IN THE

TENTH COURT OF APPEALS

No. 10-97-239-CR

     DONNIE FLOYD,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 96-367-C

                                                                                                               

O P I N I O N

                                                                                                               

      A jury convicted Donnie Floyd of manslaughter and assessed his punishment at 15 years confinement in the Texas Department of Criminal Justice - Institutional Division. During sentencing, the trial court entered a deadly weapon finding. Because the trier of fact--the jury -- did not make an express finding that Floyd used or exhibited a deadly weapon, we hold that the court erred when it entered this finding. See Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995)(en banc). Therefore, we affirm the trial court’s judgment on guilt and reform the sentence, deleting the deadly weapon finding.

 

BACKGROUND

      Donnie Floyd was indicted for murder for an offense alleged to have been committed on November 29, 1995 in McLennan County. Floyd pled not guilty to the charges. At trial, a jury returned a verdict of guilty for the offense of involuntary manslaughter--a charge not alleged in the indictment. Floyd elected to have the jury decide his punishment. It assessed his punishment at 15 years confinement in the Texas Department of Criminal Justice - Institutional Division. During sentencing, the court entered a deadly weapon finding. Floyd appeals the entry of the deadly weapon finding on the ground that the jury did not make an express finding that he exhibited or used a deadly weapon during the commission of the offense of involuntary manslaughter. Because we hold that the Court of Criminal Appeals decision in Davis v. State controls this issue, we affirm the court’s judgment of guilt, but modify the sentence, deleting the deadly weapon finding. See Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995)(en banc).

DISCUSSION

      In order for the court to enter a deadly weapon finding, the trier of fact must expressly find that Floyd exhibited or used a deadly weapon during the commission of the offense. See id. When a jury is the trier of fact, the trial court may not enter a deadly weapon finding unless: the jury (1) finds the defendant guilty as charged in the indictment and the indictment alleges use of a deadly weapon; (2) finds the defendant guilty as charged in the indictment and the indictment names a weapon that is a deadly weapon per se; or (3) makes an affirmative finding to a special issue on the use or exhibition of a deadly weapon. See Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985). In addition, the trial court may not read a deadly weapon finding into the verdict if the verdict does not refer back to the allegations in the indictment. See Davis, 897 S.W.2d at 794.

      Here, the jury convicted Floyd of an offense not charged in the indictment. Therefore, the only way that the trial court had the authority to enter a deadly weapon finding is if the jury answered affirmatively to a special issue on the use or exhibition of a deadly weapon. See Polk, 693 S.W.2d at 396. The court did not submit such a special issue to the jury. Since there was no special issue on the use or exhibition of a deadly weapon submitted to the jury, the court erred when it entered such a finding at sentencing. See Davis, 897 S.W.2d at 793.

      Therefore, we affirm the court’s judgment of guilt, but modify the sentence, deleting the deadly weapon finding.

 

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Affirmed and sentence modified

Opinion delivered and filed December 9, 1998

Do not publish

right:23.4pt;margin-bottom: 0in;margin-left:23.4pt;margin-bottom:.0001pt;text-align:justify;layout-grid-mode: char'>   Q    And at that time you knew that those examinations did not show that both of the girls had been penetrated, correct?

      A    The information I had showed that they had been penetrated.

      Q    What information did you have?

      A    The SANE exam.

      Q    The which exam?

      A    The exam from the SANE nurse.

      Q    Okay.  And where had they been penetrated in that examination?  From the best of your recollection, where were they penetrated?

      A    In the vagina.

      Q    In the vagina, okay.  Would it surprise you to know that the witness who just testified indicated that that younger girl had a normal vaginal examination?

      A    No, sir, I did not know that.

(3 R.R. 244-45.)  The sexual assault examination forensic reports state that each victim’s female sexual organ had been penetrated.  (State’s Exs. 3-4.)  The trial court would not have abused its discretion in finding no misrepresentation. 

      The trial court did not abuse its discretion in overruling Upole’s objection.  We overrule Upole’s issue.

      Having overruled Upole’s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed July 26, 2006

Do not publish

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