           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).
                                                                     Crumpton dissent–Page 2

       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
                                                                    Crumpton dissent–Page 3

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
                                                                     Crumpton dissent–Page 4

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
                                                                     Crumpton dissent–Page 5

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. T EX. P ENAL C ODE A NN. §§ 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 . . . .” T EX. P ENAL C ODE A NN. § 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. T EX.

P ENAL C ODE A NN. § 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)
                                                                   Crumpton dissent–Page 6

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
                                                                        Crumpton dissent–Page 7

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.


       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.
                                                                     Crumpton dissent–Page 8

       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
                                                                     Crumpton dissent–Page 9

        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 9:       Lafleur                Crumpton

         Indictment charging greater offense    Yes                    Yes

         Application paragraph on lesser-       Yes                    No
         included offense

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

         Judgment of conviction                 Yes                    Yes

D.      Analysis

        We must decide whether our holding in Lafleur can be expanded to allow an
                                                                     Crumpton dissent–Page 10

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


       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.
                                                                    Crumpton dissent–Page 11

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
                                                                   Crumpton dissent–Page 12

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.” T EX. P ENAL C ODE A NN. § 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
                                                                       Crumpton dissent–Page 13

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


       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).
                                                                  Crumpton dissent–Page 14

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

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