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946 S.W.2d 73

Whatley v. State

Court of Criminal Appeals of Texas

Decided May 14, 1997

Court of Criminal Appeals of Texas · decided 1997-05-14

Key passage — most relied on by later courts

“In the instant case, appellant acknowledges that he received proper notice from the indictment in Count I that the State would seek an affirmative finding of the use or exhibition of a deadly weapon, “to wit: a screwdriver.” That element of the offense of aggravated robbery as charged was submitted to the jury and rejected when the jury found appellant guilty of the lesser-included offense. Appellant in effect contends that this concluded the State’s intention to seek an affirmative finding of a deadly weapon of which he had been given notice. Without further notice, written or otherwise, and without further evidence on the issue, the penalty stage of the trial was conducted. At this point, appellant learned for the first time that the State was asking for a special issue type submission of a different deadly weapon charge, this time allowing the jury to first determine the nature of instrument or weapon used and then to decide if the chosen instrument or weapon was used as a deadly weapon.”

quoted by 1 later decision, including Flenteroy v. State

“[I]f a defendant pointed a gun at another person and commanded that person to engage in conduct constituting a capital or first degree felony, that defendant would have “used or exhibited” a deadly weapon during the offense of solicitation. This same reasoning applies to a “request” or an “attempt to induce” except that the use of a weapon is merely persuasive rather than coercive. The persuasive impact of the weapon may be a part of the request or the attempt to induce conduct by strengthening those elements of the solicitation. The offense need not be based upon words alone. Hence, merely exhibiting a deadly weapon to an accomplice during a solicitation transaction may be sufficient to support a deadly weapon finding — especially where, as in the present case, the weapons were deadly weapons per se.”

quoted by 1 later decision, including Searcy v. State

Applies TX PE § 15.03 · TX PE § 71.03

Relies on Toussie v. United States · Patterson v. State · Barnes v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1997-05-14

How this case has been cited

Cited by 21 later decisions — most recently October 2016

21 state decisions

100199720002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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WOMACK, Judge,

¶1concurring.

¶2I join the opinion of the Court.

¶3I write to point out an amphiboly that can arise when judges say an offense was “complete.” One sense of “complete” is “having all its parts, not lacking anything”; another is “finished.” Oxford American Dictionary 129 (1980). In the former sense, an offense is complete — legally complete — as soon as each element has been committed. But that does not mean that the offense is finished as a matter of fact.

¶4For example, if an actor has notice that entry onto property is forbidden and knows he does not have the consent of the owner, a criminal trespass is legally complete the instant the actor enters the property. But the offense is not factually complete until the actor leaves the property.

¶5When we are trying to decide whether an offense was complete, we must know whether we mean legally complete or factually complete. The confusion of these different meanings of “complete” can lead to incorrect decisions.

¶6Article 42.12, § 3g(a)(2) of the Code of Criminal Procedure requires it to be shown that a deadly weapon was used or exhibited “during the commission of a felony offense.”1 The decision whether the use or exhibition of a deadly weapon occurred during the commission of the offense is a factual one. The weapon must have been used or exhibited before the offense was factually complete, that is, before it was finished. Whether the offense was legally complete (because each of the elements had been committed) before the weapon was used, is not the issue.

¶7If the hypothetical trespasser entered the property without a deadly weapon and picked up one to use as he trespassed, he would have used a deadly weapon during the commission of the offense, although its use did not begin before the offense was legally complete.

¶8Whatley’s offense may have been legally complete if he committed each element of the solicitation offense at his first meeting with Williamson and Williams, but that does not mean the offense was factually finished at that time. He was still requesting, commanding, or attempting to induce them to commit the murder when he introduced the handgun into the offense. The affirmative finding was supported by the evidence.

¶9. Or during immediate flight therefrom. Flight is not involved in this case.

¶101. Appellant’s first ground for review asks:

Can an affirmative finding of a "deadly weapon” be made, where neither the indictment, nor the State's subsequent written "notice,” nor the special issue instruction, ever designate any specific physical object as the alleged "deadly weapon” in the case?
BAIRD, Judge,

¶11concurring and dissenting.

¶12I concur in the majority’s treatment of the first ground for review. Ante, at 74-76.1 However, for the following reasons, I dissent to the majority’s treatment of appellant’s second ground for review. Ante, at 76-77.2

¶13*78I.

¶14The majority holds the mere exhibition of a deadly weapon to an accomplice during a solicitation transaction may be sufficient to support a deadly weapon finding for the offense of solicitation. Ante, at 77. However, the majority does not apply that holding to the facts of the instant case. Instead the majority uses a footnote to hold the issue is not before us because it was not raised in the Court of Appeals, addressed by the Court of Appeals, or raised by appellant in his petition for discretionary review. Ante, at 76-77, n. 6. If the footnote is correct, the second ground for review should be dismissed as improvidently granted because it does not impact the decision of the Court of Appeals. See, Tex.R.App.P. 200 (Court of Criminal Appeals reviews “decisions” of the courts of appeals.) Consequently, the majority’s discussion of the second ground for review is nothing more than obiter dictum.

¶15However, contrary to footnote 6, the issue was addressed by the Court of Appeals. Specifically, the State, in responding to the points of error challenging the deadly weapon finding, relied on Patterson v. State, 769 S.W.2d 938, 941 (Tex.Cr.App.1989), contending: “In order to ‘exhibit’ a deadly weapon it need only be consciously displayed during the commission of the required felony offense.” State’s brief on direct appeal, pg. 7.3 The Court of Appeals agreed and held: “A shotgun and handgun were given to Williamson and Williams in the course of the solicitation.” Whatley v. State, slip op. pg. 10,1994 WL 699077 (Tex.App.—Houston [14 Dist.] 1994). Therefore, the second ground for review does impact the decision of the Court of Appeals. Accordingly, the majority should apply its holding to the instant case and decide if appellant used or exhibited a deadly weapon during the commission of the solicitation or in immediate flight therefrom.

¶16II.

¶17A.

¶18Most offenses are complete when each of their elements have occurred. Barnes v. State, 824 S.W.2d 560, 562 (Tex.Cr.App.1991)(citing United States v. Smith, 740 F.2d 734, at 736 (9th Cir.1984)). However, some offenses are “continuing in nature.” To determine whether an offense is continuing we utilize the rationale employed by the United States Supreme Court in Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970), where the Court stated:

... the doctrine of continuing offenses should be applied in only limited circumstances ... such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion or the nature of the crime is such that Congress must assuredly have intended that it be treated os a continuing one.

¶19In Barnes, the State contended theft should be treated as a continuing offense. Id.,824 S.W.2d at 561. Specifically, the State asked us to construe the statute so that every day a defendant exercised control over stolen property would constitute a separate offense. We refused because the explicit language of the statute did not compel such a conclusion and the nature of the offense was not such that the legislature must have intended for theft to be treated as a continuing offense. Id.,at 562 (citing Toussie). Such a judicial construction would have usurped “the authority of the legislature in an area controlled exclusively by it.” Ibid.4

¶20B.

¶21Appellant was convicted of solicitation of capital murder pursuant to Tex. Penal Code Ann. § 15.03, which provides:

*79A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.

¶22The legislature has not designated § 15.03 as a continuing offense. Therefore, the offense of solicitation is complete when the defendant has intent and acts to induce another to engage in felonious conduct. State v. Brinkley, 764 S.W.2d 913, 915 (Tex.App.—Tyler 1989); and, Majid v. State, 713 S.W.2d 405, 407-408 (Tex. App.—El Paso 1986).

¶23III.

¶24A

¶25Because solicitation is not a continuing offense, for an affirmative finding to be appropriate, the State must prove either the use or exhibition of a deadly weapon during the commission of the offense or in the immediate flight therefrom. Art. 42.12, § 3g(a)(2). In Patterson v. State, 769 S.W.2d 938, 940-941 (Tex.Cr.App.1989), we held a deadly weapon finding is appropriate if a deadly weapon is used or exhibited to facilitate the commission of the charged offense. Id., at 940. We explained:

... [U]sed ... a deadly weapon during the commission of the offense means that the deadly weapon was employed or utilized in order to achieve its purpose. ... [and] exhibited a deadly weapon means that the weapon was consciously shown or displayed during the commission of the offense.

¶26Id, at 941 (internal quotations omitted). In other words, it is impossible for the deadly weapon to be used or exhibited in a manner to facilitate an already completed offense. Therefore, in the instant case, if the appellant did not use or exhibit a deadly weapon during the commission of the solicitation or in immediate flight therefrom, a deadly weapon finding is not authorized.

¶27B.

¶28The record established that on November 1, 1991, appellant met his accomplices, paid them $700.00 on a murder contract, and gave them a photograph of the intended victim and a map. Appellant had the intent to have the victim murdered and used money to induce his accomplices to carry out the murder. During this meeting each of the elements of solicitation occurred; therefore, the offense was complete. However, appellant did not use or exhibit a deadly weapon during the November 1, 1991, meeting or in immediate flight therefrom.

¶29After the solicitation was complete, two additional meetings occurred. On November 4, 1991, appellant met and gave the accomplices a handgun. On December 11, 1991, appellant met with one of the accomplices and gave him a shotgun. Only at these subsequent meetings is there evidence of a deadly weapon. Because the solicitation was complete before appellant provided the firearms, a deadly weapon finding is not authorized.

¶30Accordingly, I dissent to the resolution of appellant’s second ground for review.

¶31. Appellant’s second ground for review asks:

In the prosecution for an inchoate offense, such as solicitation of murder, under Tex. Penal *78Code Ann. § 15.03, is the "use or exhibition” of a deadly weapon allowable, where no eventual attempt to "use" weapons against the complaining witness was ever made, and where the only place that weapons were "exhibited” was between appellant and his accomplices during the solicitation transaction?

¶32. All emphasis is supplied unless otherwise indicated.

¶33. In Barneswe noted the Legislature explicitly designated the offense of Engaging in Organized Criminal Activity, Tex. Penal Code § 71.03(4), as a continuing offense. Barnes, 824 S.W.2d at 562. Cf., Lawhorn v. State, 898 S.W.2d 886, 889-890 (Tex.Cr.App.1995)(Legislature did not intend for escape statute to be construed as a continuing offense.).

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