
In The

 
Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-01-181 CR

____________________


MICHAEL WINN LAFLEUR, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 252ND District Court
Jefferson County, Texas

Trial Court No. 76714




MEMORANDUM TO CLERK

 You are directed to make the following correction in the Opinion dated July 10,
2002:
	On page 7, the last line, change the word rebutabble to rebuttable.
	You will give notice of the correction of the original opinion by sending a copy of
corrected page 7, accompanied by this memorandum, to all interested parties who received
a copy of the original opinion.
	Entered this 22nd day of July, 2002.
								PER CURIAM
In The

 
Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-01-181 CR

____________________


MICHAEL WINN LAFLEUR, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 252ND District Court
Jefferson County, Texas

Trial Court No. 76714




O P I N I O N

	Michael Winn Lafleur was convicted of manslaughter and sentenced by a jury to
eight years imprisonment.  The trial court entered an affirmative finding that Lafleur had
used a deadly weapon.  On appeal, Lafleur argues that the trial court erred by refusing his
request for a jury instruction on criminally negligent homicide and by entering the deadly
weapon finding.  


Issue 1: Criminally Negligent Homicide
	Lafleur was indicted for murdering Keith Walker "by shooting Complainant with
a deadly weapon, to-wit: a firearm[.]"  The trial court instructed the jury on self-defense
and on manslaughter as a lesser-included offense, but refused Lafleur's request for an
instruction on criminally negligent homicide.  The Court of Criminal Appeals has
implemented a two-step test to determine whether jurors should be instructed on a lesser-included offense.  Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002).  The first
step is to decide whether the offense is a lesser-included offense of the offense charged;
the second is to decide whether there is some evidence from which a jury could rationally
acquit the defendant of the greater offense while convicting him of the lesser-included
offense.  Id. 
 The issue before us is whether there is evidence in the record from which a jury
could rationally acquit Lafleur of a greater offense while convicting him of a lesser
offense.  See Mathis, 67 S.W.3d at 925.  The difference in culpable mental state between
manslaughter, for which he was convicted, and negligent homicide is perception of the
risk; in the former, the actor recognizes the risk of death and consciously disregards it,
while in the latter he is not, but ought to be, aware of the risk that death will result from
his conduct.  See Saunders v. State, 913 S.W.2d 564, 565 (Tex. Crim. App. 1995).  "The
key to criminal negligence is the failure of the actor to perceive the risk created by his
conduct."  Mendieta v. State, 706 S.W.2d 651, 652 (Tex. Crim. App. 1986).  Therefore,
"[i]t is encumbent that the record contain evidence showing an unawareness of the risk
before a charge on criminally negligent homicide is required."  Id. at 653. 
	Lafleur was involved in a confrontation with Keith Walker when he fired the fatal
shot, which struck Walker in the head.  Lafleur's defense was based on a theory of self-defense; he testified that Walker threatened to stab him, that Walker had a knife in his
hand, (1) and that he feared for his life.  Lafleur described the shooting as follows:
	I flinched and turned away and fired hoping I was going to scare him, but I
didn't know that he -- he must have got hit. 

	 	. . . .
 

	[T]hat's when I turned away and fired the gun.  I was really hoping it would
scare him, not taking no one's life or hurt him or nothing like that.  I was
hoping that it would have scared him, but it didn't happen like that. 

	Q.  Okay.  So, did you ever really take an aim?

	A.  No, sir, I didn't.

	Q.  You were attempting to frighten him or scare him?

	A.  That's what it was, yes, sir. 

On cross examination, Lafleur was asked:

	Q.  So, you consciously fired the gun?

	A.  I fired the gun hoping that I was going to scare him when I seen the
knife come down at me, sir. 

	In Mendieta, the appellant offered similar testimony at trial.  He testified he feared
for his life but swung the knife at the deceased with the intent to "keep him away," not to
kill him.  Mendieta, 706 S.W.2d at 651-52.  The Court of Criminal Appeals held that this
testimony did not raise the issue of criminally negligent homicide:
	This testimony shows that appellant was aware of the risk he was creating
. . . .  Because there is nothing in the evidence presented which indicates
that appellant was unaware of the risk his conduct created, we find that the
issue of criminally negligent homicide was not raised. 

Id. at 653 (emphasis in original).

	Relying on Mendieta, the First Court of Appeals has held that similar testimony,
which asserted self-defense but did not deny awareness of risk, failed to raise the issue of
criminally negligent homicide:
	[A]ppellant points to the evidence that complainant was the physical
aggressor; appellant was merely trying to ward complainant off when he
drew his knife and stuck complainant in the groin; appellant did not intend
to seriously injure or kill complainant . . . .  None of this evidence indicates
that appellant failed to perceive the risk that complainant might be seriously
injured or killed as a result of appellant's use of the knife.  There is no
evidence meriting the inclusion of a charge on criminally negligent homicide
. . . .

Bergeron v. State, 981 S.W.2d 748, 752-53 (Tex. App.--Houston [1st Dist.] 1998, pet.
ref'd) (citation omitted).
	Similarly, while Lafleur's testimony raises the issue of self-defense, it does not raise
the issue of criminal negligence.  Lafleur acknowledges that he fired the gun consciously,
while standing one or two feet from Walker.  He does not claim to have been unaware of
the risk that Walker might be killed or wounded.  The trial court did not err in refusing
to instruct the jury on criminally negligent homicide.  The first point of error is overruled.
Issue Two:  The Deadly Weapon Finding	In issue two, appellant contends the trial court erred in making an affirmative
finding of the use of a deadly weapon and including the finding in the judgment.  We set
out the jury charge application paragraph by which the jury convicted Lafleur of the lesser-included offense of manslaughter:
		Therefore, if you believe from the evidence beyond a reasonable
doubt that in Jefferson County, Texas, on or about May 31, 1998, the
defendant Michael Winn Lafleur, did then and there recklessly cause the
death of an individual, namely: Keith Walker, hereafter styled the
complainant, by shooting complainant with a deadly weapon, to-wit:  a
firearm, you shall find the defendant guilty of the lesser included offense of
Manslaughter.
		Unless you so find, or if you have a reasonable doubt thereof, you
shall find the defendant NOT GUILTY.  

The jury's verdict in the guilt-innocence phase reads as follows:
		WE, THE JURY, find the defendant NOT GUILTY of Murder as
charged in the indictment, but GUILTY of the lesser included offense of
Manslaughter.   

In the punishment phase, the jury returned the following verdict:

		WE, THE JURY, assess the defendant's punishment at confinement
in the Institutional Division of the Texas Department of Criminal Justice for
a term of Eight (8) years.  

The trial court's judgment then recites an "affirmative finding" of use of a deadly weapon. (2)

	According to Davis v. State, 897 S.W.2d 791 (Tex. Crim. App. 1995), a trial court
is authorized to enter a deadly weapon affirmative finding in three instances:
	where the jury has 1) found guilt as alleged in the indictment and the deadly
weapon has been specifically plead as such using "deadly weapon"
nomenclature in the indictment; 2) found guilt as alleged in the indictment
but, though not specifically plead as a deadly weapon, the weapon plead is
per se a deadly weapon; or 3) affirmatively answered a special issue on
deadly weapon use.

Id. at 793 (citing, inter alia, Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985)). 
Here, the jury verdict does not say "guilty of manslaughter as alleged in the indictment." 
It could not have.  There was no indictment for manslaughter; nor did there have to be. 
Manslaughter is a lesser-included offense of murder.  Mathis v. State, 67 S.W.3d at 925. 
"In a prosecution for an offense with lesser included offenses, the jury may find the
defendant not guilty of the greater offense, but guilty of any lesser included offense." 
Tex. Code Crim. Proc. Ann. art. 37.08 (Vernon 1981).  Here, it is the application
paragraph of the jury charge that the jury looked to in convicting Lafleur of the lesser-included offense of manslaughter.  The application paragraph includes express deadly
weapon language. 
	In Davis, the Court of Criminal Appeals held that similar firearm "deadly weapon"
language in a voluntary manslaughter application paragraph was merely an "implied"
finding, not an "express" finding.  Davis, 897 S.W.2d at 793-94.  The Court quoted from
its earlier opinion,  Polk v. State, and specifically noted "that an 'implied' finding is not
an 'express' finding as is required by statute, and that the Legislature's requirement for an
'express' finding was 'meant to save all of us from sinking ever deeper into the quagmire
of whether differing indictment / verdict / fact situations amounted to 'implied' findings 
or not.'" Davis, 897 S.W.2d at 793 (quoting Polk, 693 S.W.2d at 396).  Respectfully, we
question how the application paragraph's language regarding the use of the deadly weapon
constitutes only an implied deadly weapon finding rather than an express finding.  In
following the trial court's instructions in the charge, the jury convicted the defendant of
the lesser-included offense by finding that the expressly stated requirements of the
application paragraph existed beyond a reasonable doubt.  We generally presume, though
it is a rebuttable presumption, that a jury follows the instructions given by the trial judge. 
See Wilbon v. State, 961 S.W.2d 9, 10 (Tex. App.--Amarillo 1996, pet. ref'd). 
Furthermore, we note that the Legislature has defined "deadly weapon" to include "a
firearm."  Tex. Pen. Code Ann. § 1.07(17) (Vernon 1994).  However, because Davis
holds such language in the application paragraph is only an "implied" finding, we are
required to conclude the trial court erred in including a deadly weapon finding in the
judgment.  The State concedes Davis requires this result.
	Appellant's second point of error is sustained.  See Davis, 897 S.W.2d at 793-94;
Ex parte Flannery, 736 S.W.2d 652, 653 (Tex. Crim. App. 1987); Easterling v. State, 710
S.W.2d 569, 581-82 (Tex. Crim. App. 1986); Polk, 693 S.W.2d at 397.  The error is
harmful.  It affects the date appellant may be eligible for parole.  See Tex. Gov't Code
Ann. § 508.145 (Vernon Supp. 2002).  Following the dictate of Davis, we order the
affirmative deadly weapon finding stricken from the judgment and reform the judgment by
deleting the finding.  
	As reformed, the judgment is affirmed.
	AFFIRMED, AS REFORMED.
							_________________________________
								DAVID B. GAULTNEY
									    Justice

Submitted on June 20, 2002
Opinion Delivered July 10, 2002
Publish

Before Walker, C.J., Burgess, and Gaultney, JJ.
1. The jury heard testimony that, when paramedics moved the deceased, a closed
pocketknife was found underneath his body.  
2. The Texas Penal Code defines "deadly weapon" as follows: "(A) a firearm or
anything manifestly designed, made, or adapted for the purpose of inflicting death or
serious bodily injury; or (B) anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury."  Tex. Pen. Code Ann. § 1.07(17)
(Vernon 1994).

