¶1dissenting.
¶2The majority opinion treats the contention presented by Nancy Marie Beck, henceforth applicant, as though it was before this Court either on direct appeal or was being presented to this Court through the petition for discretionary review process. However, applicant presents her contention pursuant to Art. 11.07, V.A.C.C.P., this State’s postconviction habeas corpus statute, which is invoked when a defendant claims that he was deprived of a fair and impartial trial, or has been deprived of some Federal or State Constitutional right to which he should have received. Given the record of this cause, I do not believe that applicant’s contention is a fit and proper subject for this Court to review under its postconviction habeas corpus jurisdiction.
¶3Therefore, I respectfully file this dissenting opinion to the majority’s decision to consider applicant’s contention that the affirmative finding that a deadly weapon was used or exhibited when she committed the offense of voluntary manslaughter should be deleted from the trial court’s judgment because she was not given sufficient notice in the trial court that this was going to occur. I also find that applicant was given sufficient notice, although it is not the kind of notice that I might prefer that a defendant should be given. However, I find that the kind of notice that applicant was given is sufficient to satisfy either the due course of law clause of this State’s Constitution or the due process of law clause found in the Fourteenth Amendment to the Federal Constitution, and further find that the lack of such notice about which applicant complains did not deprive her of a fair and impartial trial.
¶4Applicant argues that the affirmative finding that was entered in the trial court’s judgment should be deleted from the trial court’s judgment for the following reasons: (1) “The State did not plead in the indictment that the applicant used or exhibited a deadly weapon in the commission of the offense”, and (2) “The State did not file any special plea that would give the applicant notice that the State intended to seek an affirmative finding.”
¶5The record reflects that applicant was convicted by a jury of committing the offense of voluntary manslaughter. The jury also assessed her punishment at ten years’ confinement in the Department of Corrections. Thereafter, while represented by the same attorney who represented her at trial, she appealed her cause to the Third Court of Appeals. She did not raise on direct appeal the contention that she raises in this cause. See the Third Court of Appeals’ unpublished opinion of Beck v. State, No. 3-84-252-CR, May 22, 1985. Nor did she, through the same attorney who continued to represent her, present the conten*531tion that she raises in this cause in the petition for discretionary review that he filed in this Court on her behalf. The petition was refused on June 4, 1986, and motion for rehearing was denied on November 5, 1986. See Beck v. State, Court of Criminal Appeals Number 827-85. Nor does applicant’s present and new attorney in this cause allege good cause why her contention was not raised either on direct appeal or in the petition for discretionary review that was refused. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
¶6I also do not find where applicant has satisfied this Court’s stringent requirements that were laid down in Ex parte Maldonado, 688 S.W.2d 114 (Tex.Cr.App.1985), which holds that if a record of the trial exists, it must be made a part of the postconviction application for the writ of habeas corpus, or the applicant must establish that the error about which he claims occurred at his trial “so infected the trial process as to deny him a fair and impartial trial.” (116). The trial court record is not before us, nor does applicant’s present counsel assert that the finding deprived her of a fair trial.
¶7Applicant asserts that because her indictment did not allege that the trial judge might later enter in the trial court’s judgment the affirmative finding, the finding should be deleted from the trial court’s judgment. Although it is true that the indictment is silent that the trial judge might later enter in the judgment the above finding, there is no requirement in our law, not even under Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987), that the indictment must contain such an allegation. Our law before today’s opinion, under Ex parte Patterson, was simply that the defendant must be given some notice that the trial judge might later enter in the trial court’s judgment such a finding. The record of this cause, however, actually shows that applicant and her attorney received notice, although it is not the kind of notice that I prefer should be given.
¶8The record reflects that during the guilt stage of applicant’s trial the trial judge, apparently after giving applicant and her very experienced criminal defense trial attorney, who was also a former very well respected district court judge of this State, who also represented her on direct appeal to the Third Court of Appeals and in the petition for discretionary review proceedings before this Court, the opportunity to complain about his, the trial judge, submitting to the jury the special issue that I have attached to this opinion as “Appendix A.” They made no objection to the trial judge submitting the issue to the jury, even though there is no statutory authority that gives a trial judge of this State the authority to submit such an issue to the jury. This makes it obvious to me that applicant and her attorney were well aware of, and thus received notice, that the trial judge might later enter in the trial court’s judgment the above finding, or at least they were aware or should have been aware that the trial judge might later invoke the provisions of Art. 42.01, V.A.C.C.P., or Art. 42.-12, § 3g(a)(2), V.A.C.C.P., formerly Sections 3f(a)(2) and 15(b). See and compare Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
¶9In Polk v. State, 693 S.W.2d 391 (Tex.Cr.App.1985), based upon this Court’s decision that it was proper for the trial judge to submit a special issue to the jury on the deadly weapon issue, I concluded in the concurring and dissenting opinion that I filed in that cause that, “If the issue is to be submitted, it should be submitted only at the guilt stage of the trial. The determination by the trier of the facts, whether a deadly weapon was used or exhibited during the commission of the offense by the accused, actually goes to the commission of the offense.” (1985). Therefore, given what occurred in this cause, I find that during the guilt stage of the trial applicant received sufficient notice that an affirmative finding might later be entered in the trial court’s judgment.
¶10Therefore, this Court should dismiss applicant’s cause because it was improvidently ordered filed.
¶11Given what I have stated, I believe to write more would merely pile more obiter *532dictum on the pile of obiter dictum that the majority has already stacked. Nevertheless, I am compelled to additionally state that I also dissent to the majority opinion’s broad and general holding, either express or implied, that if the charging instrument alleges that the accused committed a homicide, and it is also alleged that he did so by or through the use of some solid, gaseous, or liquid substance, and the defendant is found guilty of that offense, or some lesser included offense of that offense, this will be sufficient notice to the accused that the trial judge may later enter in the trial court’s judgment an affirmative finding that a deadly weapon was used or exhibited in the commission of the offense for which the accused was convicted, and the defendant need not be given any other kind of notice of this contingency, either formal or informal.
¶12Today, we should praise Patterson for the contributions that he made to our criminal justice system during the short period of time that he lived within that system. However, after today’s majority opinion, we should also exclaim from the rooftops: “The great and mighty Patterson is dead! Praise him but no longer recognize him, for Beck killed him and a majority of this Court, after first ordering that he be cremated, buried his ashes! But People, also remember, like the great Phoenix, the great and mighty Patterson may someday arise youthfully alive from his ashes to live another day.” Also see the dissenting opinion that I filed in Gilbert v. State, 769 S.W.2d 535, handed down this date.