




 





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).
	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
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
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
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.  Tex. Penal Code Ann. §§ 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 . . . ."  Tex. Penal Code Ann. § 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.  Tex.
Penal Code Ann. § 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)
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
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. 
	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
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 :
Lafleur
Crumpton

Indictment charging greater offense
Yes
Yes

Application paragraph on lesser-included offense
Yes
No

Verdict form in which jury finds
defendant guilty of lesser-included
offense
No
No

Judgment of conviction
Yes
Yes

D.	Analysis
	We must decide whether our holding in Lafleur can be expanded to allow an
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
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
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."  Tex. Penal Code Ann. § 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
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
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  
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.	
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. 
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). 

