             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                        No. PD-1645-06


                          DOMINIQUE LEKIE BLOUNT, Appellant

                                               v.

                                   THE STATE OF TEXAS


                   On Discretionary Review of Case 14-04-00946-CR of the
                                Fourteenth Court of Appeals,
                                       Harris County


       WOMACK , J., delivered the opinion of the Court, in which KELLER, P.J., and
       PRICE, JOHNSON, KEASLER, HERVEY , HOLCOMB, and COCHRAN, JJ., joined.
       MEYERS, J., dissented.


       The question in this case is whether the appellant was given adequate notice that there

would be an issue of his use or exhibition of a deadly weapon in the commission of the offense

of burglary of a habitation in which he committed or attempted to commit aggravated assault.
                                                                                                             (Blount - 2)

         This court considered the issue of notice twenty years ago in Ex parte Patterson when it

granted habeas corpus relief to a prisoner who had been convicted of murder and whose

eligibility for parole was affected by the inclusion in the convicting court’s judgment of an

affirmative finding that he used a deadly weapon.1 The basis for relief was not clear since the

Court was fragmented and the support for the opinions was not clearly described.2

         The lack of clarity was made moot within two years when the Court said in another

murder case, “Language in Ex parte Patterson is overruled to the extent of conflict with [today’s]

holding.”3 That holding was cast in these terms:

                 The State argues that it is “totally illogical for the Applicant to contend
         that an indictment charging her with causing the death of an individual by shoot-
         ing him with a gun did not notify her that the gun was an object that ‘in the
         manner of its use or intended use is capable of causing death or serious bodily
         injury.’ Texas Penal Code, § 1.07(a)(11)(B) ….”
                 Section 1.07(a)(11)(B), supra, 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.
                 We agree with the State. 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. 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. Thus, the concerns




         1
             See Ex parte Patterson, 740 S.W.2d 766 (Tex. Cr. App. 1987).

         2
            An opinion by Judge Clinton (id., at 767) announced the order granting relief (see id., at 778), and it was
treated by annotators (and to some extent by other members of the Court) as being the opinion of the Court, but in
fact it was not joined by any other member of the Court. Judge Miller filed an opinion for a plurality of three judges,
but it was called a “concurring” opinion. See ibid. The Court announced that Judge Teague “concurs in result.” Ibid.
Judge Campbell was unofficially reported to have “concurred in result.” Id., at 766. Two members of the Court
dissented, and one did not participate. Id., at 778.

         3
             Ex parte Beck, 769 S.W.2d 525, 528 (Tex. Cr. App. 1989).
                                                                                           (Blount - 3)

       and individual constitutional guarantees elucidated in Ex parte Patterson are
       satisfied.4

       Later in the same year, this court extended its reasoning to a case in which the indictment

alleged that the defendant caused serious bodily injury less than death. The Court said:

       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 allega-
       tion that the hot liquid in this case, water, was a deadly weapon because “in the
       manner of its use [the water was capable of] caus[ing] 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.5

       Likewise, the Beck rationale extends to the case before us in which the indictment alleged

a burglary of a habitation in which, after entering, the appellant “committed and attempted to

commit a felony of aggravated assault.”

       Aggravated assault may be committed in only two ways: (1) by “caus[ing] serious bodily

injury”6 or (2) by “us[ing] or exhibit[ing] a deadly weapon during the commission of the

assault.”7 Each of these involves the use of a deadly weapon. The first way necessarily implies

the use of a deadly weapon, which is “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury.”8 The second way specifies the use of a deadly


       4
           Id., at 526–27 (emphases in original).

       5
           Gilbert v. State, 769 S.W.2d 535, 536–37 (Tex. Cr. App. 1989).

       6
           P EN AL C O D E § 22.02(a)(1).

       7
           Id., § 22.02(a)(2).

       8
           Id., § 1.07(a)(17)(B).
                                                                                           (Blount - 4)

weapon. Therefore an allegation that a defendant committed aggravated assault gives him notice

that the deadly 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.

       The Court of Appeals erred in holding that “the appellant was given no written notice of

any kind[,] and no reference to a deadly weapon was made in the indictment.”9

       The judgment of the Court of Appeals is reversed, and the judgment of the District Court

is affirmed.


Delivered July 2, 2008.
Publish.




       9
           Blount v. State, 201 S.W.3d 170, 173 (Tex. App. — Houston [14th Dist.] 2006).
