Ex Parte Beck

Appeals correctly Court of reformed

judgments to reflect an affirmative jury, punishment. the trier of fact at contends, alia,

Appellant also inter review, grounds

in four that the Court Appeals holding parole erred in jury charge given pursuant to Art.

law

37.07, 4, V.A.C.C.P., is constitutional. § agree appellant

We and hold that Appeals light

Court of did err in of our decision in

recent Rose v. (Tex.Cr.App.1988)(Opinion on Rehear

ing)- charge

Appellant object failed to to the trial; however, ‍​​​​​​‌​​​​​​​‌‌​‌‌​‌​‌​‌​​‌‌​​​‌‌​​‌​​‌​‌​​‌​​​‍Rose, supra, we held in object charge

that the failure to to that did right challenge

not waive a defendant’s constitutionality charge upon Rose,

appeal. supra, also held in We 4, 37.07, separa-

Art. violated the § powers provi-

tion of and due course of law

sions of the Texas Constitution and that if

an instruction was under Art. 4, supra, a analysis harmless error must pursuant Tex.R.App.Pro.

be conducted

81(b)(2)to determine whether a reversal of judgment necessary.

the trial court Appeals of the Court of

therefore vacated and this cause is remand- Appeals

ed to the Court of for a harm

analysis opinion. consistent with this TEAGUE, JJ.,

CLINTON and dissent. parte Nancy Marie BECK.

No. 70169. Texas, Appeals of

Court of Criminal

En Banc.

March 1989.

of voluntary manslaughter prosecu- after upon tion a murder indictment which al- leged she caused the death of complain- by ant shooting gun”. Upon him with “a special issue, submission of a re- turned a used or “deadly weapon” exhibited a in commission Thereafter, of the offense. judge trial entered con- V.A.C.C.P., 42.01(21). viction. See Article Applicant now contends de she was nied a fair failure of the indict ment to notify her that her use of a weapon would an issue be in the trial. parte Patterson, Under Ex (Tex.Cr.App.1987), persons accused en are titled to notice in form some that the use of deadly weapon will be a fact issue at prosecution, time of if the ‍​​​​​​‌​​​​​​​‌‌​‌‌​‌​‌​‌​​‌‌​​​‌‌​​‌​​‌​‌​​‌​​​‍State intends pursue the entry deadly weapon find ing pursuant 42.01, to Article supra. See 42.12, also Article 3g(a)(2), Section V.A.G. C.P., [formerly 3f(a)(2)]; Section Sec 15(b). tion argues illogi- State that it is “totally cal for Applicant to contend an charging causing indictment her with by shooting death of an individual him with gun notify gun did not her that the object an that ‘in the manner of its use intended capable causing use is death Code, serious bodily injury.’ Texas Penal 1.07(a)(ll)(B)-” 1.07(a)(ll)(B), supra, provides: Section Belton, Kreimeyer, James H. for appel- ‘Deadly weapon’ means: lant. Arthur C. Eads, Dist. Atty., and Sean K. ^[******]

Proctor, Belton, Atty., Asst. Dist. Robert (B) anything in the manner its Huttash, Austin, Atty., State’s for the use capable or intended use is of caus- State. ing bodily death injury. or serious agree ap

We the State. with It is parent allegation which avers death weapon was caused a named OPINION allega necessarily instrument includes an MILLER, Judge. weapon tion that the named or instrument was, application .capable This an writ of habeas “in of its use the manner .. V.A.C.C.P., pursuant (since cause) corpus causing” filed Article it did death.1 Thus, Applicant Section 2. convicted had sufficient notice say guilty 1. What we here is different from no reason- of murder. The latter is neces- charged person capital who is with sarily former. included in the charge may murder notice from that that he used or exhibited trial that the defendant deadly weapon is a weapon of the offense. weapon in the commission her use of a would instance, allega- no prosecution. murder where there is the State’s Thus, comports concerns and individual constitu- indictment which tion elucidated in guarantees as set out tional the definition of Patterson are 1.07(a)(ll)(B), satisfiеd. the defendant in § clearly not put notice that there will be on in Ex language We are aware concerning case use or an issue in the dealing question parte Patterson with the deadly weapon. of a exhibition seeking notice in the context of the State of finding deadly weapon. of a an affirmative juncture, appropriate it is At this Ex concurring opinion As stated concurring Judge Clinton’s comment on parte the essence of the cases that it is Polk v. opinion which concludes situations, analagous dealing with State, (1985), is be 693 S.W.2d 391 which State, (1871), Long as 36 Tex. such notion or overruled.3 Such a ing modified punishment for re dealing with enhanced if unre- to some confusion left might lead offenders, giving peat is the of notice butted. constituting a statu “every circumstance the difference between To understand degree tory would affect the offense which helpful it is notice and affirmative required not punishment...”. We have “notice mentally compartmentalize the go specifically that the notice further and apart from the deadly weapon issue” a that, point in the enhancement situa out finding concept issue”. “affirmative Long, Subchapter Chapter D of tions since deadly weapon of notice there will be a relied on to 12 of the Penal Code will be today’s concern of issue in the case is the punishment range to a certain increase the parte and of Ex Patter- opinion range ordinarily prescribed for above son, totally supra. concept This notice is not the indicted crime. We likewise do finding of a from the “affirmative divorced analogous necessary requirement deem an body that has deadly weapon” of law in this instance.2 Polk, line of emerged parte notice, Patterson consist cases. Long, remains ent with the rationale finding emerged as allega law necessary in cases there is no Affirmative where 42.12 of the Code of bodily injury being a child of Article tion of death or serious result solely It is weapon, there is no use of Criminal Procedure. by caused a of the word “affirmative” “deadly weapon” in the of the insertion the nomenclature statute, has no link to indictment, in that there will be evidence but $100,000 of substance fraught if amount penal with offenses that not to exceed 2. The laws are grams). exceeds 400 higher penalty range when an additional have a fact, necessary prove offense, which is not Polk, supra, stated that verdicts this Court 3. In Although charging pled instrument. is in the "necessarily im- longer "amount to” will no ply" pled fact must be in the indict- ‍​​​​​​‌​​​​​​​‌‌​‌‌​‌​‌​‌​​‌‌​​​‌‌​​‌​​‌​‌​​‌​​​‍the additional finding of use or exhibition an affirmative rationale, Long the effect of that ment under the so, weapon. doing In we relied of a punishment pled; need not be see fact on holding legislative that an intent in clear the express, V.A.P.C., 31.03(f), (offense e.g., is increased Sec. finding implied, of a not higher category if it is of offense to the next V.A.C.C.P., 42.12, "affirmative in Art. be made public serv- that the actor was a shown at trial apparent finding” from the tremen- cases. It is V.A.P.C., 31.12(h), (offense ant); is a Class Sec. present appellate cases which number of dous for remuner- unless committed B misdemeanor ation, proper find- "affirmative the issue of whether ing" A misdemean- event it is a Class in which bar the bench and in fact made that V.A.C.S., 4476-15, or); effectuating Art. difficulty Sec. great have a deal 4.03— (offense aggravated place, Act finding Controlled Substances It is not our express however, notion. more); grams particular is 28 question if amount of substance the wisdom V.A.C.S., 4476-15, 4.042(d), promulgated Controlled requirement Art. of the law as Sec. (minimum purpose penalty jumps of such legislature, from 5 thwart the Act or to Substances difficulty in merely its because of imprisonment not to exceed years’ and a fine $50,000 application. practical years’ imprisonment and a fine to 10 concept fаct, nothing of notice. In in Arti- Patterson is overruled to the extent cle 42.12 or in the prohib- Polk line of cases holding. of conflict with this entry its an of an finding with- requested The relief is denied. prior out notice to the An accused. affirm- finding just ative that: that is CLINTON, Judge, concurring. affirmatively made. This can be accom- compelled I feel to comment in defense (1) plished by: A jury’s answer to a maligned, fear, of the much little issue, (2) “guilty opinion understood of the Court in Ex charged in the indictment”. the latter рarte Patterson, (Tex.Cr. 740 S.W.2d 766 case, the indictment must also contain an App.1987). averment of a deadly weapon, or a named First, it is Polk v. deadly weapon per se. (Tex.Cr.App.1985), which I believe the Notice that there will be a qualifying today, Court is at least as much in happens given, issue the case to be Patterson, as albeit sub silentio. holding today, under our in the above latter Polk, supra, In rejected the Court a (i.e. case when the indictment contains an string of jury cases which had held that a averment of or a named “guilty charged verdict of as in” an indict se). deadly weapon per But the fact that ment, alleging bodily that death or serious wording common concerning deadly a injury weapon, resulted from use of a “nec weapon in may the indictment satisfy the essarily finding included” an affirmative finding requirement affirmative of Polk deadly weapon was used. Thus satisfy and also the notice of overruled, alia, were parte inter Ex Mos todаy’s holding way merges in no the two er, 530, 602 (Tex.Cr.App.1980) S.W.2d 533 separate and distinct bodies of law. (“The only theory guilt of in submitted the sum, bar, In in the case at the aver charge applicant court’s was the inten that in [causing ment the indictment the death tionally knowingly caused the death of complainant of by shooting the him with a by shooting pistol. the individual him awith gun] gave appellant notice that the State jury The applicant ‘guilty found the mur of attempt prove gun would to that the named chargеd der as in the indictment.’ In these was used in a manner that caused death circumstances, necessarily in the verdict and therefore a deadly weapon. was finding cluded a commit that the requirement espoused Patterson, notice in by shooting ted murder the individual with today, as modified is therefore satisfied. pistol. a Therefore this verdict must By contrast, jury had the not answered a finding amount that the to an affirmative special gun deadly issue that the was a applicant used a firearm in the commission weapon, there would have been no affirm offense.”); State, and Chavez v. made, finding ative even (“[I]n (Tex.Cr.App.1983) upon “guilty the return of a verdict of as case, present alleges the the indictment Polk, charged supra. in the indictment”. caused the death of de ‘[defendant special answered, But since a issue was so gun.’ by] shooting ceased ... him with a finding properly en affirmative was charges allegation We hold that this mur tered, appellant сhallenge does not Code, der under V.T.C.A. Penal entry finding on of an affirmative 19.02(a)(2) charges the use a § ground. added.)). If deadly weapon.” (Emphasis conclusion, used, allegation weapon since the here an was death, clearly given weapon notice that the nature of use of resulted in weapon jury in the indictment was is not such that a verdict thereon trial, finding, necessary litigate an issue in her would “amount to” an affirmative alleg though upon we deem her to have sufficient a verdict an indictment been se, potentially deadly weapon per used or which ex notice that fact would be 42.01, supra., pressly weapon under Article or Article labels the used as “dead would, 3g(a)(2), supra. Language ly,” only the for- Section it can be because by due allegation pleading required does a suffi- kind of mer not constitute some Otherwise, so that know the pleading may cient we law. course of submission litigated. even been In other (or issuе has the factfinder words, holding in necessarily re- Polk worse, of the af- entry Chavez, jected the conclusion in punishment is to firmative where such as in the instant an indictment the one court), will be first formal notice “charges deadly actually case the use the accused that issue was even Otherwise, weapon.” jury finding of consequence litigation in the —after alleged in guilt “as the indictment” would fact.1 an in this constitute away from To the extent it backs as well. context holding today, majority has con- Accordingly, in Ex su- Polk, su- comitantly rejected holding its allegedly death caused pra, which although admitting not much. The pra, knife,” we “with a observed: apparently concludes that jury “Applicant’s guilty him found an indict- anytime found sufficient will be charged 2 of murder ‘as in Count comports” language ment contains “which But in ex- indictment.’ Polk itself we weapon in the definition of notion, pressly rejected the Code, 1.07(a)(ll)(B). V.T.C.A. Penal in, e.g., [supra], that an Chavez how so cannot fathоm that can be when ‘affirmative’ could derived premised upon indict- verdict that same ‘necessary implication’ from a ver- not necessarily ment does “amount to” ‘guilty as charged’ dict of in an indict- I must affirmative under Polk. pleading ment facts as these. That such therefore, conclude, insofar as Polk support such an indictment not an will Chavez, supra, overruled Moser both finding mean it affirmative must also now, turn, in If is Polk is overruled. this provide does not serve to notice that the majority opinion, true tenor of not the the be, weapon of the in and of nature will perceived I was to a then fear what once itself, specific a in case.” issue the legal “quagmire” respect with to whether Id., possibly n. 12. it How can finding made, 693 an affirmative has been anything mean else? 396, may transmogrified into S.W.2d at delving rationale, into the hold- Without respect to whether a veritable morass supra, simply of Ex finding pled. an affirmative has been which, any situation this: in under Second, it neces- believes Polk, supra, in of opinion jury a verdict effect” of an sary to observe “the alleged in “guilty as the indictment” would finding of a use or exhibition of affirmative to” an of not “amount affirmative pleading de'adlyweapon part is not a of the deadly weapon, use of a such submis- requires. agree entirely I Patterson special question which sion of a issue on that observation, not think necessary entry to of with this but would would be authorize judgment, opiniоns To the necessary.2 an affirmative on the it extent the identified the 1. Thus we exclaimed Patterson: 2. At the outset Patterson court question expressly open “a left in Polk issue as allege "At least where the indictment to fails notice, [supra), any, if must what viz: weapon was used or exhibited which is appear support an submission indictment be, se, alleged per deadly weapon, or is a special jury whether a a issue as to of deadly knowing way ... the accused no оf during weapon was used or exhibited finding may until the such a even be made Id., at 767. commission of the offense." special required in these circumstances allege that the did not The facts were indictment Polk, jury, has been submitted to a knife knife used was court, factfinder, acting see Ex as or the weapon deadly perse, court but the trial is not a Webster, (Tex.Cr.App. Parte inquiring jury submitted a issue to the 1986), finding in the enters the affirmative weapon. Defendant it was whether judgment!” appeal process and due on that due asserted (All emphasis mine 774. 740 S.W.2d at require indictment of law "notice” course noted.) throughout unless otherwise intends to obtain such affirma- that the State finding “by way special issue submitted tive aof today clarify serve to misunderstanding might prefer notice that I that a defen- opinions in score, Patterson this I given. However, dant should be I find that it. welcome the kind of applicant notice that was satisfy is sufficient to either the due course join With these comments I judgment of law clause of this State’s Constitution or of the Court. process the due of law clause found in the CAMPBELL, J., joins in opinion. this Fourteenth Amendment to the Federal Constitution, and further find that the lack TEAGUE, Judge, dissenting. of such notice applicant about which com- majority opinion treats the conten- plains deprive did not her of a fair and presented tion by Nancy Beck, Marie impartial trial. applicant, henceforth though it was be- Applicant argues the affirmative fore this Court either on appeal direct finding that was entered in the trial court’s being presented through to this Court judgment should be deleted from the trial petition for discretionary pro- review following court’s for the reasons: However, applicant presents cess. her con- (1) “The plead State did not in the indict- pursuant 11.07, V.A.C.C.P., tention to Art. applicant ment that the used or exhibited a this postconviction State’s corpus habeas deadly weapon in thе commission of the statute, which is invoked when a defendant offense”, (2) “The State did not file deprived claims that he was of a fair and special plea give that would trial, impartial deprived has been notice that the State intended to seek an some Federal or State right Constitutional finding.” to which he should have received. Given cause, the record do not believe The record reflects that applicant’s prop- contention is a fit and jury cоmmitting convicted the of- subject er for this Court to review under its fense of voluntary manslaughter. The postconviction corpus jurisdiction. habeas punishment also assessed her at ten Therefore, I respectfully file years’ this dissent- confinement in Department ing opinion to majority’s Thereafter, decision represented Corrections. while applicant’s consider contention that the af- attorney represented the same who her firmative trial, appealed was at she her cause to the Third used or exhibited when she Appeals. committed the Court of She did not raise on manslaughter offense of voluntary should appeal direct the contention that she raises be deleted from the trial court’s in Ap- this cause. See the Third Court of given because she peals’ was not sufficient notice unpublished opinion State, of Beck v. in the trial court going 3-84-252-CR, 22, that this was to No. May 1985. Nor did applicant given she, occur. I also find through that was attorney the same who contin- notice, although sufficient represent her, it is not the kind ued to present the conten- jury." ultimately to the punishment Ibid. The Court the accused on notice that his will particular in those circumstances an ac- invariably according be assessed to the answers notice, cused is entitled to and the State must issues,” special to Article 37.071 with the it, plead necessarily but not in the indictment. Patterson, viz; situation in Id., at 775-776. expressly ‍​​​​​​‌​​​​​​​‌‌​‌‌​‌​‌​‌​​‌‌​​​‌‌​​‌​​‌​‌​​‌​​​‍"... an indictment neithеr [F]rom Although answering question initially in the alleging deadly weapon was used or exhibit- posed we concentrated on the for ed, alleging nor use or exhibition of what is a plead, notice that the State must certain lan- se, deadly weapon per the cannot be accused guage opinions in the Patterson is said to induce degree expected of cer- determine with some about concern content of that notice. Yet tainty special whether a issue will be sub- 9, 775, opinion in note at the of the Court mitted [.]” properly contrasted those situations where “the Ergo: tendering pleading pointedly A the issue offense, allegations pled primary together given thing whether a is a within allegations prior offenses, any, if will Code, 1.07(a)(ll), meaning the of V.T.C.A.Penal provide sufficient information from which it, that, provides should evidence raise range punishment accurately gauged, can special the trial court is authorized to submit a alleging the indictment under [and] offense issue to the factfinder. Code, put of V.T.C.A. § terms Penal [will]

531 tion that in in apparently giving she raises this the after applicant cause and her petition discretionary for very experienced that he criminal review defense trial at- filed this on her torney, very Court behalf. The was also a former who well petition 1986, 4, State, on respected judge refused June and district court of this rehearing represented motion for appeаl was denied on No- who also her on direct State, 5, Beck v. vember 1986. See Appeals Court to the Third Court of and in the Appeals petition Criminal discretionary proceed- Number 827-85. Nor for review applicant’s Court, does present attorney ings and opportunity new before this allege good his, in this why judge, cause her complain cause about the trial submit- contention was not raised ting jury special either on direct issue I appeal petition discretionary or for opinion “Appendix have attached to this Wainwright They review that refused. objection See A.” made no to the trial Sykes, v. 72, 2497, 433 judge submitting U.S. 97 S.Ct. 53 the jury, issue to even (1977). L.Ed.2d 594 though authority is no statutory there gives judge a trial of this the authori- State applicant also do not find where ty jury. to submit such an to the stringent require satisfied this Court’s it This makes obvious to me down in ments that laid were attorney of, and her were well aware Maldonado, (Tex.Cr.App. notice, judge thus received that the trial 1985), which hоlds that if a record might judg- later enter the trial court’s exists, trial part it must be made finding, ment above they least postconviction application for the writ of were aware should have aware that been habeas corpus, or the must estab might judge provi- later invoke the lish that the error about which claims he 42.01, V.A.C.C.P., sions Art. Art. 42.- occurred at his trial “so infected the trial 12, V.A.C.C.P., 3g(a)(2), formerly Sec- process him deny impartial as to a fair and 3f(a)(2) 15(b). compare tions See and (116). trial.” The trial court record is not Isaac, Engle 107, 102 U.S. S.Ct. us, before applicant’s nor does present (1982). 71 L.Ed.2d 783 counsel the finding deprived assert that her of a fair trial. In Polk v. (Tex.Cr. upon based Court’s App.1985), deci Applicant asserts that because her indict- sion it proper judge that was the trial allege judge ment did not the trial submit issue to the might judg- later in the enter trial court’s deadly weapon issue, I concluded in ment the concurring dissenting opinion should be from deleted the trial court’s that, I filed in that cause “If the issue is to judgment. Although it is true that submitted, it only should be submitted judge indictment is silent that the trial stage guilt at the The determi trial. might judgment later enter facts, the trier of by nation whether a above there is no used dur or exhibited law, parte not even under Ex our Patter- commission of the offense son, 766 (Tex.Cr.App.1987), accused, actually goes to the commission of that the must indictment contain such Therefore, given (1985). the offense.” allegation. today’s opinion, Our law before cаuse, I what occurred in this find that under simply that guilt stage during the of the trial the defendant must be some notice an affirma received sufficient notice that judge might that the trial later enter finding might entered in tive later be judgment finding. trial court’s such a judgment. trial court’s cause, however, actually record of this Therefore, attorney ap- shows that and her re- this Court should dismiss notice, although plicant’s improvident- it is not kind of ceived cause because it was prefer given. ly notice that I should be filed. ordered stated, guilt during I I The record reflects Given what have believe stage judge, applicant’s merely pile trial the trial write would more obiter more pile

dictum on the of obiter contingency, dictum that the notice of this ‍​​​​​​‌​​​​​​​‌‌​‌‌​‌​‌​‌​​‌‌​​​‌‌​​‌​​‌​‌​​‌​​​‍either formal or majority already stacked. Neverthe- informal.

less, compelled additionally I am state praise Patterson for Today, we should opinion’s that I the majority also dissent to the contributions that he made crimi- general holding, express broad and either justice system during nal period the short or implied, charging that if the instrument system. time he within lived alleges that the accused committed a homi- However, today’s majority opinion, after cide, it and is also he did so we should also from rooftops: exclaim through solid, gaseous, the use of some great mighty “The Patterson dead! substance, liquid and the defendant is longer recognize him, Praise him but no for guilty offense, of that or some lesser Beck killed him and a of this offense, included offense of that this will Court, ordering after first he be cre- be sufficient the accused that the mated, People, buried his ashes! But also judge may later enter in the trial remember, great Phoenix, like the court’s an affirmative great Patterson mighty may someday was used exhibited youthfully arise from alive his ashes to live in the commission of the offense which day.” dissenting another Also see the convicted, the accused was and the defen- opinion filed in Gilbert v. dant given any need not be kind other of S.W.2d handed date. down this

Case Details

Case Name: Ex Parte Beck

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 22, 1989

Citation: 769 S.W.2d 525

Docket Number: 70169

Court Abbreviation: Tex. Crim. App.