DEADLY WEAPON DURING THE COMMISSION OF SAID OFFENSE.”

In order to properly address appellant’s request, we must first ascertain the meaning of the term “affirmative finding” as it appears within Art. 42.12, supra. This term has not been statutorily defined. We may, therefore, look to the common usage and legislative history of the term. Code Construction Act, Art. 5429b, V.A.C.S.; Barbee v. State, 432 S.W.2d 78 (Tex.Cr.App.1968).

“Affirmative” is defined as "... that which avers a fact to be true; that which establishes.” Black’s Law Dictionary 55 (5th ed. 1979). “Finding” is defined as: “[t]he result of the deliberations of a jury or a court. A decision upon a question of fact reached as the result of a judicial examination or investigation by a court [or] jury_” Black’s Law Dictionary 569 (5th ed. 1979). We have searched the legislative history of Article 42.12, supra, and have determined that, given the previous definitions, these words taken together were intended to mean the trier of fact’s express determination that a deadly weapon or firearm was actually used or exhibited during the commission of the offense.¹

Given this definition and intent we may now examine how, when the jury is the trier of fact, an affirmative finding may properly be made. First, the trier of facts’ verdict on the indictment may constitute an affirmative finding. In Barecky v. State, 639 S.W.2d 943 (Tex.Cr.App.1982), the defendant was charged with aggravated rape. The trial court entered upon the judgment a finding that “the said defendant committed the said offense with a deadly weapon, to-wit, a knife_” Id. at 944. Judge Tom Davis, writing for the court, stated:

“The jury found appellant ‘guilty as charged in the indictment.’ The indictment contains no mention of a deadly weapon. Neither does the court’s charge to the jury. Thus, the court entered its finding as to use of a deadly weapon in the absence of such an ‘affirmative finding’ by the appropriate trier of fact. This was improper.”

Id. at 945. Thus, if the indictment by allegation specifically places the issue before the trier of fact (i.e. “_by stabbing him with a knife, a deadly weapon....”), then an affirmative finding is de facto made when the defendant is found guilty “as charged in the indictment.” See also Ruben v. State, 645 S.W.2d 794 (Tex.Cr.App.1983).²

We pause to note that in some instances an affirmative finding will arise as a matter of law. If the trier of fact finds that a pistol has been used in the commission of the offense under the circumstances described above, then it has found that a deadly weapon has been used since a pistol is a deadly weapon per se. Williams v. State, 567 S.W.2d 507 (Tex.Cr.App.1978). Giles v. State, 617 S.W.2d 690 (Tex.Cr.App.1981), and cases cited therein at 691. This analysis would extend to other instruments catagorized as per se deadly weapons, such as a firearm, Stewart v. State, 532 S.W.2d 349 (Tex.Cr.App.1976); a 30-30 calibre rifle, Bravo v. State, 627 S.W.2d 152 (Tex.Cr.App.1982); or a handgun, Dade v. State, 622 S.W.2d 580 (Tex.Cr.App.1981).

Finally, an affirmative finding may be made if the trier of fact responds to a special issue submitted during the punishment stage of trial.³ Special issues are often submitted regarding enhancement allegations and probation eligibility. Of course, the trier of fact makes affirmative findings on the special issues submitted in the punishment stage of capital offense trials. See Art. 37.071, V.A.C.C.P. For the purposes of Art. 42.12, supra, an affirmative finding may be made if, during the punishment stage of trial, the trier of fact is presented with and responds in the affirmative to a special issue regarding the defendant’s use or exhibition of a deadly weapon or firearm during the commission of the offense.

Now that we have examined what constitutes an affirmative finding and the manner in which it is made, we may address appellant’s contention that the finding entered on the judgment in the case at bar was improper. Initially, we note one error made on the judgment in this case: the trial court improperly ascribed the affirmative finding of use of a deadly weapon to the court. Since the jury determined appellant’s guilt and punishment, it was the proper fact finder to determine whether appellant used a deadly weapon. See Thomas v. State, 638 S.W.2d 905 (Tex.Cr.App.1982), and cases cited therein at 907. A properly worded finding should have indicated that the jury had made the finding.

Reformation of this error is unnecessary, however, since we agree with appellant that the entire finding should be deleted from the judgment. The trial court entered a finding that the defendant had used or exhibited a deadly weapon. The indictment did not mention use or exhibition of a deadly weapon, nor is a knife a deadly weapon per se. Hawkins v. State, 605 S.W.2d 586 (Tex.Cr.App.1980). Also, no special issue on use or exhibition of a deadly weapon was submitted to the jury during the punishment stage of trial. Based upon this record, we find that the jury did not make the affirmative finding entered on the judgment by the trial court.

The State contends that in the instant case the trial court did not err in entering the affirmative finding since by finding the appellant guilty of attempted murder, the jury necessarily found that the knife was used as a deadly weapon. The State cites Hart v. State, 581 S.W.2d 675 (Tex.Cr.App.1979), and quotes from it: “... alleging that a knife was the weapon used in an attempt to cause death is an allegation that a knife is a deadly weapon.” Id. at 678.

The State has misconstrued the language in Hart. In that case, the defendant was charged with attempted murder and was convicted of aggravated assault, a lesser included offense. The defendant complained on appeal that his conviction was based on a jury charge that permitted a conviction on a theory not supported by the indictment. The indictment alleged that the defendant had “knowingly and intentionally with the intent to commit the offense of murder, attempt to cause the death of (complainant) by stabbing (complainant) with a knife.” Id. at 678. The defendant argued that such language did not include allegations of serious bodily injury or use of a deadly weapon as required for a conviction of aggravated assault under V.T.C.A. Penal Code, § 22.02.

We held that the indictment had set forth the allegation of serious bodily injury by the language “attempt to cause death.” We then added that alleging that the knife was the weapon used in an attempt to cause death is an allegation that the knife is a deadly weapon, citing V.T.C.A. Penal Code, § 1.07(a)(ll). Thus, our holding in Hart, supra, concerns sufficiency of indictment allegations to support convictions for lesser included offenses. It does not, however, extend to entries by the trial court regarding affirmative findings by the trier of fact and should not be extended to imply that under all circumstances a knife is a deadly weapon.

The State also cites Ex parte Moser, 602 S.W.2d 530 (Tex.Cr.App.1980) and Chavez v. State, 657 S.W.2d 146 (Tex.Cr.App.1983) as support for the trial court’s action. In Moser, the defendant was indicted for intentionally and knowingly causing the death of an individual by shooting him with a pistol. The jury found the defendant guilty as charged. The trial court included in the judgment the finding that the defendant had used a firearm during the commission of the offense and ordered the defendant confined from 60 to 120 days as a “shock probation” under Art. 42.12, § 3f, V.A.C.C.P., supra. We held that the jury’s finding that the defendant had used a pistol amounted to an affirmative finding that he had used a firearm in the commission of the offense.

In Chavez, supra, the trial court entered an affirmative finding in the judgment that the defendant had used a deadly weapon. The indictment alleged that the defendant had committed murder “by committing an act clearly dangerous to human life, namely, shooting him with a gun.” Id. at 147. The jury found the defendant guilty as charged in the indictment. The defendant contended on appeal that the indictment did not allege use of a deadly weapon, but only the use of a “gun”; hence, a jury verdict based on the indictment could not support a finding that a deadly weapon was used. Since a gun is not a deadly weapon per se, id. at 148, the issue was whether “shooting him with a gun” alleged use of a deadly weapon. Based upon the facts of the case and our holding in Hart, supra, we held that the jury’s finding on the indictment necessarily implied use of a deadly weapon. Id. at 148.

Overlooked by the reasoning employed in these cases is that an “implied” finding or an “amounts to” finding is not an express finding that a deadly weapon was used or exhibited by the defendant. Interpreting Art. 42.12. § 3f(a)(2), supra, in this manner, as we previously have, resurrects for appellant courts the very problem faced by the Texas Department of Corrections, see n. 1, that is: How is the finding to be determined? We believe the Legislature, by adding the words “affirmative finding” in response to Mr. Kyle’s quandry, meant to save all of us from sinking ever deeper into the quagmire of whether differing indictment/verdict/f act situations amounted to “implied” findings or not. Therefore we now expressly disapprove any language in Moser, supra, or Chavez, supra, that would perpetuate this practice. Where the jury is the trier of fact, the trial court may not properly enter that they have made an affirmative finding concerning the defendant’s use or exhibition of a deadly weapon or firearm during the commission of the offense unless:

1) the deadly weapon or firearm has been specifically pled as such (using the nomenclature “deadly weapon”) in the indictment (Applies where the verdict reads “guilty as charged in the indictment”. See Barecky, supra);

2) where not specifically pled in “1)” above as a deadly weapon or firearm, the weapon pled is per se a deadly weapon or a firearm; or,

3)a special issue is submitted and answered affirmatively.⁴

No longer will a verdict “amount to” or “necessarily imply” an affirmative finding of use or exhibition of a deadly weapon or firearm. We will no longer look to the facts of the case to permit an “implied” affirmative finding as the court of appeals, relying on prior ease law, did in this case.⁵ We overrule all prior holdings to the contrary.

In the instant case, the court entered an affirmative finding of use or exhibition of a deadly weapon when “deadly weapon” was not specifically pled in the indictment. The jury was also the fact finder in the punishment phase of the trial, but no special issue was submitted at the close of the punishment stage. The affirmative finding was therefore improperly entered on the judgment. In such a case, we may reform the judgment as necessary, Art. 44.24(b), V.A.C.C.P., and delete the improper finding. See Barecky, supra at 945, and cases cited therein.

Accordingly, we order that the affirmative finding entered in the judgment, to-wit: “THE COURT FINDS THAT THE DEFENDANT HEREIN USED OR EXHIBITED A DEADLY WEAPON DURING THE COMMISSION OF SAID OFFENSE” be stricken from the judgment.

The judgment of the court of appeals is affirmed. The judgment of the trial court is reformed and affirmed.

ONION, P.J., concurs in the result.

1 . Article 42.12, § 3f(a)(2) was added by amendment in 1977. The original bill comprising this amendment was introduced in the Senate as Senate Bill 152. As is usual for most bills, the record of the legislative history of S.B. 152 is incomplete: the intended meaning of a specific term is difficult to educe. We examined the transcripts of several hearings by the Senate Sub-committee on Criminal Affairs and discovered a loose basis for the use of the term “affirmative finding.”

On February 8, 1977, Jack Kyle, representing the Texas Department of Corrections (TDC), testified before the Senate Sub-committee on Criminal Affairs. He read an analysis prepared by the general counsel for the Department of Corrections which contained the following: "[o]n page 6 [of S.B. 152] we find that where a deadly weapon has been exhibited during a commission of an offense, the parole date is figured on flat time alone without consideration of good time. The problem [with S.B. 152] ... is how will the [Texas] Department of Corrections determine whether or not a deadly weapon has been exhibited. It is suggested that enactment should include a suggestion that it be alleged in the indictments, and the indictment be sent to the department, or some other suitable method. Otherwise, we cannot compute the time.” Thus, the Department was concerned that it would not be able to determine which prisoners would receive the special time computation provided for in the bill.

This problem was addressed by Senator Meier, the author of S.B. 152, on further hearings before the Senate Sub-committee on February 15, 1977, when he stated that the bill had "... an affirmative finding ... and an entry of that affirmative finding in the order of commitment so that the TDC [Texas Department of Corrections] would know.” The bill, therefore, was written so that when the trier of fact found that a deadly weapon or firearm was used in the commission of the offense, that finding would be entered on the judgment, which would then be sent with the order of commitment. Thus, the Department of Corrections would know how to compute the defendant’s time for parole purposes.

2 . Not before us today is the question of how culpability under the theory of parties comes into play in this area. Where this is the State’s theory, it may be that a special issue is required since Art. 42.12, § 3f(a)(2) calls for a finding that the defendant himself used or exhibited the weapon in question during the commission of the offense.

3 . While not mandating that the issue be submitted at the punishment phase of the trial. Art. 37.07, § 1(a) seems to indicate that this is the better practice. Expressing a clear departure from civil trial special issue verdict practice, Sec. 1(a) begins with the sentence: "The verdict in every criminal action must be general."

4 . The concurring opinion by Clinton, J., would require "notice” in the form of a formal pleading in the indictment before entry of such a finding would be proper. Such a requirement may well add an element to whatever offense was alleged, a reasonable doubt about which would lead to a not guilty verdict. Cf. Tew v. State, 551 S.W.2d 375 (Tex.Cr.App.1977); Rounsavall v. State, 480 S.W.2d 696 (Tex.Cr.App. 1972); Romay v. State, 442 S.W.2d 399 (Tex.Cr.App.1969); and Wheat v. State, 442 S.W.2d 363 (Tex.Cr.App.1969). This is a valid impediment to such a requirement. Moreover, the corpus of what we are dealing with is eligibility for parole, not what the penalty range or sentence will be. Though not rasied in this case, the “notice” requirement of the due process clause of both the 5th and 14th Amendments of the U.S. Constitution and the due course of law clause in Art. 1, § 19 of the Texas Constitution must be examined in that light when properly before us.

5 . This holding will not preclude appellate review of the facts to determine the sufficiency of the evidence to support the finding once the finding has been properly made.