Polk v. State

• Decision Date: 22 May 1985
• Docket Number: No. 294-84,294-84
• Citation: 693 S.W.2d 391
• Parties: John Allen POLK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 391

693 S.W.2d 391

John Allen POLK, Appellant, v. The STATE of Texas, Appellee.

No. 294-84.

Court of Criminal Appeals of Texas En Banc.

May 22, 1985.

John Stauffer, Dallas, for appellant.

Henry Wade, Dist. Atty., and Ruth E. Plagenhoef, Bill Edie and Jim Nelson, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

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 The Dallas Court of Appeals affirmed the conviction in an unpublished opinion dated January 12, 1984.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 case 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)(11). 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...