Ex parte Flannery

OPINION

W.C. DAVIS, Judge.

Applicant files this application for a post conviction writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P. Applicant alleges that the trial court erroneously included in the judgment of conviction an affirmative finding that applicant used a deadly weapon in the commission of the offense. Such finding prevents applicant from becoming eligible for parole at an earlier date than if no finding had been made. Art. 42.12, Sec. 3g(a)(2).

As applicant points out, Polk v. State, 693 S.W.2d 391 (1985) sets out three instances in which an affirmative finding is made: (1) the indictment specifically alleges the words “deadly weapon” in describing the weapon used, and the verdict reads “guilty as charged in the indictment;” (2) the indictment names a weapon which is per se a deadly weapon and the verdict reads “guilty as charged in the indictment;” and (3) a special issue is submitted to the trier of fact and answered affirmatively.

In the instant case the indictment charging applicant with murder states, inter alia, that applicant caused the death of an individual, “by shooting him with a shotgun.” The jury found applicant “guilty of Voluntary Manslaughter.” The application paragraph of the court’s charge on voluntary manslaughter charges the offense and includes the phrase “by shooting him with a shotgun.”

We note first that since the jury was the trier of fact both at the guilt-innocence stage and at the punishment stage of trial, the trial court had no authority to make an affirmative finding that applicant used a deadly weapon. Cf. Fann v. State, 702 S.W.2d 602 (Tex.Cr.App.1985). None of the tests set out in Polk, supra, have been met. No affirmative finding was made by way of reference back to the indictment, as in a verdict stating, “guilty as charged in the indictment;” and no special issue was submitted to the jury on the issue. Polk, supra. The trial court erred in including such finding in the judgment.

The methods for making an affirmative finding were elaborated upon in Ex Parte McLemore, 717 S.W.2d 634 (Tex.Cr.App. 1986) and Ex Parte Bracelet, 702 S.W.2d 194 (Tex.Cr.App.1986), wherein each respective defendant was charged with murder, but was convicted of voluntary manslaughter, similar to the instant case. Ex Parte McLemore and Ex parte Bracelet, hold that when the indictment alleges a weapon that is categorized, as per se a deadly weapon, and the application portion of the court’s charge names the weapon used and that weapon is a deadly weapon per se, the affirmative finding is proper even though the defendant is simply found guilty of the lesser included offense.

Ex Parte McLemore and Ex Parte Bracelet, both supra, are not consistent with Polk, supra, in requiring an affirmative finding to be made. Such a finding must be “read into” the verdict which simply finds a defendant guilty of an offense and does not refer back to allegations of a deadly weapon charged in the indictment. To the extent they are inconsistent with Polk, supra, Ex parte McLemore and Ex Parte Bracelet both supra, are overruled.

Applicant is correct that in accord with Polk, supra, no affirmative finding was made by the jury. Therefore, no such finding should have been included in the judgment. We order that the affirmative finding in Cause No. 1-80-26 from the 241st Judicial District of Smith County be deleted from the judgment. The relief requested is granted.