Gilbert v. State , 1989 Tex. Crim. App. LEXIS 60 ( 1989 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury of injury to a child. V.T.C.A. Penal Code § 22.04. The jury assessed punishment at life imprisonment in the Texas Department of Corrections and a $10,000 fine. The Dallas Court of Appeals affirmed appellant’s conviction in an unpublished opinion. Gilbert v. State, No. 05-85-01380-CR (Tex.App. Dallas delivered December 11, 1986). We initially granted three grounds in appellant’s petition for discretionary review to determine whether the Court of Appeals erred in holding Art. 37.07 § 4(a), V.A.C. C.P., the parole instruction law, is constitutional. On appellant’s motion for rehearing, we granted a fourth ground to determine whether the Court of Appeals erred in holding that appellant was not denied notice that a special issue concerning appellant’s use of a deadly weapon would be submitted to the jury. Art. 42.12 § 3g(a), V.A.C.C.P.

Appellant argues that Art. 37.07 § 4(a), supra, violates the separation of powers doctrine of Art. II, § 1 of the Texas Constitution.¹ In Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987) (Opinion on Rehearing), we held, inter alia, that this statute violated the separation of powers doctrine. We also held that, if an instruction was given under Art. 37.07 § 4(a), supra, a harmless error analysis must be conducted pursuant to Tex.R.App.Pro. 81(b)(2) to determine whether a reversal of the trial court judgment is necessary. Thus, we agree with appellant that the Court of Appeals erred in holding Art. 37.07 § 4(a), supra, does not violate the separation of powers doctrine. In accordance with Rose, supra, we will remand this cause to the Court of Appeals for a harm analysis under Tex.R.App.Pro. 81(b)(2).

In his fourth ground for review, appellant argues the Court of Appeals erred in approving the submission of a special issue to the jury regarding appellant’s use of a deadly weapon. Appellant contended in the Court of Appeals that since no allegation of a deadly weapon was included in the indictment he was denied notice that use of a deadly weapon would be an issue in his case. The Court of Appeals held that the indictment need not contain a deadly weapon allegation and overruled appellant’s contention without addressing whether appellant had proper notice that use of a deadly weapon would be an issue at trial. For reasons to be stated, we hold appellant had such notice and the trial court properly submitted the special issue to the jury.

The indictment in this cause alleged in part:

[appellant did] then and there knowingly and intentionally engage in conduct that caused serious bodily injury to ARTHUR CLARK BAKER, a child 14 years of age or younger, hereinafter called complainant, by placing the said complainant into hot liquid ...

In the charge to the jury at the guilt/innocence phase of trial, the trial judge submitted the following special issue:

Do you find and believe beyond a reasonable doubt that the defendant used or exhibited a deadly weapon in the commission of the offense, if any?

In this connection, you are instructed that a deadly weapon is defined as a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury, (emphasis supplied)

The record reflects appellant’s counsel objected to the submission of the special issue at the time it was read to the jury. The trial court overruled the objection. The jury answered the special issue in the affirmative, and the trial judge entered the affirmative finding in the judgment.

Our recent decision in Ex parte Beck, 769 S.W.2d 525 (Tex.Cr.App.1989), controls the disposition of this case. In Beck, the applicant contended she was not given notice that use of a deadly weapon in commission of the offense would be a fact issue in her murder trial. The indictment in Beck alleged that the defendant caused the death of the victim by shooting him with a gun. Utilizing the definition of deadly weapon as set out in V.T.C.A. Penal Code § 1.07(a)(11)(B)², we held:

It is apparent that any allegation which avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, ‘in the manner of its use ... capable of causing’ (since it did cause) death, [footnote omitted] Thus, applicant had sufficient notice that the weapon alleged is a deadly weapon and that her use of a deadly weapon would be an issue in the State’s murder prosecution, (emphasis in original)

Applying the rationale from Beck, we hold that, appellant had sufficient notice that use of a deadly weapon would be a fact issue at his trial. Under § 1.07(a)(11)(B), a deadly weapon is “anything that in the manner of its use or intended use is capable of causing ... serious bodily injury.” As noted earlier, the indictment alleged that appellant “caused serious bodily injury” to complainant by placing him in hot liquid. This language in the indictment necessarily includes an allegation that the hot liquid in this case, water, was a deadly weapon because “in the manner of its use [the water was capable of) causpng] serious bodily injury.” Thus, appellant had sufficient notice that the nature of the weapon alleged in the indictment would be an issue at trial and that the State may seek an affirmative finding on the use of the weapon. Appellant’s fourth ground for review is without merit.

In accordance with our disposition of appellant’s first ground for review, we vacate the judgment of the Court of Appeals and remand this cause to that court for further proceedings consistent with this opinion.

CLINTON, CAMPBELL and DUNCAN, JJ., dissent.

1 . Because of our disposition of this ground, we need not address appellant’s further contentions that Art. 37.07 § 4(a), supra, is unconstitutionally vague, contradictory, and incomprehensible.

2 . Section 1.07(a)(ll)(B) provides:

"Deadly weapon" means:

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury, (emphasis added).