Lafleur v. State

Decision Date21 May 2003
Docket NumberNo. 1447-02.,1447-02.
Citation106 S.W.3d 91
PartiesMichael Winn LAFLEUR, Appellant, v. The STATE of Texas.
CourtTexas Court of Criminal Appeals

Harold J. Lane, Jr., Beaumont, for Appellant.

Jeffrey L. Van Horn, First Asst. State's Atty., Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

COCHRAN, J., delivered the opinion of the Court, joined by KELLER, P.J., and MEYERS, WOMACK, KEASLER, HERVEY, and HOLCOMB, J.J.

Concluding that our prior decision in Davis v. State1 required it to do so, the court of appeals deleted the deadly weapon finding in appellant's manslaughter judgment.2 In Davis, we held that "deadly weapon" language in a lesser-included manslaughter application paragraph (when a defendant is indicted for committing murder with a specific deadly weapon) is not sufficient to support a deadly weapon finding when the jury returns a guilty verdict on the lesser-included offense if the verdict form does not explicitly refer to the original indictment.3

Although we reaffirm our decision in Polk v. State,4 holding that there must be an express finding of a deadly weapon when the jury is the factfinder,5 we now conclude that our reasoning in Davis was flawed. Thus, we hold that courts may look to the application paragraph of a lesser-included offense to determine if the express deadly weapon allegation in that portion of the jury charge matches the deadly weapon allegation in the indictment for the charged offense. If so, the trial court may enter a deadly weapon finding in the judgment based upon the jury's verdict of guilt on the lesser-included offense.6

I.

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.

At trial, the State and defense agreed that appellant shot and killed Keith Walker with a firearm. The contested issues were whether appellant: 1) fearing for his life, shot the victim in self-defense because Mr. Walker had threatened him with a knife; and 2) recklessly or negligently, rather than intentionally or knowingly, caused the victim's death. The trial judge instructed the jury on self-defense as well as on the lesser-included offense of manslaughter. The jury charge application paragraph for manslaughter read:

Therefore, if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about May 31, 1998, the defendant Michael Winn Lafleur, did then and there recklessly cause the death of an individual, namely: Keith Walker, hereafter styled the complainant, by shooting complainant with a deadly weapon, to-wit: a firearm, you shall find the defendant guilty of the lesser included offense of Manslaughter.

The jury's verdict read:

WE, THE JURY, find the defendant NOT GUILTY of Murder as charged in the indictment, but GUILTY of the lesser included offense of Manslaughter.

The jury then sentenced appellant to eight years imprisonment. The trial judge entered an affirmative finding in the written judgment that appellant used a deadly weapon.

On appeal, appellant complained that the trial judge erred in entering a deadly weapon finding. The Beaumont Court of Appeals noted that this Court had held, in Davis v. State, that a trial court is authorized to enter a deadly weapon finding:

where the jury has 1) found guilt as alleged in the indictment and the deadly weapon has been specifically plead as such using "deadly weapon" nomenclature in the indictment; 2) found guilt as alleged in the indictment but, though not specifically plead as a deadly weapon, the weapon plead is per se a deadly weapon; or 3) affirmatively answered a special issue on deadly weapon use.7

The court of appeals noted that neither the first nor second option was exactly applicable because

[h]ere, the jury verdict does not say "guilty of manslaughter as alleged in the indictment." It could not have. There was no indictment for manslaughter; nor did there have to be. Manslaughter is a lesser-included offense of murder.8

The court of appeals stated that the manslaughter application paragraph included an express deadly weapon assertion, but it also noted that in Davis, this Court had held that similar "firearm" and "deadly weapon" language in a lesser-included manslaughter application paragraph was merely an "implied" finding, not an "express" finding.9 The court of appeals expressed its concern about the logic of Davis:

Respectfully, we question how the application paragraph's language regarding the use of the deadly weapon constitutes only an implied deadly weapon finding rather than an express finding. In following the trial court's instructions in the charge, the jury convicted the defendant of the lesser-included offense by finding that the expressly stated requirements of the application paragraph existed beyond a reasonable doubt.10

That is, the jury in this case could not have found appellant guilty of manslaughter without also expressly deciding that he used a firearm, a deadly weapon per se.

Nonetheless, the court of appeals felt constrained to follow Davis and stated it was "required to conclude the trial court erred in including a deadly weapon finding in the judgment."11 We granted review to re-examine the reasoning in Davis and Polk.12

II.

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."13 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.14

The provision was added as article 42.12, Section 3f(a)(2).15 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 factfinder — 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.16 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."17 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. We quoted language from Barecky v. State18 to illustrate the problem with implied deadly weapon findings:

"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."19

Thus, when neither the indictment nor the jury charge contained any "deadly weapon" language, a trial court could not enter an "implied" deadly weapon finding based solely upon its own assessment of the evidence and a general "guilty" verdict. Because the trial `judge was not the factfinder, it did not have the authority to "find" implied facts that the jury did not expressly find.

That was what happened in Polk. In that case, the indictment alleged that Mr. Polk attempted to cause the death of the complainant by stabbing and cutting the complainant with a knife.20 The application paragraph of the jury charge tracked the language of the indictment but failed to say anything about a deadly weapon.21 The verdict form, on the other hand, simply stated that the jury found Mr. Polk guilty "as charged in the indictment." Thus, none of the three possible sources of an express deadly weapon finding — the indictment, the jury charge, or the verdict form — contained any deadly weapon language. Because a knife is not a deadly weapon per se and Mr. Polk's jury might have concluded that this particular knife was not, in fact, a deadly weapon, there was no way for the trial judge to determine with any certainty what, exactly, the jury had found regarding Mr. Polk's use of the knife.

To assist the bench and bar, in Polk this Court "examine[d] how, when the jury is the trier of fact, an affirmative finding may properly be made."22 First, "the trier of facts' verdict on the indictment may constitute an affirmative finding" when the indictment itself alleges a deadly weapon.23 Second, sometimes "an affirmative finding will arise as a matter of law" — as in when the instrument used is a per se deadly weapon, such as a pistol or a firearm.24 Third, the jury may make an affirmative finding through a deadly weapon...

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23 books & journal articles
  • Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2021 Contents
    • 16 Agosto 2021
    ...enter an affirmative deadly weapon finding in the judgment based on a verdict of guilty to the lesser-included offense. Lafleur v. State, 106 S.W.3d 91 (Tex. Crim. App. 2003). Evidence that a defendant personally used or exhibited a deadly weapon is not necessarily required when the defenda......
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    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2015 Contents
    • 17 Agosto 2015
    ...enter an affirmative deadly weapon finding in the judgment based on a verdict of guilty to the lesser-included offense. Lafleur v. State, 106 S.W.3d 91 (Tex. Crim. App. 2003). Evidence that a defendant personally used or exhibited a deadly weapon is not necessarily required when the defenda......
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    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2017 Contents
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    • 17 Agosto 2016
    ...enter an affirmative deadly weapon finding in the judgment based on a verdict of guilty to the lesser-included offense. Lafleur v. State, 106 S.W.3d 91 (Tex. Crim. App. 2003). Evidence that a defendant personally used or exhibited a deadly weapon is not necessarily required when the defenda......
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