
OPINION
No. 04-01-00588-CR
Lee YATES, Sr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 01-03-045-CRW
Honorable Stella Saxon, Judge Presiding
Opinion by:	Catherine Stone, Justice
Sitting:	Catherine Stone, Justice
		Paul W. Green, Justice
		Sandee Bryan Marion, Justice
Delivered and Filed:	March 17, 2004
AFFIRMED
	Appellant Lee Yates, Sr. appeals his conviction for manslaughter, challenging the district
court's affirmative finding of a deadly weapon.  Yates contends the jury's verdict did not present an
express finding of a deadly weapon, thereby precluding the trial court from entering a deadly weapon
finding.  In light of the court of criminal appeals's recent holding in Lafleur v. State, 106 S.W.3d 91
(Tex. Crim. App. 2003), we disagree and affirm the trial court's judgment. 
Factual and Procedural Background

	Yates was charged with murder in two paragraphs and was convicted by a jury of
manslaughter as a lesser included offense.  The jury sentenced him to twenty (20) years in prison and
imposed a $5,000 fine.  The trial court included a deadly weapon finding in the judgment.  On direct
appeal, Yates argued that the trial court erred in its affirmative finding of the use of a deadly weapon.
This court, relying on Davis v. State, 897 S.W.2d 791 (Tex. Crim. App. 1995) and Polk v. State, 693
S.W.2d 391 (Tex. Crim. App. 1985), affirmed the conviction, but modified the judgment by deleting
the affirmative finding of the deadly weapon because the verdict did not include the phrase "guilty
as charged in the indictment."  Yates v. State, No. 04-01-00588-CR, 2003 WL 56920, *1 (Tex.
App.--San Antonio Jan. 8, 2003) (not designated for publication) vacated by No.0303-03, 2003 WL
22097263 (Tex. Crim. App. Sept. 10, 2003) (not designated for publication).  Subsequent to our
ruling, the court of criminal appeals overruled Davis in Lafleur.  Lafleur, 106 S.W.3d at 99.  The case
is now before us on remand from the court of criminal appeals, and we must determine whether the
trial court erred by entering an affirmative finding that Yates used a deadly weapon in the commission
of the offense.

Discussion
	Yates was charged with murder in two paragraphs.  The first paragraph in the indictment
charged that Yates did "intentionally or knowingly cause the death of an individual, namely Jamie
Bracey, by shooting him with a firearm."  The second charged that Yates did, "with intent to cause
serious bodily injury to an individual, namely Jamie Bracey, commit an act clearly dangerous to
human life, to-wit: pointing a loaded firearm at Jamie Bracey and pulling the trigger of said firearm,
that caused the death of said Jamie Bracey."  
	The jury charge application paragraph for manslaughter read that Yates "did then and there
recklessly cause the death of an individual, namely, Jamey Bracey, by shooting him with a firearm."
The jury found Yates guilty of the lesser included offense of manslaughter, with the verdict reading
"We, the Jury, find the defendant . . . guilty of the lesser offense of manslaughter, as charged."  The
trial court included in the judgment an affirmative finding of a deadly weapon. 
	The court of criminal appeals has recently reaffirmed its long standing holding that when the
jury is the factfinder, the trial court cannot enter a deadly weapon finding in the judgment unless the
jury made an express finding of a deadly weapon.  Lafleur, 106 S.W.3d at 92.   In determining
whether an express finding has been made, "courts 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
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.  Under Lafleur, and its earlier decision in Polk, an express deadly
weapon finding can be established by looking at the indictment, the jury verdict, and the jury charge
application paragraph together. Id. at 98.
	Yates contends that because there was no exact match between the deadly weapon language
in the indictment manslaughter paragraph ("pointing a loaded firearm at Jamie Bracey and pulling the
trigger of said firearm...") and the deadly weapon language in the jury charge application paragraph
on manslaughter ("shooting him with a firearm..."), the jury did not make an express deadly weapon
finding, thereby precluding the trial court from making an affirmative deadly weapon finding.  Yates
argues that Lafleur requires the application paragraph for manslaughter to exactly track the applicable
charge in the indictment for manslaughter. Yates further argues that because the deadly weapon
language in the application paragraph for manslaughter strictly tracked only the first paragraph of the
indictment (murder) and not the second paragraph (manslaughter), the factfinder was prevented from
expressly making a deadly weapon finding.  
	We disagree.  Lafleur never addresses the need to track the exact deadly weapon phrasing
from the indictment to the application paragraph in order for the trial court to make an affirmative
finding of the use of a deadly weapon.  Rather, the jury charge is compared with the indictment only
to determine if the "trial judge has the authority to enter a deadly weapon finding based upon express
'deadly weapon' language in the application paragraph of the lesser-included offense."  Id. at 92, n.6.
In other words, the question before a trial court is whether the application paragraph explicitly and
expressly required the jury to affirmatively conclude that the defendant used a deadly weapon in the
commission of the offense.  Id. at 98.
	In this case, the deadly weapon language used in the two alternative application paragraphs
both allege Yates's use of a deadly weapon. The deadly weapon language in the application paragraph
explicitly and expressly required the jury to find that Yates used a deadly weapon.  See, e.g., Parker
v. State, 119 S.W.3d 350, 358 (Tex. App.--Waco 2003, pet. ref'd) (relying on Lafleur to determine
that an application paragraph adequately describing the use of a deadly weapon, combined with a
guilty verdict, was sufficient to constitute an "affirmative finding" by the trial court).  Accordingly,
the trial court did not err in entering a deadly weapon finding in the judgment. 	Yates further argues that his case is distinguishable from Lafleur because in Lafleur there was
only one deadly weapon allegation in the application paragraph to compare with the indictment.  In
the present case, the indictment contained two alternative deadly weapon allegations, while the
application paragraph used the same deadly weapon language from the first paragraph of the
indictment for both paragraphs.  However, as reasoned above, each paragraph required the factfinder
to determine that a deadly weapon was used.  It is immaterial that the application paragraphs in
Lafleur contained only one deadly weapon allegation.  It is only material that the application paragraph
that correlates with the jury's verdict contains deadly weapon language, requiring the jury to find  that
a deadly weapon was used. 
Conclusion 
	In consideration of Lafleur, because the language in the application paragraph of the jury
charge adequately described the use or exhibition of a deadly weapon, the trial court was justified in
determining that the jury's verdict of guilty, combined with the application paragraph and the
indictment, constituted an affirmative finding that Yates used a deadly weapon in the commission of
the offense of manslaughter.  The trial court therefore properly entered a deadly weapon finding in the
judgment.  The judgment of the trial court is affirmed.
							Catherine Stone, Justice
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