Chapter 10
Other Special Instructions
10.3 Instruction—Use or Exhibition of Deadly Weapon—By Defendant or Party
[Insert instructions for underlying offense. Include the following if the state contends either that the defendant personally used or exhibited the deadly weapon or that another party to the offense did so.]
Use or Exhibition of Deadly Weapon
If you find the defendant guilty of [offense], you must also address whether the state has proved, beyond a reasonable doubt, that a deadly weapon was used or exhibited during the commission of the offense or during immediate flight from committing it.
Relevant Statutes
To prove that a deadly weapon was used or exhibited, the state must prove, beyond a reasonable doubt, one of two elements. The elements are that—
- the defendant himself used or exhibited a deadly weapon during the commission of the offense or in immediate flight from committing it; or
- all of the following:
- the defendant was a party to the offense; and
- another party to the offense used or exhibited a deadly weapon during the commission of the offense or in immediate flight from committing it; and
- the defendant knew that a deadly weapon would be used or exhibited during the commission of the offense or in immediate flight from committing it.
Definitions
Deadly Weapon
“Deadly weapon” means—
- a firearm; or
- anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
- anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
Serious Bodily Injury
“Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Bodily Injury
“Bodily injury” means physical pain, illness, or any impairment of physical condition.
Firearm
“Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.
[Include the following if raised by the evidence.]
“Firearm” does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by chapter 46 of the Texas Penal Code [include if applicable: and that is—
- an antique or curio firearm manufactured before 1899, or
- a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition].
Party to the Offense
“Party to the offense” means any person who is responsible for an offense committed by another because—
- the person, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid another person to commit the offense; or
- the person and the other who committed the offense were members of a conspiracy to commit a felony, the offense was committed in furtherance of the unlawful purpose of the conspiracy, and the offense was one that should have been anticipated as a result of the carrying out of the conspiracy; or
- the person acted with the kind of culpability required for the offense and caused or aided an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; or
- having a legal duty to prevent commission of the offense and acting with intent to promote or assist the commission of the offense, the person failed to make a reasonable effort to prevent commission of the offense.
Application of Law to Facts
You must decide whether the state has proved, beyond a reasonable doubt, that a deadly weapon was used or exhibited during the commission of the offense or during immediate flight from committing it.
If you decide the state has proved this, indicate this in your verdict. If you decide the state has not proved this, indicate this in your verdict.
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge. Include the following at the end of the verdict form for a verdict of “guilty.”]
With regard to whether the defendant used or exhibited a deadly weapon, we find: (select one)
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Jury Submission of “Deadly Weapon” Question. Articles 42A.054 and 42A.204 of the Texas Code of Criminal Procedure provide for the making of a finding that a deadly weapon was used in the commission of an offense. If such a finding is made, it is to be included in the judgment. Tex. Code Crim. Proc. art. 42.01, § 1(21). The state may seek such a finding and must give the defendant notice of its intent to seek that finding, although the notice need not be in the charging instrument. Luken v. State, 780 S.W.2d 264, 266 (Tex. Crim. App. 1989).
If a jury is the trier of fact in a criminal prosecution, the jury is the appropriate entity to decide whether a finding of use of a deadly weapon is justified. Ex parte Thomas, 638 S.W.2d 905 (Tex. Crim. App. 1982). Accord Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). See generally Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985).
Procedurally, Polk made clear, submission of a special issue to the jury is appropriate in many situations. It is unnecessary in two types of cases. One is when the charging instrument or the application portion of the jury instructions explicitly requires proof of the use of a deadly weapon and the verdict is that the defendant is guilty “as charged in the indictment.” The other is when those same sources make clear that the jury must have found the use of an instrument that is a deadly weapon per se, such as a pistol, a firearm, or a handgun. Polk, 693 S.W.2d at 394.
Submission of a special issue is probably preferable in any situation in which there could be any doubt about whether the jury’s action included the necessary determination. The court of criminal appeals held that a trial judge could look to the jury instruction as well as the indictment to determine if a verdict of guilty of a lesser included offense included the necessary finding. Nevertheless, it commented that in such cases submission of a special issue is “a commendable practice.” Lafleur v. State, 106 S.W.3d 91, 92 n.6 (Tex. Crim. App. 2003).
The burden of proof is on the state, and that burden is proof beyond a reasonable doubt. Clearly the better practice is for the special issue itself to incorporate that burden of proof. Olivas v. State, 202 S.W.3d 137, 145 (Tex. Crim. App. 2006).
When Jury Submission Is Appropriate. Views have differed on when the deadly weapon issue is best submitted to the jury. Polk suggested that submission at punishment would be the “better practice,” reasoning that this is most consistent with the command in Tex. Code Crim. Proc. art. 37.07, § 1(a), that “[t]he verdict in every criminal action must be general.” Polk, 693 S.W.2d at 394 n.3. A later plurality opinion of the court of criminal appeals described submission at the guilt stage as the better practice. Hill v. State, 913 S.W.2d 581, 586 (Tex. Crim. App. 1996) (plurality opinion). See also Olivas, 202 S.W.3d at 142 n.9 (court of appeals’ holding that submission of deadly weapon issue at guilt was improper was not before court of criminal appeals, “but we note that the deadly weapon issue has been submitted in this manner in other cases”).
The Committee agrees that submission of the deadly weapon issue to the jury is better done at the guilt stage of the trial. This considerably simplifies the punishment stage instruction.
Definition of “Use” or “Exhibit.” The Committee considered whether to recommend that the deadly weapon instruction define either or both of the terms use and exhibit.
The leading cases defining these terms for purposes of reviewing the sufficiency of the evidence are Coleman v. State, 145 S.W.3d 649 (Tex. Crim. App. 2004), and Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App. 1989). “Use” as defined in this case law presents a stronger case for definition in the instructions than “exhibit.”
In Patterson, the court of criminal appeals quoted with apparent approval the court of appeals’ statement that the term use “extends . . . to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony.” Patterson, 769 S.W.2d at 941 (citing Patterson v. State, 723 S.W.2d 308, 315 (Tex. App.—Austin 1987)). But this suggests the employment of the weapon must actually facilitate the felony, that is, have some impact.
Other parts of the Patterson discussion indicate that the term use means instead to employ for a particular purpose. Patterson, 769 S.W.2d at 940–41. Under such an approach, whether a person “used” the weapon would turn in part on the person’s intent or purpose. It would not require any actual successful impact on the events.
Most likely, under Patterson and Coleman, any conduct with the weapon, or even its passive possession, is sufficient if done for the purpose of facilitating the felony.
This is, to some extent, inconsistent with the terms of the statute. See Tex. Code Crim. Proc. art. 42A.054(b)–(d). Literally interpreted, the statute seems to cover any use of the weapon during the relevant period, whether or not that use is intended to have, or actually has, any impact on the commission of the felony or escape from its commission. Patterson and Coleman, however, assume that the statute requires such a nexus between the use and the felony.
A definition might incorporate the substance of the following:
A person “uses a deadly weapon during the commission of a felony offense or in immediate flight from the commission” if the person in any way employs the deadly weapon to facilitate commission of the felony or escape from its commission. A person’s mere possession of a deadly weapon, if the person intends this possession to facilitate the felony or escape, may constitute use of that deadly weapon.
The Committee decided, however, not to recommend a definition of either “use” or “exhibit” in the instruction. For a decision regarding this, see White v. State, No. 05-93-01754-CR, 1995 WL 81372, at *5 (Tex. App.—Dallas Feb. 22, 1995) (not designated for publication) (trial court did not err in refusing to define “exhibit” in punishment stage charge). In most cases, jurors’ common-sense understanding of those terms should suffice to permit their proper application. Further, the case law does not provide clear and complete definitions of them for the exceptional situations in which general understanding might not suffice.
Deadly Weapon Finding Not Appropriate for Nonhuman Victims. In Prichard v. State, No. PD-0712-16, 2017 WL 2791524 (Tex. Crim. App. June 28, 2017), the court of criminal appeals held that the deadly weapon finding applies only to human victims. Thus, such a finding should not be submitted in a typical animal cruelty case.
Comment
The deadly weapon finding is provided for in Tex. Code Crim. Proc. arts. 42A.054(b)–(d), 42A.204. The definition of “deadly weapon” is from Tex. Penal Code § 1.07(a)(17). The definition of “serious bodily injury” is from Tex. Penal Code § 1.07(a)(46). The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8). The definition of “firearm” is from Tex. Penal Code § 46.01(3). The definition of “party to the offense” is based on Tex. Penal Code § 7.02(a).