Hill v. State

• Decision Date: 10 January 1996
• Docket Number: Nos. 1179-94,s. 1179-94
• Citation: 913 S.W.2d 581
• Parties: Jay Mahlon HILL and, Linda Maria Lembo Hill, Appellants, v. The STATE of Texas, Appellee. & 1180-94.
• Court: Texas Court of Criminal Appeals

Page 581

913 S.W.2d 581

Jay Mahlon HILL and, Linda Maria Lembo Hill, Appellants, v.The STATE of Texas, Appellee.

Nos. 1179-94 & 1180-94.

Court of Criminal Appeals of Texas En Banc.

Jan. 10, 1996.

Robert Ford, David L. Richards, Fort Worth, for appellants.

Tanya S. Dohoney, Asst. Dist. Atty., Fort Worth, Robert A. Huttash, State's Atty., Austin, for State.

OPINION ON APPELLANTS' PETITIONS FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

Appellants, husband and wife, were charged by separate indictments with the offense of injury to a child.Tex.Penal Code § 22.04.More specifically, they were charged with "intentionally and knowingly, by omission, [causing] disfigurement and deformity, serious bodily injury and serious physical and mental deficiency and impairment to their son, Stephen Hill, a child younger than fifteen years of age, by failure to provide food and medical care...."

The State filed notice of its intent to seek an affirmative finding that a deadly weapon was used in a manner that caused Stephen's death.The chains, belts and locks that were used to prevent Stephen from obtaining food (Stephen died of starvation) were identified by the State as the deadly weapon(s).Testimony at trial showed Stephen was chained for approximately the eighteen months prior to his death.

The jury found appellants guilty of injury to a child by omission.The jury also found that appellants used a deadly weapon in the commission of the offense, and assessed punishment at 99 years' confinement in the Texas Department of Criminal Justice--Institutional Division.The court of appeals affirmed appellants' convictions and sentences.Hill v. State, 881 S.W.2d 897(Tex.App.--Fort Worth1994).

Texas Penal Code § 1.07(a)(17) defines a deadly weapon as:

(A) a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

It is clear that chains, belts and locks are not designed, made or adapted for the purpose of inflicting death or serious bodily injury, so they are not deadly weapons per se as defined under § 1.07(a)(17)(A).However, items that are not deadly weapons per se under § 1.07(a)(17)(A) have been found to be deadly weapons by nature of their use or intended use under § 1.07(a)(17)(B).Thomas v. State, 821 S.W.2d 616, 619(Tex.Cr.App.1991).The use or intended use must be capable of causing death or serious bodily injury.

"Kitchen knives, utility knives, straight razors and eating utensils are manifestly designed and made for other purposes and, consequently, do not qualify as deadly weapons unless actually used or intended to be used in such a way as to cause death or serious bodily injury within the meaning of § 1.07(a)(11)(B)."

Thomas, at 620.(Note: § 1.07(a)(11)(B) is now § 1.07(a)(17)(B)).

The State introduced evidence that the restraints used to prevent Stephen from obtaining food were used in a manner so as to cause serious bodily injury or death--namely, his starvation.¹ This evidence was constitutionally sufficient to support a rational jury's finding that appellants used a deadly weapon in the commission of the offense of injury to a child.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

Appellants assert in their fourth ground for review that an affirmative finding as to use of a deadly weapon may not be made where the predicate offense is an act of omission.Appellants are correct in their assertion that, by definition, an act of omission is a failure to act.In the present case, the State was required to prove beyond a reasonable doubt that appellants failed to provide food and medical attention to Stephen in violation of their legal duty to do so.Appellants do not contest the jury's finding of guilt as to the predicate charge of injury to a child by omission.Appellants are correct in stating that an affirmative finding of a deadly weapon requires the State to prove beyond a reasonable doubt appellants used a deadly weapon.SeeTex.Penal Code §§ 1.07(a)(11)and1.07(a)(34)(1990).

In Patterson v. State, 769 S.W.2d 938(Tex.Cr.App.1989), this Court held, in affirming the judgment of the court of appeals, that " 'used [a deadly weapon] during the commission of a felony offense' refers certainly to the wielding of a firearm with effect, but it extends to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony."Patterson, at 941.

Appellants used the chains, belts and locks to restrain Stephen to deprive him of food.In so using these objects, appellants committed an affirmative, conscious and intentional act.The conduct here goes far beyond Patterson, where we found that the defendant's mere possession--no actual employment--of a firearm, along with possession of narcotics, constituted the use of a deadly weapon.Here, we have actual use, without which the predicate offense likely would not have been possible.²

Our opinion is consistent with Patterson in that it requires the State to prove, beyond a reasonable doubt, that the charged individual employed or used a deadly weapon so as to facilitate the associated felony before an affirmative finding as to use of a deadly weapon may be made.Thus, the State must prove "use."Additionally, in the present case, as the chains, locks and associated items were not deadly weapons per se as defined in Texas Penal Code § 1.07(a)(11)(A), the State had to prove beyond a reasonable doubt that they were deadly weapons because, in the manner of their use or intended use, they were capable of causing death or serious bodily injury (as defined in Texas Penal Code § 1.07(a)(34)), per Texas Penal Code § 1.07(a)(11)(B).Appellants do not demonstrate that the State's burden of proof on the affirmative finding as to a deadly weapon is in any way affected by whether the associated felony is an act of omission or commission.Appellants' fourth ground for review is overruled.

Appellants argue, in their first and second grounds for review, that the wording of the special issue paragraph is fatally defective because it does not contain the phrase "during the commission of the charged offense."Appellants assert this phrase is mandated by Texas Code of Criminal Procedure, article 42.12, section 3(g)(a)(2).Alternatively, appellants claim the charge is erroneous and constituted egregious error under Almanza v. State, 686 S.W.2d 157(Tex.Crim.App.1984).

In Polk v. State, 693 S.W.2d 391(Tex.Crim.App.1985), we described the methods by which an affirmative finding may be made."If the indictment by allegation 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.' "Polk, at 394.See alsoRuben v. State, 645 S.W.2d 794(Tex.Crim.App.1983).In the present case, the indictment is silent on the deadly weapon issue and the State gave proper notice of its intent to seek an affirmative finding.

An affirmative finding may also be made if the trier of fact responds to a special issue submitted during the punishment phase of the trial.We do note, however, that article 37.07, section 1(a) does not mandate that the issue be submitted at the punishment phase of the trial and could be submitted during the guilt-innocence phase.Polk, at 394, fn. 3.For the purposes of article 42.12, section 3(g)(a)(2), an affirmative finding may be made if, during the punishment phase, the jury is presented with and responds in the affirmative to a special issue regarding the defendant's use or exhibition of a deadly weapon during the commission of the charged offense.

Polk, however, does not give any guidance as to what, if any, specific language must be contained in a special issue regarding a deadly weapon affirmative finding.Indeed, a special issue does not even have to be submitted for an affirmative finding to be entered if the issue is properly presented in the indictment.As the indictment in the present case does not allege use of a deadly weapon, a special issue charge was required.Polk does not, however, support appellants' assertion that omission of the phrase "during commission of the charged offense" means "the jury's affirmative answer to the special issue in the present case has no legal effect whatsoever."

This Court held in Nickerson v. State, 782 S.W.2d 887(Tex.Crim.App.1990), that "a charge must be treated in its entirety with regard to the connection and interdependence of its several parts."Nickerson, at 891.In the present case, the jury instructions on the special issue contain an application paragraph.The application paragraph describes acts which actually occurred during commission of the offense and constitute the res gestae of the offense.The jury had to find beyond a reasonable doubt that appellant committed these acts using the items alleged by the State to be deadly weapons in order to answer the special issue charge in the affirmative.In effect, the specific language of the application paragraph increased the State's burden of proof beyond what would have been created under the generic phrase "during the commission of the charged offense."Increasing the State's burden of proof only inured to appellants' benefit and cannot be said to be error, much less reversible error.SeeState v. Kinsey, 861 S.W.2d 383(Tex.Crim.App.1993)andState v. Garcia, 861 S.W.2d 386(Tex.Crim.App.1993).

Assuming, arguendo, that omission of the phrase "during commission of the charged offense" is error, it is charge error.Appellants did not object to omission of this phrase at the time of the proceedings when the court, pursuant to Article 36.14, provided appellants with a written copy of its proposed charge on the deadly weapons special issue.Errors...