OPINION
Appellant, Kirby Arness Rice, appeals his judgment of conviction for the offense of murder. TexPenal Code Ann. § 19.02 (Vernon 1974). The jury rejected appellant’s “not guilty” plea, finding appellant guilty as charged in the indictment, made an affirmative finding of the use of a deadly weapon, and assessed punishment at fifty years confinement in the Texas Department of Corrections. We affirm.
In his first point of error, appellant contends the special issue, in the court’s charge to the jury regarding the use of a deadly weapon contained a defect. Appellant specifically complains the special issue was worded in such a way as to presume that the weapon used was deadly.
The evidence at trial showed that appellant poured gasoline on his victim and lit him on fire, causing the victim’s death. The court’s charge on guilt-innocence included the following special issue: 1
Now, if you have found the defendant guilty of any offense defined in this charge you must determine whether or not he used a deadly weapon, namely, a flammable liquid, in the commission of the offense.
“Deadly weapon” means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
Do you the jury find the defendant used a deadly weapon, namely, a flammable liquid, in the commission of the offense for which he has been convicted?
No objection was made to the submitted charge on the grounds now contended. Appellant must therefore demonstrate egregious harm — harm that denied him a fair and impartial trial.
Almanza v. State,
The evidence shows that appellant purchased gasoline, poured the gasoline on his victim, ignited the victim’s gas-soaked body with a cigarette lighter, and subsequently fled from the scene. The victim died after receiving burns over 97% of his body. The evidence was clearly sufficient to show that the flammable liquid, the gasoline, was in the manner of its use, a deadly weapon. Tex.Pen.Code Ann. § 1.07(a)(ll)(B) (Vernon 1974). The jury was never informed by counsel or the court that a flammable liquid was a deadly weapon or that if they found that appellant used a flammable liquid then they must also find that he used a deadly weapon. In fact, during closing arguments, the prosecutor discussed the juror’s choices of verdict contained in the court’s charge as follows:
There is the verdict page. You have a choice between not guilty, guilty of mur *601 der or guilty of voluntary manslaughter, and then the last page is a special issue page: Do you find that the flammable liquid in the manner that this defendant used it was a deadly weapon and that should be a fairly obvious answer.
The prosecutor told the jury that the purpose of the special issue in the court’s charge was to find whether the weapon used by appellant was deadly. Defense counsel, on the other hand, attempted to argue to the jury that they could not consider the special issue because no expert witness testified that the gasoline was a deadly weapon. However, the jury had the definition of “deadly weapon” before them and did appropriately consider such issue.
English v. State,
In point of error two, appellant argues that he was not given notice, required by
Ex parte Patterson,
The indictment which charged appellant with murder averred the victim’s death was caused by gasoline. This was sufficient notice to satisfy the constitutional guarantees elucidated in
Ex parte Patterson. Ex parte Beck,
The judgment is affirmed.
Notes
. See
Polk
v.
State,