# Ex Parte Beck > Court of Criminal Appeals of Texas · March 22, 1989 · 769 S.W.2d 525 URL: https://www.frixlaw.com/law-library/cases/9660662 ## Case - **Full name:** Ex Parte Nancy Marie Beck. - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 22, 1989 - **Citations:** 769 S.W.2d 525; 1989 Tex. Crim. App. LEXIS 58; 1989 WL 24597 - **Precedential status:** Published - **Opinion:** Concurrence by Clinton - **Judges:** Teague, Miller, Clinton, Campbell - **Cited by:** 156 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9660662 ## How later opinions describe it (automated extraction) - 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 ## Opinion text CLINTON, Judge, concurring. I feel compelled to comment in defense of the much maligned, and I fear, little understood opinion of the Court in Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987). First, it is Polk v. State, 693 S.W.2d 391 (Tex.Cr.App.1985), which I believe the Court is qualifying today, at least as much as Patterson, albeit sub silentio. In Polk, supra, the Court rejected a string of cases which had held that a jury verdict of “guilty as charged in” an indictment, alleging that death or serious bodily injury resulted from use of a weapon, “necessarily included” an affirmative finding that a deadly weapon was used. Thus were overruled, inter alia, Ex parte Moser, 602 S.W.2d 530, 533 (Tex.Cr.App.1980) (“The only theory of guilt submitted in the court’s charge was that the applicant intentionally or knowingly caused the death of the individual by shooting him with a pistol. The jury found the applicant ‘guilty of murder as charged in the indictment.’ In these circumstances, the verdict necessarily included a finding that the applicant committed murder by shooting the individual with a pistol. Therefore this verdict must amount to an affirmative finding that the applicant used a firearm in the commission of the offense.”); and Chavez v. State, 657 S.W.2d 146, 147 (Tex.Cr.App.1983) (“[I]n the present case, the indictment alleges ‘[defendant caused the death of the deceased by] ... shooting him with a gun.’ We hold that this allegation charges murder under V.T.C.A. Penal Code, § 19.02(a)(2) and charges the use of a deadly weapon.” (Emphasis added.)). If an allegation that a weapon was used, and that use of that weapon resulted in death, is not such that a jury verdict thereon would “amount to” an affirmative finding, though a verdict upon an indictment alleging a deadly weapon per se, or which expressly labels the weapon used as “deadly,” would, it can only be because the for *529 mer allegation does not constitute a sufficient pleading so that we may know the issue has even been litigated. In other words, our holding in Polk necessarily rejected the conclusion in Chavez, supra, that an indictment such as the one in the instant case actually “charges the use of a deadly weapon.” Otherwise, a jury finding of guilt “as alleged in the indictment” would constitute an affirmative finding in this context as well. Accordingly, in Ex parte Patterson, supra, in which death was allegedly caused “with a knife,” we observed: “Applicant’s jury found him guilty of murder ‘as charged in Count 2 of the indictment.’ But in Polk itself we expressly rejected the notion, to be found in, e.g., Chavez v. State, [supra], that an ‘affirmative’ finding could be derived by ‘necessary implication’ from a jury verdict of ‘guilty as charged’ in an indictment pleading facts such as these. That such an indictment will not support an affirmative finding must also mean it does not serve to provide notice that the nature of the weapon will be, in and of itself, a specific issue in the case.” Id., at 777, n. 12. How can it possibly mean anything else? Without delving into rationale, the holding of Ex parte Patterson, supra, is simply this: In any situation in which, under our opinion in Polk, supra, a jury verdict of “guilty as alleged in the indictment” would not “amount to” an affirmative finding of use of a deadly weapon, such that submission of a special issue on that question would be necessary to authorize entry of an affirmative finding on the judgment, some kind of pleading is required by due course of law. Otherwise, submission of the special issue to the factfinder (or worse, entry on the judgment of the affirmative finding, where punishment is to the court), will be the first formal notice to the accused that the issue was even of consequence in the litigation — after the fact. 1 To the extent that it backs away from this holding today, the majority has concomitantly rejected its holding in Polk, supra, although not admitting as much. The majority apparently concludes that notice will be found sufficient anytime an indictment contains language “which comports” with the definition of deadly weapon in V.T.C.A. Penal Code, § 1.07(a)(ll)(B). I cannot fathom how that can be so when a verdict premised upon that same indictment does not necessarily “amount to” an affirmative finding, under Polk . I must conclude, therefore, that insofar as Polk overruled Moser and Chavez , both supra, Polk is now, in turn, overruled. If this is not the true tenor of the majority opinion, then I fear what was once perceived to be a legal “quagmire” with respect to whether an affirmative finding has been made, 693 S.W.2d at 396 , may be transmogrified into a veritable morass with respect to whether an affirmative finding has been pled. Second, the majority believes it necessary to observe that “the effect” of an affirmative finding of use or exhibition of a de'adly weapon is not a part of the pleading which Patterson requires. I agree entirely with this observation, but would not think it necessary. 2 To the extent the opinions *530 today serve to clarify a misunderstanding of the opinions in Patterson on this score, I welcome it. With these comments I join the judgment of the Court. CAMPBELL, J., joins in this opinion. . Thus we exclaimed in Patterson: "At least where the indictment fails to allege that a weapon was used or exhibited which is alleged to be, or is per se, a deadly weapon, ... the accused has no way of knowing that such a finding may even be made until the special issue required in these circumstances by Polk, supra, has been submitted to the jury, or the trial court, acting as factfinder, see Ex Parte Webster, 704 S.W.2d 327 (Tex.Cr.App. 1986), enters the affirmative finding in the judgment!” 740 S.W.2d at 774 . (All emphasis is mine throughout unless otherwise noted.) . At the outset the Patterson court identified the issue as “a question expressly left open in Polk v. State, [supra), viz: what notice, if any, must appear in an indictment to support submission of a special issue to the jury as to whether a deadly weapon was used or exhibited during the commission of the alleged offense." Id., at 767. The facts were that the indictment did not allege the knife used was a deadly weapon and a knife is not a deadly weapon perse, but the trial court submitted a special issue to the jury inquiring whether it was a deadly weapon. Defendant asserted on appeal that due process and due course of law require "notice” in the indictment that the State intends to obtain such an affirmative finding “by way of a special issue submitted *530 to the jury." Ibid. The Court ultimately found that in those particular circumstances an accused is entitled to notice, and the State must plead it, but not necessarily in the indictment. Id., at 775-776. Although in answering the question initially posed we concentrated on the requirement for notice that the State must plead, certain language in the Patterson opinions is said to induce some concern about content of that notice. Yet in note 9, at 775, the opinion of the Court contrasted those situations where “the properly pled allegations of a primary offense, together with allegations of prior offenses, if any, will provide sufficient information from which range of punishment can accurately be gauged, [and] the indictment alleging an offense under terms of V.T.C.A. Penal Code, § 19.03, [will] put the accused on notice that his punishment will invariably be assessed according to the answers given to Article 37.071 special issues,” with the situation in Patterson, viz; "... [F]rom an indictment neither expressly alleging a deadly weapon was used or exhibited, nor alleging use or exhibition of what is a deadly weapon per se, the accused cannot be expected to determine with any degree of certainty whether a special issue will be submitted [.]” Ergo: A pleading pointedly tendering the issue whether a given thing is a deadly weapon within the meaning of V.T.C.A. Penal Code, 1.07(a)(ll), provides notice that, should evidence raise it, the trial court is authorized to submit a special issue to the factfinder. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9660662. Public record. Not legal advice.