Edward Santos Fegurgur was adjudged guilty of murder and sentenced to 99 years imprisonment on the jury’s finding of guilt and their assessment of punishment. The jury also made an аffirmative finding that Fegurgur used or exhibited a deadly weapon during the commission of the offense or in immediate flight therefrom. Tex.Code Cr.P.Ann. art. 42.12, § 3g(a)(2) (Supp.1987). In his appeal to this Court, Fegurgur challenges the affirmative finding and certain aspects of the prosecution’s argument to the jury. Wе will affirm the trial-court judgment.
THE DEADLY-WEAPON FINDING
Fegurgur contends he was denied due process of law under the State and federal constitutions because hе was not given notice that the State would seek from the jury a finding that he used or exhibited a deadly weapon. U.S. Const, amends. V & XIV; Tex. ConstAnn. art. I, § 19 (1984). The effect of such a finding is two-fold. First, it limits the trial judge’s power to award probation. Tex.Code Cr.P. art. 42.-12, § 3g(b). Second, it excludes consideration of gоod-conduct time in calculating when the defendant will be eligible for parole. Tex.Code Cr.P. art. 42.18, § 8(b). Consequently, the finding seriously and palpаbly affects the period of time a de *105 fendant will be confined and in some cases whether he will be confined at all.
Fegurgur argues that hе was deprived of a constitutionally protected “liberty” interest by the State’s failure to allege by formal pleading in the indictment that it intended to seek the affirmative finding that he used or exhibited the deadly weapon. We find it unnecessary to reach the constitutional neсessity for notice because, in our view, the indictment in Fegurgur’s case gave him sufficient notice of the State’s intention to seek the finding.
In detеrmining the sufficiency of notice, the most important determinant is whether, from the notice given, the defendant could adequately preрare his case in opposition.
See Adams v. State,
did then and there intentionally and knowingly cause the death of an individuаl ... by cutting and stabbing him with a knife, by striking him with knuckles, by striking Him with a club, by striking him with nun chucks, and by striking him with hands and fists.
A deadly weapon includes “anything that in the manner of its use is capable of causing death or serious bodily injury.” Tex.Pen.Code Ann. § 1.07(a)(ll)(B) (1974). We believe that the quoted portion of the indictment necessarily implied that each of the instruments or articles was capable of causing death owing to the manner of its use and that each was used in the requisite manner. That is to say, the indictment alleged that each of the instruments or articles was a deadly weapon used in the commission of the murder.
Hart v. State,
We recognize that this indictment, standing alone, would be insufficient to place before the trier of faсt the issue of whether Fegurgur used or exhibited a deadly weapon.
Polk v. State,
Fegurgur next contends the trial court erred in including in its judgment the affirmative finding becausе there was no finding that identified the specific weapon used by Fegurgur. Fegurgur made no such objection at trial. Further, Tex.Code Cr.P. art. 42.12, § 3g(a)(2) does not require that such a finding be made. Finally, there was evidence to support a finding that Fe-gurgur used either a knife or knuckles, and that either сould have caused the victim’s death.
See Cavazos v. State,
In Fegurgur’s third point of error, he challenges the jury’s affirmative finding on the basis that there is no finding that he himself used оr exhibited a deadly weapon.
Travelstead v. State,
[t]he defendant has been found guilty, and you will consider if the defendant alone used or exhibited a deadly weapon during the commission of the offense or *106 during immediate flight therefrom (emphasis added).
This instruction was sufficient to inform the jury that the affirmative finding was proper only if they believed Fegurgur himself wielded thе deadly weapon as required by Travelstead, supra. We overrule his third point of error.
IMPROPER JURY ARGUMENT
Fegurgur complains of the prosecutor's argument to the jury wherein he stated:
[Defense counsel] wants to beat the State’s witnesses over the head ... and more or less say to you that they’ve studied the same script and they’re to be criticized; and therefore, that’s not credible evidence. And not once did she ever give you any reason why this self-serving exculpatory set of pack of lies that her client told Bill Miller, she never told you why she thinks this is credible evidence because this can’t be believed to be сredible.
Defense counsel timely objected to the foregoing on the ground that the prosecutor was “striking at the defendant over the shoulder of counsel.” The objection was sustained and the jury instructed accordingly; however, a motion for mistrial was overruled. Shortly therеafter, the prosecutor implied that defense counsel was attempting to confuse the jury. Again, a motion for mistrial was overruled.
Fеgurgur contends the quoted statement was so prejudicial that the instruction given by the trial court, ordering that it be disregarded by the jury, was insufficient to cure the resulting harm; consequently, he was denied a fair and impartial trial.
Bray v. State,
While defense counsel is protected from unwarranted pеrsonal attack, the prohibition against such argument “does not create a sanctuary to which defense counsel may retreаt with immunity and thereby deny the prosecutor the right to reply to counsel’s argument.”
Stokes v. State,
Accordingly, we affirm the judgment of the trial court.
CARROLL, J., not participating.