Before deliberations on guilt, the state asked the trial court to delete from the aggravated-robbery count the words "to wit: a screwdriver," asserting that they were mere surplusage. The trial court refused the request. During deliberations, the jury sent out a note: "In the charge of Aggravated Robbery do we have to find that the deadly weapon used was the screwdriver entered in evidence in order to find that a deadly weapon was used?" The trial court did not answer the question, but instructed the jury to refer to the charge and to continue deliberating. The jury found appellant guilty of the lesser-included offense of robbery on the first count, Tex. Pen. Code §29.02, and guilty as charged of unauthorized use of a vehicle on the second count, Tex. Pen. Code §31.07.

At the punishment phase, the state requested and received a second deadly-weapon charge, over defense objection. The special issue submitted to the jury asked whether a deadly weapon was used and included a fill-in-the-blank form on which the jury was to state what that weapon was. The jury made an affirmative deadly-weapon finding and identified the weapon as "a hard metal-like object."

On appeal, appellant argued that the trial court erred by allowing the jury to make an affirmative deadly-weapon finding after it had rejected the deadly-weapon allegation at the guilt phase when it found him guilty of the lesser-included robbery charge. ⁽¹⁾ The court of appeals treated it as a notice issue, ⁽²⁾ distinguishing this case from previous cases dealing with the sufficiency of deadly-weapon notice under article I, section 19, of the Texas Constitution:

Those cases make clear that the written notice requirement may take different forms. They do not support, however, a second submission of a deadly weapon issue to the trier of fact where the first submission has been resolved unfavorable [sic] to the State, where no further notice is given, and where it is left to the jury to determine both the nature of the instrument or weapon alleged in the original notice and whether it was a deadly weapon as used or exhibited.

Id. at 711. In so holding, the court of appeals rejected the state's argument that the indictment alleging use or exhibition of a deadly weapon, specifically a screwdriver, was sufficient to put the defense on notice that the use of a deadly weapon would be a fact issue at both guilt and punishment. The only evidence at trial indicating that the object held to the victim's side during the robbery qualified as a "deadly weapon" came from the victim. During the trial, she expressed her opinion that the screwdriver entered into evidence was capable of causing serious bodily injury or death if it had been used to stab her in the ribs. However, she also conceded that the screwdriver could have been left in her car, not by appellant, by someone at the body shop from which she had retrieved her car immediately before encountering appellant. Also according to her trial testimony, Ms. Mahdy never saw the object and felt it only momentarily before withdrawing her hand. She believed at the time of the incident that the object was a dull knife. However, in response to the state's questions, she testified that the object qualified as a deadly weapon whether it was a knife or a screwdriver.

The state argues to this Court that the description of the deadly weapon in the written notice, whether in an indictment or a separate writing, need not be particularly specific in order to meet the notice requirement. See, e.g., Whatley v. State, 946 S.W.2d 73, 75 (Tex. Crim. App. 1997); Pena v. State, 864 S.W.2d 147, 150 (Tex. App. - Waco, 1993); Mixon v. State, 781 S.W.2d 345, 346 (Tex. App. - Houston [14th Dist.] 1989). In focusing on the question of how specific the notice must be, the state seems to misapprehend the crux of the court of appeals' holding:

In the instant case, appellant acknowledges that he received proper notice from the indictment in Count I that the State would seek an affirmative finding of the use or exhibition of a deadly weapon, "to wit: a screwdriver." That element of the offense of aggravated robbery as charged was submitted to the jury and rejected when the jury found appellant guilty of the lesser-included offense. Appellant in effect contends that this concluded the State's intention to seek an affirmative finding of a deadly weapon of which he had been given notice. Without further notice, written or otherwise, and without further evidence on the issue, the penalty stage of the trial was conducted. At this point, appellant learned for the first time that the State was asking for a special issue type submission of a different deadly weapon charge, this time allowing the jury to first determine the nature of instrument or weapon used and then to decide if the chosen instrument or weapon was used as a deadly weapon.

Flenteroy v. State, 105 S.W.3d 702, 710 (Tex. App. - Austin, 2003).

Contrary to the state's assertions, the court of appeals' holding did not rely on the fact that appellant lacked notice that a use of a deadly weapon would be an issue at trial. Indeed, the proof presented by the state at the guilt/innocence phase was consistent with the notice provided by the indictment, i.e., that appellant used and exhibited a deadly weapon, "to wit: a screwdriver." However, the jury's finding that appellant was guilty only of robbery constituted a rejection of the deadly weapon that was alleged in the indictment.

If the trial court had made a different decision on one of two occasions, the issues in this case would not have arisen. First, if the trial court had granted the state's motion to delete "to wit: a screwdriver" and proceeded on the legally sufficient pleading "used or exhibited a deadly weapon," it is likely that, given the jury's note, appellant would have been found guilty as alleged in the indictment. While the trial court did not err in denying the motion, the denial was a step on the path to this appeal.

Second, the trial court appears to have misread or misinterpreted what he referred to as "Blackwell's charge." This is a common way to refer to the pattern jury instructions contained in 8 Michael J. McCormick et al., Texas Practice: Texas Criminal Forms and Trial Manual (10^th ed. 1995). ⁽³⁾

The jury instructions are the responsibility of the trial court, and the pattern jury instructions include instructions to the trial court as to the proper formulation of a jury charge. In the case of robbery, the pattern charge says,

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, A.B., on or about the _________ day of _________, 19__, in the County of _______, and State of Texas, as alleged in the indictment [or information] did then and there obtain [or maintain control of] property of C.D., to wit _____________ [specify the property] without the effective consent of the said C.D. and with intent to deprive the said C.D. of said property, did then and there intentionally or knowingly [or recklessly] cause serious bodily injury to C.D. [or E.F.] by _____________ [specify manner and means of committing the act],

[Or did then and there while in the course of committing theft and with intent to obtain (or maintain control of) property of C.D., to wit: ____________ (specify the property), without the effective consent of the said C.D. and with intent to deprive the said C.D. of said property, did then and there by using and exhibiting a deadly weapon _____________ (specify the deadly weapon used) intentionally or knowingly threaten or place C.D. (or E.F.) in fear of imminent bodily injury or death ....]

8 Michael J. McCormick et al., Texas Practice: Texas Criminal Forms and Trial Manual § 116.02, ¶ VII (10^th ed. 1995).

In these instructions, "A.B."connotes the defendant, and "C.D." and "E.F." connote complainants. The text in italics delineates choices to be made by the trial court: the type of charging instrument, the property, the manner and means, the deadly weapon. This pattern charge, which the trial court relied on, clearly requires the trial court to fill in the blanks before the jury receives the charge of the court; the choice of weapon is no more the province of the jury than the choice of type of charging instrument or the manner and means of committing the offense.

In a case with almost identical facts, the El Paso Court of Appeals rejected a collateral estoppel argument when the state was permitted to submit a deadly-weapon charge at the punishment phase after the jury failed to find the defendant guilty of aggravated sexual assault at trial. Chavez v. State, 860 S.W.2d 714, 717 (Tex. App.- El Paso, 1993). In that case, the indictment alleged aggravated sexual assault using a firearm, but the jury found the defendant guilty only of the lesser- included offense(s) of sexual assault. The state announced at the beginning of the punishment phase that it would be seeking an affirmative finding that the defendant used a knife during the course of the sexual assaults, and it provided to the defendant written notice that specified the weapon used. The trial court also gave the parties a continuance of four days before beginning the punishment phase. Id. at 716. The court of appeals held that collateral estoppel did not bar the affirmative deadly-weapon finding at the punishment phase and specifically noted that the trial court did not rule upon, and the defendant did not challenge on appeal, the adequacy of the state's notice of intent to seek the affirmative finding. Id., n.1. In this case, however, the court of appeals did not base its decision on a theory of collateral estoppel, but rather on the inadequacy of the state's notice of intent to seek a deadly-weapon finding at punishment.

After the jury in this case reached its verdict of guilt of the lesser-included offense of robbery, the state provided no additional notice to appellant that it would seek an affirmative finding during the punishment phase, nor did it specify the weapon it would seek to prove use of. Nor, unlike Chavez, did the trial court recess the trial to give the defense time to regroup. As the court of appeals noted, "There was no written notice outside and independent of the indictment alerting appellant of the State's intention to seek an affirmative finding of the use of any deadly weapon other than the screwdriver." Flenteroy, 105 S.W.3d at 705. Furthermore, the evidence here, unlike the evidence in Chavez, did not limit the choice of weapon and thereby provide indirect notice. ⁽⁴⁾ Faced with the fill-in-the-blank verdict form which allowed the jury to decide what it thought the deadly weapon was and no evidence that limited the choice of weapon, the defense had no notice of what weapon it would be called upon to defend against and therefore no means of disputing the new deadly-weapon allegation during the punishment phase. As the U.S. Supreme Court held in Jackson v. Virginia, 443 U.S. 307, 315, 61 L. Ed. 2d 560, 99 S.Ct. 2781 (1979):

It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend.

The jury's finding in this case, that appellant was guilty only of robbery, effectively answered the question of whether the appellant used a deadly weapon as alleged in the indictment. By allowing the state to resurrect the deadly-weapon question as a special issue at punishment without requiring the state to provide any further notice to the defense of both the intent to seek such a finding and the nature of the weapon and by failing to order a continuance in the face of that failure of notice, the trial court erred. As Justice Barajas noted in his concurrence to Chavez,

[i]n my view, the State has effectively, though not formally, attempted to amend the charging instrument in the present cause mid-stream after failing to present sufficient evidence to convince the jury that Appellant used [the charged weapon] in this assault.

Chavez, 860 S.W.2d at 718 (Barajas, J., concurring)(internal citations omitted).

I would find that submitting the special issue on the deadly-weapon finding at punishment as a blank to be filled in by the jury was error. The notice of intent to re-seek a deadly-weapon finding was not only late and unbounded, it caused the prior notice, in the indictment, to be made false. Appellant received notice of one weapon, and, after he had won on the issue of that weapon, was subjected, without notice, to a punishment trial on a different, unspecified weapon.

I would hold that lack of notice may be cured by giving sufficient written notice and allowing appellant adequate time to prepare a defense and remand this cause to the trial court for retrial on punishment, after sufficient notice to appellant of any intention by the state to seek an affirmative finding of use of a deadly weapon. Because the Court decides otherwise, I respectfully dissent.

Johnson, J.

Filed: April 6, 2005

En banc

Publish

1.The only difference between robbery and aggravated robbery applicable under these facts is whether the actor used or exhibited a deadly weapon.

2."Because of the fundamental nature of one's liberty interest in parole, a defendant is entitled to notice if the state intends to seek a deadly weapon finding at trial, and the state's failure to give such notice constitutes reversible error." Mixon v. State, 781 S.W.2d 345, 346 (Tex. App. - Houston [14th Dist.] 1989, citing Ex parte Patterson, 740 S.W.2d 766-77 (Tex. Crim. App. 1987).

3."[E]t al." is T. Blackwell and B. Blackwell, hence the common name of "Blackwell's charge."

4.Chavez was one of three men who assaulted the victims in their home. He carried a knife, but the knife and the two guns carried by his co-defendants were passed among the three during the attack. When the jury rejected the gun, the evidence supported only one other option: a knife.