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Criminal Law No. 1447-02, 5/21/2003. Click here for the full text of this decision FACTS: The appellant was charged with murder. The indictment alleged that he did then and there intentionally and knowingly cause the death of an individual, namely: Keith Walker, hereafter styled the complainant, by shooting the complainant with a deadly weapon, to-wit: a firearm. Concluding that this court’s prior decision in Davis v. State, 897 S.W.2d 791 (Tex. Crim. App. 1995), required it to do so, the court of appeals deleted the deadly weapon finding in the appellant’s manslaughter judgment. HOLDING: The court reverses the judgment of the court of appeals, reinstates the deadly weapon finding, and affirms the trial court’s judgment. In 1977, the Texas Legislature proposed adding a “deadly weapon” provision to article 42.12 of the Code of Criminal Procedure. This measure would have numerous legal consequences, including the fact 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.” Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985). During that session, the Texas Department of Corrections expressed concern to the Legislature that it would be unable to determine whether a particular inmate was subject to a deadly weapon finding if there were no express “deadly weapon” language contained in the indictment or elsewhere. Thus, the Legislature wrote the bill 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. The provision was added as Texas Code of Criminal Procedure article 42.12 �3f(a)(2). Providing a space in the written judgment form to record the factfinder’s deadly weapon finding solved the notice problem for prison authorities. That statutory provision did not, however, address the circumstances under which the trial judge should enter a deadly weapon finding in the judgment when a jury, not the judge, was the fact-finder – how, for example, would a trial judge know when the jury had, in fact, found that the defendant used or exhibited a deadly weapon during the commission of the offense? In Polk, this court addressed that problem, noting that “[t]he indictment, charge, verdict and judgment” were all relevant in determining if, when, and how a jury makes a deadly weapon finding. First, the court analyzed the term “affirmative finding,” and concluded that “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.” The trial judge could not enter a deadly weapon finding simply because some evidence indicated that the defendant had used a deadly weapon and therefore the jury’s general verdict might imply that it had believed that evidence. The court concludes that Polk’spurpose of ensuring an “express finding” of a deadly weapon is satisfied by looking to the explicit requirements of the application paragraph as well as to the indictment and verdict form. If the jury’s verdict of a lesser-included offense is based upon an application paragraph that explicitly and expressly requires the jury to find that the defendant used a deadly weapon in the commission of the offense, the underlying purpose of Polkhas been achieved. This conclusion is in accord with the earlier holdings in Ex parte McLemore, 717 S.W.2d 634 (Tex. Crim. App. 1986), and Ex parte Bracelet, 702 S.W.2d 194 (Tex. Crim. App. 1986), which had followed the original mandate of Polkby stating that “the indictment, charge, verdict, and judgment” are all relevant sources to consider in deciding whether a jury has made an “express” deadly weapon finding. The court’s holding in Davisdid not serve Polk’sunderlying purpose of ensuring that the jury make an “express” deadly weapon finding. Instead, it exalted form over substance to no discernible jurisprudential purpose. It did not explain why the verdict form is a proper portion of the jury charge to consult merely for a cross-reference to the magic words “in the indictment,” but the application paragraph of that same jury charge is not an appropriate portion to consult for the express deadly weapon finding. The court overrules Davis to the extent that it would prohibit courts from referring to the application paragraph of the jury charge to determine if the jury has made an express deadly weapon finding. In this case, the combination of: 1. the indictment which alleged “a deadly weapon: to wit, a firearm”; 2. the jury charge application paragraph of the lesser-included offense of manslaughter that required a finding, beyond a reasonable doubt, that the appellant used “a deadly weapon: to-wit, a firearm”; and 3. the jury’s verdict, that appellant was guilty of the lesser-included offense of manslaughter, contained an express finding that appellant used a firearm, which is a deadly weapon per se, to cause the complainant’s death. Therefore, the trial court did not err in entering an affirmative finding of a deadly weapon in its judgment. OPINION: Cochran, J.; Cochran, J., Keller, P.J., Meyers, Womack, Keasler, Hervey and Holcomb, JJ., join. CONCURRENCE: Keller, P.J. “I write separately to respond to the dissent’s discussion of stare decisis and of Travelstead v. State[693 S.W.2d 400 (Tex. Crim. App. 1985)]. Citing Busby v. State, [990 S.W.2d 263 (Tex. Crim. App. 1999)] the dissent contends that stare decisis concerns are especially compelling in the present case because it involves the judicial construction of a legislative enactment on which the parties rely for guidance. In Busby, we explained, ‘The interests underlying the doctrine of stare decisis are at their height for judicial interpretations of legislative enactments upon which parties rely for guidance in attempting to conform to those legislative enactments.’ Although the present case involves the interpretation of a legislative enactment, it does not involve reliance. Advance notice of the Court’s holding in the present case would have changed nothing for appellant (or any defendant in his position): no trial strategy could have prevented the assessment of a deadly weapon finding. By contrast, the rule at issue in Busby- concerning controverting affidavits to a motion to change venue – was relied upon by the State in submitting its affidavits: advanced notice of a different rule might have caused the State to proceed differently in response to the defendant’s motion.” CONCURRENCE: Johnson, J. “I agree with the dissent that the far better practice is to include in the verdict form appropriate wording about the use of a deadly weapon. However, because we assume that a jury follows the instructions given to it in the jury charge, under the facts of this case the jury explicitly found the use of a deadly weapon. I concur in the judgment of the Court.” DISSENT: Price, J. “Upon close analysis, the majority’s attempt to justify its holding is lacking both logic and skill. The procedure in Davis is simple and beneficial to the organization of the criminal justice system. Only one sentence needs to be added to the verdict form. The deadly weapon finding will be easy to find and there will be no confusion on whether there was an express finding. The trial court should be responsible for having a special issue in the jury charge relating to a deadly weapon finding. . . . “Without any basis for doing so, I believe that the majority of this Court is departing from the doctrine of stare decisis in its holding. I would affirm the judgment of the Court of Appeals and strike the affirmative weapon finding from the judgment. I respectfully dissent.”

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