CONTENTS v01. 18, NO. 10 FEATURE ARTICLES - Voice For The ...

The Texas Law of Deadly Weaponsby Kevin WilsonintroductionSince early 1985, the law concerningaffirmative, deadly weapon findings hasradically changed. Findings once thought"good as gold" by judges, prosecutors, anddefense attorneys are now void. New requirementsfor pleadings, fact finding procedures,and judgment wording have beenimposedby theCourtofCrimina1 Appeals.These changes are of great importance tothose who try felony cases, because anaffumative, deadly weapon finding hasmore effect on the actual sentence servedby a defendant than any other provision ofthe sentencing statutes.Statutory LawThe basic law concerning deadly weaponfindings is found in the definition sectionof the Penal Code,' and the ProbationZand Parole3 provisions of the Code ofCriminal Procedure. Together, theseprovisions have the following effects:a deadly weapon finding prevents theconvicted person from becomingeligible for parale until he has servedone-fourth of his sentence, or 15 years(whichever is less)?only ajuty may grant a convicteddefendantprobation (if he is otherwiseeligible) once it finds that a deadlyweapon was used during the commissionor flight from the offense. A judgecannot grant probation once a deadlyweapon finding has been made.sif the jury does grant probation, thejudge may still send the defendant toprison for up to 120 daysPRemember, however that a peaon maybe conv~cted of an "aggravated" offense(regardless of whether an affirmative findinghas been made), thathas thesameeffectas an affumative, deadly weapon finding?PleadingsUntil recently, no special pleading ornotice of the State's intention to seek adeadly weapon finding was required. InChavez v. State, 657 S.W.2d 146--Kevin Wilso~l is in private practice inAustin, Texns. He served as art AssistanfDistrict Attorney in Bell County for fouryears, prusecuting child abuse cases andanswering appeals. In his last case, heassisted Steve Tokoly, Gppy Eads, nndO.L. byd prosecute Jerry "the Anirnal"McFadden for capital murder. He is agraduate of the Baylor University Schoolof Lnw and the University of Kansas.(Tex.Cr.App. 1983),theCourtheldthat the14th Amendment's due process clause didnot require that State specially plead adeadly weapon allegation in the indictment.Then, in the case of fi Parte Pafterson,740S.W.Zd766 (Tex.Cr.App., 1987),the Court adoptad Judge Clinton's longstandingview that Aa I. § 19 of the TexasConstitution requires that the State giveformal notice that it intends to seeka deadlyweapon finding. While the opinion didnot requiresuch, the Court said that adeadlyweapon allegation in the indictmentwould be sufficient to give fair notice. TheCourt did not indicate any other approvedforms of notice. The Ft. Worth Court ofAppeals has ruled that actual, oral noticeduringplea discussions is sufficient to pro-I PDR on the issue of notice in Gilben v.State, No. 0075-87, and may clarify itsholding.ProofThe question "what is a deadlyweapon?" is a mixed one of law and fact.The Penal Code defines two types of deadlyweapons: "per se" weapons and "nunnerofuse" weapons. Aper se weapon is "afirearm, or anything manifestly designed,made, oradapted for the purposeof inflictingdeath or serious bodily inj~ry."~ Determiningwhat is aper se weapon is a matterof law, and the judges of the Court ofCriminal Appeals have wrangled with thislike their brethren of the Supreme Comthave wrestled with the tern "minerals" inan oil and gas lease.Aamnner ofuse weaponis "anything inthe manner of its use or intended use thatis capable ofcausing death or serious bodilyinjury.'") Determining manner of use isa fact question. This difference is important,for the Court has held that unless it isa per se weapon, the State must showthrough size, use, and context of the offense,or expert opinion, that the weapon(usually a knife) wasdeadly. Merely showingthe weapon to the jury won't suffice.Perse deadly weapons are firearms, pistolsand rifles." Manner of use weapons areguns, shotguns, knives, automobiles,hands, fists, clubs, fm or anything else."June 1989 1 VOICE for the Defense 23