               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

                K ELLER, P.J., filed a dissenting opinion in which P RICE, and H OLCOMB,
JJ., joined.

       Whether the defendant has notice that a deadly weapon finding may be entered, and whether

the jury actually makes a deadly weapon finding, are entirely separate issues. The Court conflates

the two issues, relying upon a notice case – Blount v. State1 – to establish that an affirmative finding

was actually made. The problem is that Blount relied squarely upon Ex parte Beck2 for its notice




       1
           257 S.W.3d 712 (Tex. Crim. App. 2008).
       2
           769 S.W.2d 525 (Tex. Crim. App. 1989).
                                                                       CRUMPTON DISSENT – 2

holding,3 and Beck specifically explained that its holding with respect to notice did not affect the

requirements for making an affirmative finding:

       At this juncture, it is appropriate to comment on Judge Clinton’s concurring opinion
       which concludes that it is Polk v. State, 693 S.W.2d 391 (1985), which is being
       modified or overruled. Such a notion might lead to some confusion if left
       unrebutted.

       To understand the difference between notice and affirmative finding, it is helpful to
       mentally compartmentalize the “notice of a deadly weapon issue” apart from the
       “affirmative finding issue.” The concept of notice that there will be a deadly weapon
       issue in the case is the concern of today’s majority opinion and of Ex Parte
       Patterson, supra. This notice concept is totally divorced from the “affirmative
       finding of a deadly weapon” body of law that has emerged with the Polk, supra, line
       of cases.

       Affirmative finding law emerged as a child of Article 42.12 of the Code of Criminal
       Procedure. It is solely the result of the insertion of the word “affirmative” in that
       statute, and has no link to any concept of notice. In fact, nothing in Article 42.12 or
       in the Polk line of cases prohibits an entry of an affirmative finding without prior
       notice to the accused. An affirmative finding is just that: a finding that is
       affirmatively made. This can be accomplished by: (1) A jury’s answer to a special
       issue, or (2) by a finding of “guilty as charged in the indictment.” In the latter case,
       the indictment must also contain an averment of a deadly weapon, or a named deadly
       weapon per se.

       Notice that there will be a deadly weapon issue in the case happens to be given, under
       our holding today, in the above latter case (i.e. when the indictment contains an
       averment of deadly weapon or a named deadly weapon per se). But the fact that
       common wording concerning a deadly weapon in the indictment may satisfy the
       affirmative finding requirement of Polk and also satisfy the notice requirement of
       today’s holding in no way merges the two separate and distinct bodies of law.

       In sum, in the case at bar, the averment in the indictment [causing the death of the
       complainant by shooting him with a gun] gave appellant notice that the State would
       attempt to prove that the named gun was used in a manner that caused death and
       therefore was a deadly weapon. The notice requirement espoused in Patterson, as
       modified today, is therefore satisfied. By contrast, had the jury not answered a special
       issue that the gun was a deadly weapon, there would have been no affirmative finding
       of deadly weapon made, even upon the return of a verdict of “guilty as charged in the


       3
           257 S.W.3d at 713-14.
                                                                        CRUMPTON DISSENT – 3

        indictment.” Polk, supra. But since a special issue was so answered, the affirmative
        finding was properly entered, and appellant does not challenge the entry of an
        affirmative finding on that ground.4

I would also point out that, in the earlier case of Ex parte Brooks, this Court held that an affirmative

finding of a deadly weapon was not made by the jury finding the defendant “guilty of murder by then

and there intentionally or knowingly causing the death of an individual, . . ., by shooting him with

a gun.”5 Because a “gun” was not a deadly weapon per se, we held that none of the methods outlined

in Polk for making a deadly weapon finding were utilized.6 So the jury’s verdict did not constitute

an express finding that a deadly weapon was used or exhibited, as required by the statute.7

        The Court incorrectly equates the concept of “as included in the indictment” with the concept

of “as charged in the indictment.” The Court makes the unwarranted assumption that the deadly-

weapon allegation is one of the included allegations rather than one of the excluded allegations. This

assumption is a logical non-sequitur and, as noted above, it is not allowed by our caselaw.

        The Court argues that when a jury finds true an allegation that the defendant caused a death,

the verdict is necessarily a finding that a deadly weapon was used. This is an appealing argument,

but it is contrary to our caselaw. It is also refuted to some extent by the answer to the question posed

by the Court itself: a jury has the ability to find a defendant guilty of causing a death but at the same

time answer a deadly-weapon special issue in the negative. This may mean that the verdict and the

answer to the special issue are inconsistent, but that inconsistency is allowed because the statute


        4
            Beck, 769 S.W.2d at 527-28 (bracketed material in original).
        5
            722 S.W.2d 140, 141 (Tex. Crim. App. 1986)(ellipsis in original).
        6
            Id. at 142.
        7
            Id.
                                                                      CRUMPTON DISSENT – 4

requires an “affirmative” finding.

       The Court’s opinion also seems to me to be inconsistent with the reasoning in Hooks v.

State.8 Hooks was charged with aggravated assault by threat with a deadly weapon, to-wit a firearm.9

The trial court found her guilty as charged and placed her on probation.10 Hooks argued that she was

not eligible for probation because the trial court effectively made an affirmative deadly weapon

finding by determining that she was guilty of the charged offense.11 This Court disagreed, holding

that as long as no affirmative finding was entered in the judgment, Hooks was eligible for

probation.12 While this holding focused on the difference between making an affirmative finding

and entering an affirmative finding, the Court also discussed how affirmative findings could be

made. We said:

       Polk v. State, 693 S.W.2d 391 (Tex.Cr.App.1985), is regarded as the seminal opinion
       on the “making” part of the subject, i.e., how an affirmative finding is made. The
       Court used Polk as the vehicle to reject “implied findings” of a deadly weapon.
       Rather, it insisted there be an “express determination” that a deadly weapon was used
       or exhibited, and delineated three manners by which “an affirmative finding may
       properly be made” when a jury is fact-trier.13

Since the jury in this case was the trier of fact, the question becomes whether it made a finding that

a deadly weapon had been used. If it did not, then the trial court had no authority to enter such a




       8
            860 S.W.2d 110 (Tex. Crim. App. 1993).
       9
            Id. at 111.
       10
            Id.
       11
            Id.
       12
            Id. at 113-14.
       13
            Id. at 112 (footnotes omitted).
                                                                      CRUMPTON DISSENT – 5

finding. The Court says, “The jury’s verdict was a finding that the defendant used a deadly weapon.”

But under Polk and Brooks, the jury’s verdict of guilt of a lesser-included offense in this case does

not constitute a finding of deadly-weapon use. And since a deadly-weapon finding was not made

by the jury, the trial court was without authority to enter one.

       The holdings in Polk and Brooks are consistent with the discussion in Beck and inconsistent

with the Court’s holding today. To hold as it does today, the Court must overrule Polk and Brooks,

and it must explain away the thoughtful discussion in Beck. These are things the Court’s opinion

does not purport to do.

       I respectfully dissent.

Filed: December 9, 2009
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