Ex parte Beck

This is an application for writ of habeas corpus filed pursuant to V.A.C.C.P., Article 11.07, Section 2. Applicant was convicted of voluntary manslaughter after prosecution upon a murder indictment which alleged she caused the death of the complainant by shooting him with “a gun”. Upon submission of a special issue, the jury returned a finding that applicant used or exhibited a “deadly weapon” in commission of the offense. Thereafter, the trial judge entered the finding in the judgment of conviction. See V.A.C.C.P., Article 42.01(21).

Applicant now contends she was denied a fair trial by the failure of the indictment to notify her that her use of a deadly weapon would be an issue in the trial. Under Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987), accused persons are entitled to notice in some form that the use of a deadly weapon will be a fact issue at the time of prosecution, if the State intends to pursue the entry of a deadly weapon finding pursuant to Article 42.01, supra. See also Article 42.12, Section 3g(a)(2), V.A.G. C.P., [formerly Section 3f(a)(2)]; and Section 15(b).

The State argues that it is “totally illogical for the Applicant to contend that an indictment charging her with causing the death of an individual by shooting him with a gun did not notify her that the gun was an object that ‘in the manner of its use or intended use is capable of causing death or serious bodily injury.’ Texas Penal Code, § 1.07(a)(ll)(B)-”

Section 1.07(a)(ll)(B), supra, provides:

‘Deadly weapon’ means:

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

We agree with the State. It is apparent that any allegation which avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, “in the manner of its use .. .capable of causing” (since it did cause) death. Thus, applicant had sufficient notice that the weapon alleged is a deadly weapon and that her use of a deadly weapon would be an issue in the State’s murder prosecution. Thus, the concerns and individual constitutional guarantees elucidated in Ex parte Patterson are satisfied.

We are aware of the language in Ex parte Patterson dealing with the question of notice in the context of the State seeking an affirmative finding of a deadly weapon. As stated in the concurring opinion in Ex parte Patterson, the essence of the cases dealing with analagous notice situations, such as Long v. State, 36 Tex. 6 (1871), dealing with enhanced punishment for repeat offenders, is the giving of notice of “every circumstance constituting a statutory offense which would affect the degree of punishment...”. We have not required that the notice go further and specifically point out that, in the enhancement situations since Long, Subchapter D of Chapter 12 of the Penal Code will be relied on to increase the punishment range to a certain range above that ordinarily prescribed for the indicted crime. We likewise do not deem an analogous requirement necessary in this instance.

Ex parte Patterson notice, consistent with the rationale in Long, remains necessary in cases where there is no allegation of death or serious bodily injury being caused by a weapon, and there is no use of the nomenclature “deadly weapon” in the indictment, but there will be evidence at trial that the defendant used or exhibited a weapon in the commission of the offense. In this instance, where there is no allegation in the indictment which comports with the definition of deadly weapon as set out in § 1.07(a)(ll)(B), supra, the defendant is clearly not put on notice that there will be an issue in the case concerning use or exhibition of a deadly weapon.

At this juncture, it is appropriate to comment on Judge Clinton’s concurring opinion which concludes that it is Polk v. State, 693 S.W.2d 391 (1985), which is being modified or overruled. Such a notion might lead to some confusion if left unre-butted.

To understand the difference between notice and affirmative finding, it is helpful to mentally compartmentalize the “notice of a deadly weapon issue” apart from the “affirmative finding issue”. The concept of notice that there will be a deadly weapon issue in the case is the concern of today’s majority opinion and of Ex parte Patterson, supra. This notice concept is totally divorced from the “affirmative finding of a deadly weapon” body of law that has emerged with the Polk, supra, line of cases.

Affirmative finding law emerged as a child of Article 42.12 of the Code of Criminal Procedure. It is solely the result of the insertion of the word “affirmative” in that statute, and has no link to any concept of notice. In fact, nothing in Article 42.12 or in the Polk line of cases prohibits an entry of an affirmative finding without prior notice to the accused. An affirmative finding is just that: a finding that is affirmatively made. This can be accomplished by: (1) A jury’s answer to a special issue, or (2) by a finding of “guilty as charged in the indictment”. In the latter case, the indictment must also contain an averment of a deadly weapon, or a named deadly weapon per se.

Notice that there will be a deadly weapon issue in the case happens to be given, under our holding today, in the above latter case (i.e. when the indictment contains an averment of deadly weapon or a named deadly weapon per se). But the fact that common wording concerning a deadly weapon in the indictment may satisfy the affirmative finding requirement of Polk and also satisfy the notice requirement of today’s holding in no way merges the two separate and distinct bodies of law.

In sum, in the case at bar, the averment in the indictment [causing the death of the complainant by shooting him with a gun] gave appellant notice that the State would attempt to prove that the named gun was used in a manner that caused death and therefore was a deadly weapon. The notice requirement espoused in Patterson, as modified today, is therefore satisfied. By contrast, had the jury not answered a special issue that the gun was a deadly weapon, there would have been no affirmative finding of deadly weapon made, even upon the return of a verdict of “guilty as charged in the indictment”. Polk, supra. But since a special issue was so answered, the affirmative finding was properly entered, and appellant does not challenge the entry of an affirmative finding on that ground.

In conclusion, since the applicant here was clearly given notice that the nature of the weapon alleged in the indictment was an issue necessary to litigate in her trial, we deem her to have been given sufficient notice that fact would potentially be used under Article 42.01, supra., or Article 42.12, Section 3g(a)(2), supra. Language in Ex parte Patterson is overruled to the extent of conflict with this holding.

The relief requested is denied.

. What we say here is no different from reasoning that a person who is charged with capital murder has notice from that charge that he may be found guilty of murder. The latter is necessarily included in the former.

. The penal laws are fraught with offenses that have a higher penalty range when an additional fact, which is not necessary to prove the offense, is pled in the charging instrument. Although the additional fact must be pled in the indictment under the Long rationale, the effect of that fact on punishment need not be pled; see for e.g., Sec. 31.03(f), V.A.P.C., (offense is increased to the next higher category of offense if it is shown at trial that the actor was a public servant); Sec. 31.12(h), V.A.P.C., (offense is a Class B misdemeanor unless committed for remuneration, in which event it is a Class A misdemean- or); Sec. 4.03 — 4.041, Art. 4476-15, V.A.C.S., Controlled Substances Act (offense is aggravated if amount of substance is 28 grams or more); Sec. 4.042(d), Art. 4476-15, V.A.C.S., Controlled Substances Act (minimum penalty jumps from 5 years’ imprisonment and a fine not to exceed $50,000 to 10 years’ imprisonment and a fine not to exceed $100,000 if amount of substance exceeds 400 grams).

. In Polk, supra, this Court stated that verdicts will no longer "amount to” or "necessarily imply" an affirmative finding of use or exhibition of a deadly weapon. In doing so, we relied on the clear legislative intent in holding that an express, not implied, finding of a deadly weapon be made in Art. 42.12, V.A.C.C.P., "affirmative finding” cases. It is apparent from the tremendous number of appellate cases which present the issue of whether a proper "affirmative finding" was in fact made that the bench and bar have a great deal of difficulty effectuating this express finding notion. It is not our place, however, to question the wisdom of a particular requirement of the law as promulgated by our legislature, or to thwart the purpose of such a requirement merely because of its difficulty in practical application.