Willmann v. State

¶1concurring in part, dissenting in part.

¶2I refuse to ascribe to the proposition that there is any logical reason to make a distinction between a gun, a handgun or a pistol insofar as two are deadly weapons per se and the other is not.

¶3In Dade v. State, 622 S.W.2d 580 (Tex.Crim.App.1981) it was recognized that a handgun is a deadly weapon per se. (citations omitted). See also Ex parte McLemore, 717 S.W.2d 634 (Tex.Crim.App.1986). In Williams v. State, 567 S.W.2d 507 (Tex.Crim.App.1978), a pistol was found to be a deadly weapon per se. The same was true of a firearm in Stewart v. State, 532 S.W.2d 349 (Tex.Crim.App.1976), and a 30-30 cali-bre rifle in Bravo v. State, 627 S.W.2d 152 (Tex.Crim.App.1982) (en banc).

¶4A firearm is a deadly weapon per se because the legislature decreed that it be so. See TEX.PENAL CODE ANN. § 1.07(a)(ll) (Vernon 1974); Ex parte Campbell, 716 S.W.2d 523 (Tex.Crim.App. 1986). Deadly weapon is in § 1.07(a)(ll) defined as:

(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.

¶5A firearm is “an instrument used in the propulsion of shot, shell, or bullets by the *550action of gunpowder exploded within it.” 2 BOUVIER’S LAW DICTIONARY 1230 (8th ed. 1914). See also definitions of firearm in Ex parte Campbell, supra.

¶6If a handgun and a pistol are deadly weapons per se because they are firearms, then I see no logical reason to exclude a gun from the category of a deadly weapon per se.

¶7A gun has been defined as “any portable firearm, as a rifle, musket, carbine, etc. ... a pistol or revolver ... ”, FUNK & WAG-NALLS NEW COLLEGE STANDARD DICTIONARY 526 (1956); “Any portable firearm, as a rifle; any similar device for projecting something”, NEW WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE 431 (1981); compared to a rifle, cannon, and revolver, THE NEW RO GET’S THESAURUS 42 (rev. ed. 1978) (see arms); “a portable firearm (as a rifle, shotgun, carbine, pistol)”, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1011 (1981).

¶8I would take the same logical approach taken by Presiding Judge Onion and the majority in Ex parte Campbell, supra,when considering the status of a handgun as a deadly weapon per se and extend it to a “gun.” To do otherwise is nonsensical inasmuch as the common meaning of a gun is to be found encompassed under the term “firearm” as are handgun and pistol.

¶9The majority opinion can only be correct if one concedes that a gun is not a deadly weapon per se, something I am not prepared to do in the absence of some guidance by the Texas Court of Criminal Appeals.

¶10I believe that the majority goes astray when it relies on Boyett v. State, 692 S.W.2d 512 (Tex.Crim.App.1985) (en banc) for the proposition that a gun is not a deadly weapon per se. A close reading of Boyettreveals that it has totally misconstrued the language in Chavez v. State, 657 S.W.2d 146 (Tex.Crim.App.1983) (en banc)1 its sole point of reference, when it holds that a gun is not a deadly weapon per se. Chavez, in fact, merely holds that “gun” has not been found to be a deadly weapon per se. Clearly that is not saying that “gun” is not deadly per se but only that the question of status is open for future determination. Unfortunately Boyettis not the only case erroneously misconstruing Chavez. See also Ex parte Grabow, 705 S.W.2d 150 (Tex.Crim.App.1986) (en banc); Polk v. State, 693 S.W.2d 391 (Tex.Crim.App.1985) (en banc); Wissinger v. State, 702 S.W.2d 261 (Tex.App.—Houston [1st Dist.] 1985, pet. ref’d) and see cases perpetuating the error by following the Boyettconclusion i.e., Smith v. State, 721 S.W.2d 844 (Tex.Crim.App.1986); Easterling v. State, 710 S.W.2d 569 (Tex.Crim.App.),2cert. denied, — U.S. —, 107 S.Ct. 170, 93 L.Ed.2d 108 (1986); Ex parte Grabow, supra.

¶11Nevertheless, and in spite of the recent rash of cases being misled by BoyettI am unaware of any case where the question of “gun” being addressed directly has resulted in a holding that a “gun” is not a deadly weapon per se. I dare say such an opinion will be hard pressed to distinguish “gun” from pistol or handgun to justify different treatment, other than as a firearm.

¶12Under authority of Ex parte Campbell, supra,and Polk v. State, supra, the jury as trier of fact did in fact make an affirmative finding via its verdict.

¶13In Polkit was stated,

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 has been specifically plead as such (using the nomenclature ‘deadly weapon’) in the indictment. (Applies where the verdict reads, *551‘guilty as charged in the indictment.’ See Barecky [v. State, 639 S.W.2d 943 (Tex.Cr.App.1982) ], supra.)

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, (emphasis in original)

¶14Polk, supra at 396.

¶15In the instant case the indictment did not specifically plead the instrument used using the nomenclature “deadly weapon” nor was a special issue submitted to the jury. Therefore, if the verdict can be construed as an affirmative finding, it must be so because it fits into category “2,” that is, the instrument is a deadly weapon per se or a firearm.

¶16In my opinion the instant case is no different from Ex parte Campbell, supra.A firearm is a deadly weapon and a gun is a firearm.

¶17I would hold that the jury's verdict making reference to the indictment together with the fact that a gun is a deadly weapon per se is a sufficient affirmative finding that a deadly weapon was used in the commission of the offense. I would overrule appellant’s fifth point of error seeking to set aside the affirmative finding in the judgment. Moreover, I would not characterize the finding as a trial court finding inasmuch as the reference to the expression “gun used” is nothing more than an entry by the court reflecting the finding of the jury as evidenced by their verdict.

¶18I concur with the majority opinion affirming the conviction but dissent to the action of the majority ordering reformation of the judgment.