NO. 1447-02






Cochran, J., delivered the opinion of the Court, joined by Keller, P.J., and Meyers, Womack, Keasler, Hervey, and Holcomb, J.J. Keller, P.J., filed a concurring opinion; Johnson, J., filed a concurring opinion. Price, J., filed a dissenting opinion.


Concluding that our prior decision in Davis v. State (1) 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)


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)


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. State (18) 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 special issue included in the jury charge. (25) After rephrasing its three major modes of making an affirmative finding, (26) this Court concluded: "[w]e will no longer look to the facts of the case to permit an 'implied' affirmative finding as the court of appeals, relying on prior case law, did in this case." (27) The moral of Polk is that courts should not wade through trial evidence to divine whether a jury did or did not find, beyond a reasonable doubt, that a defendant used a deadly weapon in the commission of the offense.

On the very same day that this Court decided Polk, it also decided another deadly weapon case, Travelstead v. State. (28) In that case, the indictment charged the defendant with capital murder of the complainant "by shooting him with a gun" in the course of committing robbery. (29) The verdict form read: "We the jury, find the defendant 'Guilty of Murder' as charged in the indictment." (30) So far, so good under Ex parte Moser, (31) said this Court, but here the evidence and the application paragraph of the jury charge showed that the defendant was guilty only as a party to the murder, not as the shooter himself. (32) This Court in Travelstead thus held that deadly weapon findings must be personal to the particular defendant. "When a defendant is a party, as defined in Sections 7.01 and 7.02 of the Penal Code, to the use or exhibition of a deadly weapon, there must be a specific finding by the trier of facts that the defendant himself used or exhibited the deadly weapon." (33) Thus, under Travelstead, courts were to determine whether a defendant personally used the deadly weapon alleged in the indictment by looking to the application paragraph of the jury charge to decide whether it included a parties charge. The application paragraph was crucial to that determination.

Neither Polk nor Travelstead, however, addressed the situation in which a defendant is indicted for one offense using a deadly weapon, but found guilty of a lesser-included offense, also using a deadly weapon. That issue arose in Davis v. State. (34) And that, as the Beaumont Court of Appeals so politely suggests, is where we went wrong. In Davis, the defendant was charged with murder by shooting the complainant with a firearm, a deadly weapon per se, but convicted of voluntary manslaughter. The court of appeals had held that the jury made an "express" finding that the defendant used a deadly weapon because the manslaughter application paragraph explicitly required such a finding. (35) Nevertheless, this Court held that the jury charge was not sufficient because the verdict form itself "made no reference to a deadly weapon nor did it refer back to the indictment." (36)

In other words, under the reasoning of Travelstead and Davis, courts should look to the application paragraph to overturn a deadly weapon finding if that paragraph includes a parties charge, but courts should not look to that same application paragraph to uphold a deadly weapon finding. This is peculiar logic. Either the application paragraph is or is not an appropriate source for the trial court to consult in determining whether the jury made an "express" deadly weapon finding pertinent to the particular defendant in its verdict. Polk reasoned that the jury charge was relevant; Davis said it was not. One of them is wrong.

First, of course, Polk simply did not address the issue of a deadly weapon finding in the context of a lesser-included offense. Thus, this Court was not thinking in that context, and its three modes of addressing a deadly weapon finding simply did not take into account lesser-included offenses. Obviously, neither of the first two modes could be exactly applicable to a guilty verdict on a lesser-included offense because, as the Beaumont Court of Appeals so aptly points out, the verdict form will never read "guilty as charged in the indictment."

Second, if the jurisprudential goal is to avoid implied or uncertain deadly weapon findings in favor of clear and express findings, courts should not be required to consult two different documents (i.e., the verdict form in the jury charge and the indictment) if one document will suffice. If the jury's express deadly weapon finding could be more easily verified by simply consulting the application paragraph and the verdict, both of which are contained in the same jury charge document, so much the better. Clearly, neither the "guilty as charged" verdict form nor the indictment are crucial to an express deadly weapon finding because the third alternative set out in Polk is a special issue submitted in the jury charge, and that special issue refers to neither the "guilty as charged" verdict form nor the indictment.

We therefore conclude that Polk's purpose 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. (37) 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 Polk has been achieved. This conclusion is in accord with our earlier holdings in Ex parte McLemore (38)  and Ex parte Bracelet, (39) which had followed the original mandate of Polk by 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. (40)  

Our holding in Davis did not serve Polk's underlying 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. We therefore overrule 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.(41)


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. We reverse the judgment of the court of appeals, reinstate the deadly weapon finding, and affirm the trial court's judgment.

Cochran, J.

Delivered: May 21, 2003



1. 897 S.W.2d 791 (Tex. Crim. App. 1995).

2. Lafleur v. State, 84 S.W.3d 309 (Tex. App. - Beaumont 2002).

3. Davis, 897 S.W.2d at 793.

4. 693 S.W.2d 391 (Tex. Crim. App. 1985).

5. Id. at 393.

6. We do not suggest that reference to the application paragraph is the sole method, or even a preferred method, for making a deadly weapon finding when a person is convicted of a lesser-included offense. There is much merit in Judge Price's preference for a special "deadly weapon" issue. That is a commendable practice. We hold only that a trial judge has the authority to enter a deadly weapon finding based upon express "deadly weapon" language in the application paragraph of a lesser-included offense.

7. Davis, 897 S.W.2d at 793 (citing Polk, 693 S.W.2d at 396).

8. Lafleur, 84 S.W.3d at 312.

9. Id.

10. Id.

11. Id.

12. We granted the following grounds for review: