Whatley v. State

946 S.W.2d 73, 1997 Tex. Crim. App. LEXIS 31, 1997 WL 249108

• Court: Court of Criminal Appeals of Texas
• Decided: May 14, 1997
• Docket: 154-95
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

A jury convicted appellant of solicitation of capital murder¹ and assessed punishment at forty years confinement. A deadly weapon special issue was submitted, the jury answered the issue affirmatively, and the trial court entered a deadly weapon finding. The Court of Appeals affirmed. We granted review to consider the propriety of the court of appeals’ disposition of the following issues: (1) whether the State’s notice of intent to seek a deadly weapon finding, the special issue submitted to the jury, and the trial court’s judgment are defective for failing to designate a specific physical object as the alleged deadly weapon, and (2) whether a deadly weapon finding is authorized for an inchoate offense where the deadly weapons are exhibited only to accomplices to the offense.² We will affirm.

I.

We dispense with a recitation of the facts except as they are relevant to the issues before us. The indictment in the instant cause did not allege the use or exhibition of a weapon. Before trial, the State gave the appellant written notice of its intent to seek an affirmative finding, but this notice merely alleged the “use of a deadly weapon” without further elaboration. Likewise, the special issue and the judgment merely referred to a “deadly weapon.” Appellant objected to the submission of the special issue on the ground that the deadly weapons involved in the case did not facilitate .the solicitation; he made no objection at any time to the State’s failure to specify the type of deadly weapon involved. In fact, in response to an inquiry by the trial court, defense counsel stated that he had no problem with the wording of the deadly weapon special issue.

The evidence at trial shows that appellant wanted his ex-wife’s current husband dead. On November 1, 1991, appellant hired Williamson and Williams to kill the husband. At a later date, the two accomplices returned to meet appellant to pick up a handgun. When asked at trial what was the purpose in returning to appellant’s hometown, Williamson stated that it was “To pick up a gun that he had to use in the job.” Similarly, Williams said, “Yes, we went back to pick up a revolver from him, the gun that was supposed to be used.” The evidence also shows that appellant later gave the men a shotgun because it would be much easier to hit their target with a shotgun than with the handgun.

The Court of Appeals, relying upon Hubbard v. State, 809 S.W.2d 316 (Tex.App.—Fort Worth 1991), reversed in part on other grounds, 892 S.W.2d 909 (Tex.Crim.App.1995), held that the State’s notice was sufficient and that appellant had claimed no surprise or prejudice. The court further held that the law does not require the trial court’s judgment to indicate the specific weapon used. With regard to the authorization for the finding, the court noted our statement that “all felonies are theoretically susceptible to an affirmative finding of use or exhibition of a deadly weapon,” Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App.1989), and concluded that the felony of solicitation of capital murder is no exception. The Court of Appeals held that the shotgun and handgun were used in the offense because the weapons were given to Williamson and Williams during the course of the solicitation. We now turn to the grounds raised by appellant.

II.

A.

Appellant complains that the State’s notice, the special issue, and the trial court’s judgment fail to specify the type of deadly weapon involved. Although appellant failed to object to the generality of the notice and the special issue, he contends that his case is governed by Ex parte Patterson, 740 S.W.2d 766 (Tex.Crim.App.1987). In Ex parte Patterson, we held that a complete lack of notice of the intent to seek a deadly weapon finding is fundamental error and causes egregious harm — relieving the defendant of the necessity of objecting at any stage of the trial— because the defendant is “given no prior indication that the nature of the weapon used was to be a particular issue in the case, with additional consequences vis-a-vis his liberty.” Id. at 777. However, in the present case, the State’s “general” notice did inform appellant that “the nature of the weapon used” would be an issue at trial and that appellant’s parole eligibility could be restricted as a result. Appellant’s case does not fall within the rule announced in Ex parte Patterson.

In addition to relying upon Ex parte Patterson, appellant analogizes to indictment law to argue that the failure to specify the type of deadly weapon denies him due process by depriving him of notice and preventing him from mounting an effective defense. But, we believe appellant’s failure to request such specificity defeats any due process claim that might otherwise exist. The Supreme Court has held that, in some situations, a

defendant’s due process rights are not violated absent a timely request for relief. Gray v. Netherlands 518 U.S. -, -, 116 S.Ct. 2074, 2083-2085, 135 L.Ed.2d 457, 474-475 (1996); Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 (1987). In Gray, the defendant claimed that he was denied due process because the State gave only one day’s notice of the evidence it planned to use to substantiate its charges against him. 518 U.S. at -, 116 S.Ct. at 2083, 135 L.Ed.2d at 473. The Supreme Court held that, even if the defendant’s notice of evidence claim could ever constitute a due process violation, it did not in fact constitute a due process violation in that case because the defendant did not request a continuance, which would have

remedied any prejudice he suffered. Id. at -, 116 S.Ct. at 2083-2085, 135 L.Ed.2d at 474-475. In Greer, the Court addressed whether due process was violated when a prosecutor asked a question designed to elicit impermissible evidence of postarrest silence (after Miranda warnings were given) but the trial court refused to permit an answer. 483 U.S. at 765-766, 107 S.Ct. at 3108-3109. The existence of a due process violation depended upon whether the trial was rendered “fundamentally unfair” by merely asking the question. Id. The Supreme Court held that the trial was not rendered fundamentally unfair because the trial court gave curative instructions. Id. at 766, 107 S.Ct. at 3109. The defendant claimed that the curative instructions were not specific enough, but the Court found such claim to be without merit because defense counsel did not request additional instructions. Id. at 766 n. 8, 107 S.Ct. at 3109 n. 8.

In both Gray and Greer, the defendant was in a position to request a remedy for his perceived problem. By contrast, a person in the position of the defendant in Ex parte Patterson could be completely blindsided: he may have no idea that an issue even exists concerning the use of a deadly weapon because the State has failed to give any notice of its intent to seek a deadly weapon finding. The present case is like Gray and Greer and unlike Ex parte Patterson. Appellant was not blindsided — he was notified that the use of a deadly weapon was an issue in the case, and he could have, but did not, request additional specificity. In the absence of a request, we see no fundamental unfairness in failing to specify the type of weapon involved.

As for the claim that the judgment is defective, we see nothing in Article 42.12 of the Code of Criminal Procedure to require the judgment to denote the specific type of weapon involved. See Article 42.12 § 3g(a)(2).³ Appellant relies on Turner v. State, 664 S.W.2d 86 (Tex.Crim.App.1983). In Turner, the judgment contained only a general reference to “a deadly weapon.” Id. at 88. But, the trial court also made two separate findings of deadly weapons: (1) hands and fists, and (2) a stick. Id. The trial court expressly ordered the former finding to be incorporated into the judgment but made no such order for the latter finding. Id. We held that the evidence was insufficient to support “hands and fists” as deadly weapons and that the general reference in the judgment to a deadly weapon could not be construed to include the stick. Id. at 90. Turner stands for the proposition that the express inclusion of specifically named items as deadly weapons results in the exclusion of other items not specifically mentioned.⁴ In the present case, no items were specifically named as deadly weapons in the judgment.

Appellant further argues that, absent a designation of the specific weapon, the jury’s finding cannot be subjected to appellate review for sufficiency purposes. We disagree. An appellate court may examine the record to determine whether there is sufficient evidence to support the use of any object as a deadly weapon in the case. We overrule appellant’s first ground for review.

B.

We next turn to appellant’s complaint that a deadly weapon finding is not authorized for the offense of solicitation. As the court of appeals stated, our decision in Patterson v. State recognized that all felonies are theoretically susceptible to an affirmative finding on the use or exhibition of a deadly weapon. Further, we have held that Patterson v. State “construed the phrase ‘used or exhibited a deadly weapon’ by opening it to the broadest possible understanding in [the] context of which it was reasonably susceptible in ordinary English.” Tyra v. State, 897 S.W.2d 796, 797 (Tex.Crim.App.1995). Any employment of a deadly weapon qualifies if it “facilitates the associated felony,” Id. Patterson v. State, 769 S.W.2d at 941, or its use, in itself, fulfills an element of the offense on trial, Tyro, 897 S.W.2d at 798.

We see no reason to exclude the offense of solicitation from felonies susceptible to a deadly weapon finding. The offense of solicitation penalizes someone who “requests, commands, or attempts to induce” the commission of certain offenses.⁵ Texas Penal Code § 15.03(a). Certainly, if a defendant pointed a gun at another person and commanded that person to engage in conduct constituting a capital or first degree felony, that defendant would have “used or exhibited” a deadly weapon during the offense of solicitation. This same reasoning applies to a “request” or an “attempt to induce” except that the use of a weapon is merely persuasive rather than coercive. The persuasive impact of the weapon may be a part of the request or the attempt to induce conduct by strengthening those elements of the solicitation. The offense need not be based upon words alone. Hence, merely exhibiting a deadly weapon to an accomplice during a solicitation transaction may be sufficient to support a deadly weapon finding — especially where, as in the present case, the weapons were deadly weapons per se.⁶

Accordingly, appellant’s second ground for review is overruled.

The judgments of the courts below are AFFIRMED.

OVERSTREET, J., dissents.

1 . The offense is defined in Texas Penal Code § 15.03(a) as follows:

A person commits an offense if, with intent that a capital felony ... be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a parly to its commission.

2 . These were appellant’s grounds for review two and four, but for ease of discussion we will refer to them as appellant's first and second grounds for review respectively.

3 .The Code does require the judgment to designate the deadly weapon as a firearm if there is a finding that the deadly weapon was a firearm. § 3g(a)(2). Even though the evidence in the present case shows that the deadly weapons used were in fact firearms, the deadly weapon finding made in this case did not specify that the deadly weapon was a firearm.

4 . Another difference in Turner is that the defendant objected that he had not been notified concerning the use of a deadly weapon.

5 . All three theories were contained in the jury charge in this case.

6 . In his brief before this Court, appellant argued that the solicitation was already complete before the weapons were provided. But, appellant did not raise this claim in his brief to the Court of Appeals. Instead, his only argument before that court was that a deadly weapon finding could not apply to the offense of solicitation where the deadly weapon was exhibited only to accomplices to the offense. Therefore, the timing of appellant’s use or exhibition of deadly weapons is not properly before us, and we express no opinion on the matter.

Judge Baird contends that we should address the timing issue because of some language in the Court of Appeals’ opinion. While a Court of Appeals may, in its discretion, address errors not briefed before it, Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990), there is no indication that the Court of Appeals intended such an exercise in the present case. That court did not state that it was addressing unassigned error nor does its opinion indicate in any fashion that it believed the timing of appellant’s use or exhibition of deadly weapons to be an issue in the case. Moreover, even if the Court of Appeals had addressed the issue, appellant did not raise the timing issue in his petition for discretionary review before this Court.