stating that "any allegation which avers that 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”
How later courts described this case
- stating that "any allegation which avers that 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”
- concluding that error arises when trial court submits special issue regarding defendant’s use or exhibition of deadly weapon during commission of offense when defendant has not been provided notice that issue will be submitted
- explaining that when State seeks deadly weapon finding against defendant, it must provide notice of that fact to defendant before trial
- holding that death caused by some instrument is notice State seeks affirmative finding
Written by the judges who cited it.
The opinion
APPENDIX A In the event that you find the Defendant guilty, you will next consider if the Defendant used or exhibited a deadly weapon during the commission of the offense.
You are instructed that "deadly weapon" means
(a) a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury.
You are instructed that "Firearm" means any device designed, made or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance.
You are instructed that "serious bodily injury" means bodily injury that creates a substantial risk of death, or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the Defendant used or exhibited a deadly weapon during the commission of the offense of which you found the Defendant guilty, you will so say by your verdict, but if you have a reasonable doubt thereof, you will so say by your verdict.
*Page 534
NO. 32,730 _______
THE STATE OF TEXAS § IN THE 264TH DISTRICT COURT _____ VS. § OF NANCY MARIE BECK § BELL COUNTY, TEXAS ________________ _______
VERDICT FORMS ______________ We the Jury, having found the defendant guilty, find beyond a reasonable doubt that the defendant used or exhibited a deadly weapon during the commission of the offense of which we found the defendant guilty.
/s/ signature
FOREMAN
We the Jury, having found the defendant guilty, do not find or have a reasonable doubt thereof that the defendant used or exhibited a deadly weapon during the commission of the offense of which we found the defendant guilty.
______________________ FOREMAN *Page 535