Crumpton, Lindsey Alyn ( 2009 )


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  •            IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. PD-1634-07
    LINDSEY ALYN CRUMPTON, Appellant
    v.
    THE STATE OF TEXAS
    ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    FROM THE FIFTH COURT OF APPEALS
    DALLAS COUNTY
    Meyers, J., filed a dissenting opinion.
    DISSENTING OPINION
    The issue before the Court is whether an express deadly-weapon finding exists
    when a defendant is found guilty of a lesser-included offense and the jury has seen a
    deadly-weapon clause in the indictment for the greater offense and in the application
    paragraph for the greater offense, but never in association with the lesser-included
    offense (including the application paragraph for the lesser-included offense).
    Crumpton dissent–Page 2
    Without examining any of this Court’s precedent on the issue (Lafleur v. State, 
    106 S.W.3d 91
    (Tex. Crim. App. 2003); Polk v. State, 
    693 S.W.2d 391
    (Tex. Crim. App.
    1985)), the majority concludes that the jury made an express deadly-weapon finding
    because the indictment for the greater offense mentioned a deadly weapon. The majority
    has conducted a bookend, skeletal analysis, quoting the indictment and the verdict form,
    but ignoring the application paragraphs entirely. This is peculiar considering that
    Appellant’s petition to this Court and our precedent both emphasize the critical
    importance of the application paragraph content. 
    Id. To simply
    connect the indictment to
    the verdict, as the majority does, and skip over the intermediate material that the jury
    considered, yields an incomplete analysis.
    Furthermore, I am clueless as to how Blount v. State, 
    257 S.W.3d 712
    (Tex. Crim.
    App. 2008), affects the disposition of this case. Somehow this Petition for Discretionary
    Review has been turned on its head. Appellant does not claim that she lacked notice of
    the deadly-weapon issue, but rather that the jury did not make an express deadly-weapon
    finding in association with her conviction for a lesser-included offense.
    This is a complicated question which requires a deeper analysis of the jury charge
    herein and controlling case law. Because I would decide this case differently (see Exhibit
    A), I respectfully dissent.
    EXHIBIT A
    Appellant, Lindsey Alyn Crumpton, was charged with manslaughter. The jury
    Crumpton dissent–Page 3
    charge at the guilt stage included an application paragraph on the lesser-included offense
    of criminally negligent homicide. The jury found Appellant guilty of criminally negligent
    homicide and assessed punishment at ten years’ confinement. Appellant appealed,
    arguing that because the jury never made an express deadly-weapon finding, her
    punishment range was improperly enhanced to a third degree felony. The court of
    appeals affirmed the trial court, concluding that the jury had made an express deadly-
    weapon finding, and that therefore, Appellant’s punishment range was properly
    calculated. We granted review to evaluate whether the jury made an express deadly-
    weapon finding. I would reverse and remand.
    I.     Facts
    While driving in her Ford Explorer southbound on Interstate 35, Appellant crossed
    the median into northbound traffic and crashed into a Chevrolet Impala. The driver of
    that car died after sustaining blunt force injuries in the wreck. The officer who arrived at
    the scene, Bryan Dorsey, checked both drivers for consciousness, extinguished a fire in
    the deceased’s car, and asked basic questions of Appellant. When he began to walk away
    from Appellant, she grabbed his shoulder, pulled him back toward her, and told him that
    she was attempting suicide when she drove across the median. Appellant later repeated
    this statement to one of the responding paramedics, Jared Karr, on the ambulance ride to
    the hospital. In response, Karr asked if she meant that the wreck was on purpose, and
    Appellant confirmed that it was. Appellant also informed Karr that prior to driving, she
    Crumpton dissent–Page 4
    had taken twenty ibuprofen, four Tylenol, and six Benedryl. A second paramedic treating
    Appellant in the ambulance, Rusty Lee Johnson, asked Appellant if she had crashed on
    purpose, and she responded, “Yes.” Johnson asked her again to make sure he heard
    correctly, and she confirmed that she had intended to crash her car. Appellant testified
    that while she intended to commit suicide by flipping her car on the highway, she did not
    intend to crash into the deceased’s car.
    II.    The indictment, jury charge, and judgment
    A.     Indictment
    The indictment charged manslaughter and read:
    Defendant . . . did recklessly cause the death of an individual, [the deceased],
    hereinafter called complainant, by driving her motor vehicle, a deadly weapon,
    off of the highway, causing her motor vehicle to move into the opposing lane
    of traffic and strike and collide with the complainant’s motor vehicle, against
    the peace and dignity of the State.
    B.     Jury charge–application paragraph at guilt
    The application paragraph in the jury charge on the lesser-included offense of
    criminally negligent homicide read:
    Now bearing in mind the foregoing instructions, if you find from the evidence
    beyond a reasonable doubt, that on or about November 9, 2004, in Dallas
    County, Texas, the defendant, caused the death of [the deceased] by criminal
    negligence, then you will find the defendant guilty of criminally negligent
    homicide as included in the indictment.
    C.     Jury charge–verdict form at guilt
    The jury found Appellant guilty of the lesser-included offense of criminally
    Crumpton dissent–Page 5
    negligent homicide. The verdict form read:
    We, the jury, find the defendant guilty of criminally negligent homicide, as
    included in the indictment.
    D.     Jury charge–verdict form at punishment
    The verdict form at punishment, in which the jury assessed punishment at ten
    years’ confinement, defined the sentencing range as two to ten years. Criminally
    negligent homicide is categorized as a state jail felony, which is punishable by
    confinement for a term between 180 days and two years, with the option of a fine not to
    exceed $10,000. T EX. P ENAL C ODE A NN. §§ 12.35, 19.05 (Vernon 2003). However,
    section 12.35(c) provides that “An individual adjudged guilty of a state jail felony shall be
    punished for a third degree felony” if at the trial it was shown that “a deadly weapon . . .
    was used or exhibited during the commission of the offense . . . and that the individual
    used or exhibited the deadly weapon . . . .” T EX. P ENAL C ODE A NN. § 12.35(c) (Vernon
    2003). The punishment for a third degree felony, as defined by section 12.34, is a range
    of two to ten years’ confinement, with the option of a fine not to exceed $10,000. T EX.
    P ENAL C ODE A NN. § 12.34 (Vernon 2003). Therefore, Appellant received a punishment
    correlative to a third degree felony.
    E.     Judgment
    The trial judge entered a deadly-weapon affirmative finding in the judgment.
    III.   Appeal
    At the Fifth Court of Appeals, Appellant asserted the following two arguments: (1)
    Crumpton dissent–Page 6
    The jury never made an express finding of a deadly weapon because the words “deadly
    weapon” did not appear in the jury charge in association with the lesser-included offense,
    and although “deadly weapon” did appear in the indictment, Appellant was not convicted
    of the charge alleged in the indictment; and (2) because there was no express finding of a
    deadly weapon, the punishment range was improperly enhanced from a state jail felony to
    a third degree felony.
    The court of appeals concluded that because the application paragraph and the
    verdict form referred to the indictment, which included deadly-weapon language, the jury
    made an express finding that a deadly weapon was used during the commission of the
    offense. Crumpton v. State, No. 05-06-01673-CR, 2007 Tex. App. LEXIS 7089, at *14
    (Tex. App.–Dallas Aug. 31, 2007, pet. granted) (not designated for publication). The
    resolution of the first issue determined the resolution of the second. Because the court
    concluded that the jury did make an express deadly-weapon finding, Appellant’s
    punishment range could be properly enhanced from a state jail felony to a third degree
    felony. 
    Id. at *16.
    Appellant presented the same two issues to this Court.
    IV.    Whether the trial court properly entered a deadly-weapon affirmative finding
    in the judgment based upon an express finding from the jury that a deadly
    weapon was used during the commission of the offense
    A.     Appellant’s argument
    Appellant’s first issue pertains to the deadly-weapon affirmative finding in the
    Crumpton dissent–Page 7
    judgment.1 She argues that the jury charge did not include a deadly-weapon clause
    related to the lesser-included offense, so therefore, the jury never made an express deadly-
    weapon finding. Appellant explains that the language of the indictment cannot
    compensate for the inadequacies of the jury charge because she was not convicted of the
    offense in the indictment.
    B.     Polk
    We confirmed the importance of an express finding in Polk and stated that no
    longer could “the facts of the case . . . permit an ‘implied’ affirmative finding.” 
    Polk, 693 S.W.2d at 396
    . Polk outlined three circumstances indicative of an express deadly-weapon
    finding.
    Where the jury is the trier of fact, the trial court may not properly enter that
    they have made an affirmative finding concerning the defendant’s use or
    exhibition of a deadly weapon or firearm during the commission of the offense
    unless:
    1) the deadly weapon or firearm has been specifically pled as such (using the
    nomenclature “deadly weapon”) in the indictment (Applies where the verdict
    reads “guilty as charged in the indictment” (citation omitted));
    2) where not specifically pled in “1)” above as a deadly weapon or firearm, the
    weapon pled is per se a deadly weapon or a firearm; or,
    3) a special issue is submitted and answered affirmatively.
    
    Id. 1 Both
    “express” and “affirmative” may be used to describe the deadly-weapon finding at
    issue. We said in Polk v. State, 
    693 S.W.2d 391
    , 393 (Tex. Crim. App. 1985), that an
    “affirmative finding” means “the trier of fact’s express determination that a deadly weapon . . .
    was actually used or exhibited during the commission of the offense.” The task of creating an
    affirmative finding is two-fold: the fact finder, the jury in this case, makes an express
    determination as to the use of a deadly weapon, and then the trial court judge enters the deadly-
    weapon affirmative finding in the judgment.
    Crumpton dissent–Page 8
    In Polk, one offense–attempted murder–remained consistent throughout the case,
    from the indictment through the judgment. 
    Id. at 393.
    However, when a defendant is
    convicted of a lesser-included offense, Polk’s first basis for an express finding is not
    applicable; the verdict form will not read “guilty as charged in the indictment” because
    the defendant is not found guilty of the offense in the indictment. In Lafleur v. State, 
    106 S.W.3d 91
    , 92 (Tex. Crim. App. 2003), we reaffirmed Polk, but acknowledged the need
    to adapt its analysis to accommodate the lesser-included offense scenario.
    C.     Lafleur
    In Lafleur, the indictment charging murder, the application paragraph on the
    lesser-included offense of manslaughter, and the judgment of conviction for manslaughter
    all featured a deadly-weapon clause. 
    Id. at 92-93.
    However, the verdict form did not
    mention a deadly weapon, and the appellant argued that the trial judge erred by entering a
    deadly-weapon finding in the judgment when the jury’s verdict had not mentioned the use
    of a deadly weapon. 
    Id. at 93.
    We concluded that the indictment, the application paragraph, and the verdict form
    could all be considered when detecting an express finding. 
    Id. at 98.
    The absence of the
    words “deadly weapon” in the verdict form did not rule out an express finding because
    the manslaughter application paragraph re-introduced the deadly-weapon allegation to the
    jury in the new context of the lesser-included offense. Our holding read:
    [C]ourts may look to the application paragraph of a lesser-included offense to
    determine if the express deadly[-]weapon allegation in that portion of the jury
    Crumpton dissent–Page 9
    charge matches the deadly[-]weapon allegation in the indictment for the
    charged offense. If so, the trial court may enter a deadly[-]weapon finding in
    the judgment based upon the jury’s verdict of guilt on the lesser-included
    offense.
    
    Id. at 92.
    The significant distinction between Lafleur and the case at hand is the language of
    the application paragraph on the lesser-included offense. The Lafleur application
    paragraph read, in relevant part: “the defendant Michael Winn Lafleur, did then and there
    recklessly cause the death of an individual . . . by shooting complainant with a deadly
    weapon, to-wit: a firearm . . . .” 
    Id. at 93.
    In Appellant’s case, there is no mention of a
    deadly weapon in the application paragraph for the lesser-included offense; the
    application paragraph and verdict form merely refer back to the indictment by stating, “as
    included in the indictment.” The following chart summarizes the use of “deadly weapon”
    in Lafleur and in the case at hand:
    Did “deadly weapon” appear in 9:       Lafleur                Crumpton
    Indictment charging greater offense    Yes                    Yes
    Application paragraph on lesser-       Yes                    No
    included offense
    Verdict form in which jury finds       No                     No
    defendant guilty of lesser-included
    Jury Charge
    offense
    Judgment of conviction                 Yes                    Yes
    D.      Analysis
    We must decide whether our holding in Lafleur can be expanded to allow an
    Crumpton dissent–Page 10
    express finding when both the application paragraph and the verdict form lack a deadly-
    weapon clause. In other words, can we allow the indictment to carry the deadly-weapon
    language through to the judgment when the defendant is ultimately convicted of a lesser-
    included offense, not the offense in the indictment?
    The State asks us to hold that “a jury makes an express deadly[-]weapon finding
    where the verdict form or the application paragraph on the lesser-included offense
    specifically refers to the indictment, and the indictment includes a deadly[-]weapon
    allegation.” But I find that this proposal renders an express finding too dependent upon
    the indictment for the greater offense.2 For the lesser-included offense context, I
    conclude that the indictment cannot be the only documentation of a deadly weapon
    presented to the jury before the judgment. Here, as in Polk, “there was no way for the
    trial judge to determine with any certainty what, exactly, the jury had found regarding” a
    deadly weapon. 
    Id. at 95.
    1.     Simply stating “as included in the indictment” in either the application
    paragraph or the verdict form will not suffice to produce an express finding
    First, to adopt the State’s suggestion, where a single reference back to the
    indictment can constitute an express finding, would be inconsistent with our reasoning in
    2
    This would not be a problem if the conviction were not for a lesser-included offense;
    Polk specifically endorsed a reference to the indictment in a verdict form. 
    Polk, 693 S.W.2d at 396
    . But importantly, that was when the reference in the verdict form could read “as charged in
    the indictment,” because the offense remained the same from indictment to judgment. 
    Id. When a
    defendant is found guilty of a lesser-included offense, the significance of the indictment’s
    language is necessarily diluted, and an application paragraph is needed to inform the jury of a
    different offense.
    Crumpton dissent–Page 11
    Lafleur. There, we recognized the importance of repeating “deadly weapon” in the
    application paragraph for the lesser-included offense. 
    Id. at 92.
    Unlike Lafleur’s jury
    charge, this jury charge did not “explicitly and expressly require[] the jury to find that the
    defendant used a deadly weapon in the commission of the offense.” 
    Id. at 98.
    And for
    that reason, it falls below the Lafleur standard.
    To say that the jury might possibly see mention of a deadly weapon only in
    connection with an offense of which the defendant was not found guilty presents too
    tenuous a connection between the indictment and the judgment. In light of Polk, I choose
    to give an express finding its plain meaning and require explicit deadly-weapon language
    to be seen by the jury in connection with the offense it found the defendant guilty of
    committing.
    2.     Including a deadly-weapon clause in the application paragraph for the
    greater offense highlights the absence of that clause in the application
    paragraph for the lesser-included offense
    Additionally, the absence of a deadly-weapon clause in the application paragraph
    for the lesser-included offense is conspicuous given the presence of that clause in the
    immediately preceding application paragraph for the greater offense. If “as included in
    the indictment” were meant to suffice as a means to preserve the deadly-weapon
    allegation for the lesser-included offense, then why would the more potent “as charged in
    the indictment” not suffice to preserve the deadly-weapon allegation for the greater
    offense? It would be difficult to say that “as included in the indictment” secured
    Crumpton dissent–Page 12
    consideration of the indictment’s deadly-weapon clause, when “as charged in the
    indictment” necessitated the additional support of repeating the deadly-weapon clause:
    “by driving her motor vehicle, a deadly weapon.” In other words, the inclusion of the
    deadly-weapon language in the application paragraph for the greater offense suggests that
    the omission of such language from the application paragraph for the lesser-included
    offense was not accidental. When “as included in the indictment” is the only means by
    which a jury can attach a deadly weapon to a lesser-included offense, I cannot identify an
    express deadly-weapon finding.
    3.     A motor vehicle is not a deadly weapon per se
    Third, in Lafleur, the defendant was charged with using a firearm, a weapon
    named in the statutory definition of “deadly weapon.” T EX. P ENAL C ODE A NN. § 1.07(17)
    (Vernon 2003). Here, Appellant was charged with using a motor vehicle as a deadly
    weapon, which is not part of the statutory definition. If, as in Lafleur, we have relied
    upon an application paragraph to say “deadly weapon,” even when the weapon at issue
    was a deadly weapon per se, we cannot now say that a jury charge (the application
    paragraph for the lesser-included offense and the verdict form) can be completely devoid
    of deadly-weapon language when the weapon at issue–a motor vehicle–is not a deadly
    weapon per se.
    4.     Conclusion
    My conclusion reaffirms Polk and Lafleur and simply limits the extent to which an
    Crumpton dissent–Page 13
    indictment can provide a basis for an express deadly-weapon finding for a lesser-included
    offense.3 I would not extend Lafleur to allow an indictment to be the only source of that
    wording when a defendant is ultimately convicted of a lesser-included offense, not the
    offense charged in the indictment. Furthermore, I do not announce that the words “deadly
    weapon” must appear in the application paragraph necessarily, but that the jury should
    encounter those written words in association with the lesser-included offense somewhere
    in the jury charge at the guilt stage of the trial–either in the application paragraph or
    verdict form–so as to make an express finding pertaining to the lesser-included offense.
    Simply directing a jury to refer to the indictment by repeatedly stating, “as included in the
    indictment,” does not produce an express deadly-weapon finding.
    V.    Whether Appellant’s punishment was properly enhanced to a third degree
    felony based upon the trial court’s deadly-weapon affirmative finding
    My resolution of Appellant’s first issue determines the outcome of the second.
    Because the trial court’s affirmative finding of a deadly weapon in the judgment was not
    proper, there was no basis for enhancing the punishment under section 12.35(c).
    Appellant’s punishment could not properly have been enhanced to a third degree felony.
    VI.   Conclusion
    In conclusion, because the jury did not make an express deadly-weapon finding, the
    3
    I do not question the effectiveness of the indictment in any other way aside from its role
    as a sole carrier of deadly-weapon language before a judgment of conviction for a lesser-included
    offense. It is well settled that “conviction for the lesser may be had under indictment for the
    greater.” Cosgrove v. State, 
    37 Tex. Crim. 249
    , 39 S.W.367 (1897); TEX . PENAL CODE ANN . §
    6.02(e) (Vernon 2003).
    Crumpton dissent–Page 14
    trial court’s entry of an affirmative finding was improper. Therefore, Appellant’s
    punishment should not have been enhanced to a third degree felony. I would reverse the
    court of appeals and remand the cause to the trial court.
    Meyers, J.
    Filed: December 9, 2009
    Publish
    

Document Info

Docket Number: PD-1634-07

Filed Date: 12/9/2009

Precedential Status: Precedential

Modified Date: 9/15/2015