
COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO.
2-02-032-CR
 
DANIEL LEE RATTHAMONE                                                        
   APPELLANT
V.
THE STATE OF TEXAS                                                        
           STATE
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FROM CRIMINAL DISTRICT COURT NO.
1 OF TARRANT COUNTY
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OPINION
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Appellant Daniel Lee Ratthamone was
convicted of murder based on his open plea of guilty and punishment was assessed
at seventy years' confinement. In his sole issue on appeal, appellant asks us to
reform the trial court's judgment to delete the deadly weapon finding because
the jury did not affirmatively find that appellant used a deadly weapon to
commit the murder. Because the record shows that the jury affirmatively found
that appellant used a deadly weapon, we will affirm.
An "affirmative finding"
concerning a deadly weapon is the trier of fact's express determination that a
deadly weapon or firearm was actually used or exhibited during the commission of
the offense. Lafleur v. State, No. 1447-02, slip op. at 6, 2003 WL
21184694, at *3 (Tex. Crim. App. May 21, 2003); Polk v. State, 693
S.W.2d 391, 393 (Tex. Crim. App. 1985). The indictment, jury charge, verdict,
and judgment are all relevant sources to consider in determining whether a jury
made an express deadly weapon finding. Lafleur, No. 1447-02, slip op.
at 8, 13-14, 2003 WL 21184694, at *3, 5; Polk, 693 S.W.2d at 393. When,
however, neither the indictment nor the jury charge contains any deadly weapon
language, a trial court cannot enter an "implied" deadly weapon
finding based solely upon its own assessment of the evidence and a general
guilty verdict. Lafleur, No. 1447-02, slip op. at 7, 2003 WL 21184694,
at *3.
In this case, the indictment contained
deadly weapon language. It alleged that appellant "intentionally or
knowingly cause[d] the death of an individual, Antonio Borrego, by shooting him
with a deadly weapon, to-wit: a firearm." The application paragraph of the
court's charge to the jury referred to this deadly weapon language, instructing
the jury "to find the defendant guilty as charged in the indictment"
based upon his plea of guilty to the charged offense. The jury returned a
general verdict, stating: "We, the Jury, find the defendant, Daniel Lee
Ratthamone, guilty of the offense of murder." Reading the indictment, jury
charge, and verdict together, we conclude that the jury affirmatively found that
appellant used a deadly weapon in committing the murder. See id. at 8,
2003 WL 21184694, at *4 (noting that "sometimes 'an affirmative finding
will arise as a matter of law'--as in when the instrument used is a per se
deadly weapon, such as a pistol or a firearm") (quoting Polk, 693
S.W.2d at 394).
Relying on Davis v. State, the
State concedes that the trial court's deadly weapon finding is erroneous--albeit
harmless--because the jury did not make an affirmative finding that appellant
used a deadly weapon or that he was guilty "as alleged in the
indictment." See Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim.
App. 1995). In Davis, the trial court instructed the jury to find the
defendant guilty of voluntary manslaughter only if he "intentionally or
knowingly cause[d] the death of the deceased 'by shooting him with a deadly
weapon, to-wit: a firearm[.]'" The jury found that the defendant was
"guilty of the offense of voluntary manslaughter." Id. at
792-93. Because the jury's verdict did not specifically mention a deadly weapon
or refer back to the indictment, the court of criminal appeals concluded that
the jury had not made an express deadly weapon finding. Id. at 793.
Recently, however, the court of criminal appeals has overruled Davis
"to the extent that it would prohibit courts from referring to the
application paragraph of the jury charge to determine if the jury has made an
express deadly weapon finding." Lafleur, No. 1447-02, slip op. at
14, 2003 WL 21184694, at *5. Accordingly, we decline to apply Davis to
this situation.
Based on all of the foregoing, we overrule
appellant's sole issue and affirm the trial court's judgment.
 
                                                       
   JOHN CAYCE
                                                       
   CHIEF JUSTICE
 
PANEL F: CAYCE, C.J.; DAUPHINOT and
HOLMAN, JJ.
PUBLISH
DELIVERED: July 3, 2003

