Opinion issued July 3, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-01233-CR
LESLIE JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 854,071
MEMORANDUM OPINION
Appellant, Leslie Jones, killed Charles Keith Mueller by striking him on the head with a baseball bat. Appellant claimed that he killed Mueller in self-defense. The jury rejected this claim, convicted appellant of murder, and assessed punishment at 99 years’ confinement. We address (1) the legal and factual sufficiency of the evidence to support the jury’s finding that appellant committed murder and to support the jury’s implicit finding rejecting appellant’s self-defense claim, and (2) whether the trial court erred in making an affirmative deadly weapon finding in the judgment.
We modify the trial court’s judgment and, as modified, affirm.
Background
It is undisputed that appellant killed Mueller on August 19, 2000. The State and the defense presented different versions of the events leading up to the killing. The State presented evidence portraying the incident as an intentional and brutal murder. The defense argued that the killing occurred in self-defense during a fight between appellant and Mueller.
Keisha Narinsenga testified for the State. We summarize her testimony as follows.
Narinsenga met appellant two or three weeks before he killed Mueller. During that time, Narinsenga and appellant developed a sexual relationship.
Narinsenga met Mueller about one month before he was killed. At the time of his death, Narinsenga was staying at Mueller’s home. A couple of days before Mueller’s death, Narinsenga and Mueller had an argument. During that argument, Mueller made advances toward Narinsenga, which she construed as an attempted sexual assault. Following the argument, Narinsenga decided that she would leave Mueller’s home. She called appellant to pick her up. Narinsenga told appellant that Mueller had tried to rape her. When he arrived at Mueller’s home, appellant told Narinsenga that he did not have room in his car for her belongings. He stated that they would have to come back later to Mueller’s home. Mueller was not at home at the time.
The next day, Saturday, August 19, 2000, appellant drove Narinsenga back to Mueller’s house to pick up her belongings. When appellant and Narinsenga pulled up to Mueller’s house, Mueller was outside in the yard. Narinsenga told Mueller that she was there to pick up her belongings. Mueller responded, “Well, hurry up and come get your shit.” Narinsenga went into Mueller’s house to the bedroom to gather her belongings, which were in bags. Mueller carried the bags to the driveway. Appellant then took the bags from the driveway and placed them in his car.
Narinsenga was on the phone when she noticed appellant in the house. She was surprised to see appellant because she had removed all of her bags from the house. Appellant asked Narinsenga if she had all of her things, and she told appellant that she did. Appellant said, “Leave something.” Appellant then left the house. As Narinsenga was leaving, she passed by a closet, which was next to the front door. She remembered that she had left some shoes wrapped in a blanket in the closet.
After Narinsenga finished gathering her shoes, she was leaving the house when she saw appellant walking toward the garage with a baseball bat. Although appellant had been wearing a Hawaiian shirt, Narinsenga also noticed that he had removed it and was wearing only his undershirt and shorts. Narinsenga then noticed Mueller next to her. Mueller asked appellant why he was acting “like a bitch.” Narinsenga then noticed that Mueller had a hammer in his hand, down at his side. Appellant then tackled Mueller. Appellant had his arms around Mueller with his head against Mueller’s stomach. Appellant was using his head to push Mueller into different objects. Narinsenga saw appellant “slam” Mueller into the fireplace and wall. Narinsenga was screaming for the men “to stop,” but they continued to struggle. During the struggle, appellant dropped the bat and Narinsenga grabbed it. As she was leaving the house through the garage, Narinsenga saw appellant fall on top of Mueller. It appeared that Mueller had hit himself in the head with the hammer, and that appellant’s head might have struck something when he fell on top of Mueller. Although Mueller was still holding the hammer, Narinsenga never saw him strike or attempt to strike appellant with it. When Narinsenga last saw Mueller, he was lying on the living room floor. Narinsenga observed that Mueller had a “big red knot” on his forehead, but saw no blood. With the baseball bat still in her hand, Narinsenga tried to “run for it.” As Narinsenga was leaving, appellant approached her and attempted to take the bat. Although she resisted, appellant took the bat from Narinsenga. Appellant told Narinsenga to wait in the car, and she complied. Appellant returned to the house with the bat and shut the garage door. While waiting in appellant’s car, Narinsenga heard “fighting” noises coming from the house.
Appellant had been in the house three or four minutes when he returned to the car carrying the bat. Appellant threw the bat into the backseat. His undershirt was ripped and had blood on it. Appellant had scratches on his arms and neck. Appellant got into the car and told Narinsenga, “I killed that bitch.” Narinsenga looked at the bat in the backseat and saw blood on it. Appellant told Narinsenga to say that someone else had been at Mueller’s home before he and Narinsenga had arrived.
Appellant and Narinsenga drove to the house of appellant’s friend. Appellant discarded the bat in a trash can behind the friend’s house.
Assistant medical examiner Dr. Paul Shrode also testified for the State. Dr. Shrode performed Mueller’s autopsy. He concluded that the cause of Mueller’s death was “blunt multiple impact cranial facial trauma.” Dr. Shrode testified that Mueller had three deep facial lacerations, one of which fractured Mueller’s skull to the extent that the brain was visible through the fracture. He described numerous other fractures to Mueller’s skull and facial bones. Mueller’s chest and abdomen had “cylindrical” bruises that Dr. Shrode stated were consistent with injury inflicted by a baseball bat. According to Dr. Shrode, Mueller had been struck 12 to 15 times, with at least four blows to the head.
Dr. Shrode stated that the toxicology analysis performed as part of the autopsy indicated the presence of alcohol and cocaine in Mueller’s system. The analysis also revealed “marijuana metabolite,” which, according to Dr. Shrode, indicated that Mueller had used marijuana a day or two prior to his death.
The State also offered the testimony of several investigating police officers. The officers testified that the condition of Mueller’s home showed obvious signs of a struggle.
Detective Mark Schmidt of the Harris County Sheriff Department’s Homicide Division testified that appellant was arrested on August 28, 2000. Detective Schmidt stated that appellant had scratches on his arms, shoulder, and nose at the time of his arrest.
The State’s DNA experts testified that Mueller’s blood was found in appellant’s car. A police blood-spatter expert testified that Mueller’s blood was found on the walls and ceiling of his home. The expert opined that Mueller was less than two feet from the floor when his wounds were made.
Appellant testified at trial. Appellant admitted hitting Mueller with the baseball bat “a couple of times.” Appellant’s version of the events surrounding Mueller’s death differed from that given by Narinsenga in the following pertinent respects:
•Appellant denied that he had gone with Narinsenga to Mueller’s home on August 18, the day before Mueller was killed, when Mueller was not home. Appellant also denied telling Narinsenga during that visit that he had no room in his car for her belongings, and that they would have to return another time.
•Appellant denied that Narinsenga told him that Mueller had attempted to rape her.
•Appellant claimed that Mueller was the aggressor. Appellant testified that he was helping Narinsenga gather her shoes from the closet when Mueller attacked him. Appellant stated that Mueller swung the hammer wildly at him. Appellant testified that he grabbed the hammer and began struggling with Mueller.
•Appellant denied that he had retrieved a baseball bat from his car. He claimed that, during the struggle, he grabbed the bat from “the doorway of the closet.”
•Appellant stated that he never removed his shirt.
•Appellant denied that he told Narinsenga, “I killed the bitch,” when he returned to the car.
At trial, appellant described the events that immediately preceded the acts that led to Mueller’s death. Appellant testified that, during the struggle, he and Mueller fell to the floor. Appellant stated that he “blanked out for a second.” When appellant awoke, he saw Mueller attempting to get up. At that point, appellant stated that he grabbed the baseball bat from the closet. Expounding on this point, appellant testified as follows:
[Defense counsel]: When you picked up the baseball bat, why did you hit [Mueller]?
A. He appeared to me [sic] that he was getting up, like he wanted to come back after me.
Q. So why did you hit him?
A. I didn’t want him to get up and hit me or hit me with the hammer.
Q. The door to the house, do you know whether or not the front door . . . was open or closed at that point?
A. No, sir, I’m not sure if it was open or closed.
Q. Why didn’t you just get up and run away?
A. Because he was getting up. I’m not sure was he going to hit me when I turn my back to him or not. I’m not sure was he going to hit me when I turn around and try to run. I’m not sure.
Q. Did you intend to kill [Mueller] when you hit him with that baseball bat?
A. No, sir. I just wanted to get him off me so I can get away, basically just to leave me alone, to stop coming after me.
Discussion
A. Sufficiency of the Evidence
In his first six issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. In issues one through four, appellant complains that the evidence was legally and factually insufficient to prove the mens rea element of murder. In issues five and six, appellant contends that the evidence was legally and factually insufficient to support the jury’s implicit finding that appellant did not kill Mueller in self-defense.
1. Sufficiency of the Evidence: Murder
In two separate paragraphs, the indictment charged appellant with murder under subsections 19.02(b)(1) and 19.02(b)(2) of the Penal Code. Under these subsections, a person commits the offense of murder if he intentionally or knowingly causes another’s death or “intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” Tex. Pen. Code Ann. § 19.02(b)(1),(2) (Vernon 2003). The jury returned a verdict finding appellant “guilty of murder, as charged in the indictment.” Appellant contends that the evidence was legally and factually insufficient to establish that he acted with the requisite intent or knowledge.
A person acts intentionally with respect to the result of his conduct when it is his conscious objective or desire to cause the result; he acts knowingly when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(a),(b) (Vernon 2003). The accused’s mental state is a question of fact for the jury to ascertain, usually from circumstantial evidence, whether the accused intentionally or knowingly caused a person’s death or intended to cause that person serious bodily injury. See Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring) (citing Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984)); Childs v. State, 21 S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). A jury may infer intent or knowledge from facts that tend to prove its existence, including the acts, words, and conduct of the accused, the method of committing the crime, and from the nature of the wounds inflicted on the victim. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) (acts, words, and conduct); Cordova v. State, 698 S.W.2d 107, 112 (Tex. Crim. App. 1985) (methods and wounds).
In a legal-sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). In determining the legal sufficiency of the evidence to show appellant’s intent, and when faced with a record that supports conflicting inferences, we “must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
The evidence, viewed in the light most favorable to the verdict, shows that Narinsenga told appellant, a man with whom she had a sexual relationship, that Mueller had attempted to rape her. Appellant and Narinsenga went to Mueller’s home the day before Mueller was killed to pick up Narinsenga’s belongings. Mueller was not home at the time. Appellant told Narinsenga that they would have to return another time. Appellant and Narinsenga returned to Mueller’s residence the following day, which was a Saturday. Mueller was at home when they returned.
As Narinsenga finished gathering her belongings, appellant walked into Mueller’s home with a baseball bat. Appellant had removed his shirt and was wearing only his undershirt and shorts. Appellant tackled Mueller and began pushing him into objects. Narinsenga grabbed the bat and tried to leave with it. Appellant came after Narinsenga and took the bat away from her. Appellant told Narinsenga to go to the car. Appellant went back into the house with the bat. Appellant admits to striking Mueller with the bat. Appellant returned to the car several minutes later with the bloody bat and said, “I killed the bitch.” Appellant told Narinsenga to say that someone else had been at Mueller’s house before they had arrived.
The extent and type of Mueller’s wounds are also probative evidence of appellant’s intent. Mueller had three deep facial lacerations and numerous facial and skull fractures. Appellant hit Mueller in the head with such force that Mueller’s skull was cracked, exposing Mueller’s brain. Mueller had been dealt 12 to 15 blows, including at least four blows to the head.
The State’s forensic evidence showed that, although Mueller was no more than two feet from the floor when he was struck, appellant hit Mueller hard enough to cause Mueller’s blood to spatter on the walls and ceiling of his home.
We conclude that the State’s evidence of appellant’s culpable mental state was such that a reasonable juror could have found either (1) that appellant intentionally or knowingly caused Mueller’s death or (2) that appellant intended to cause serious bodily injury to Mueller and committed an act clearly dangerous to human life that caused Mueller’s death. Viewing the evidence in the light most favorable to the verdict, we hold the evidence to be legally sufficient.
We next turn to the factual sufficiency of the evidence. In a factual-sufficiency review, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. See Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). But we must avoid substituting our judgment for that of the factfinder. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The factfinder is the sole judge of the weight and credibility of witness testimony. Id.
In our review, we must consider the most important evidence that the appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). In this regard, appellant cites the following evidence:
• Appellant’s testimony that, when he and Narinsenga arrived at Mueller’s residence on August 19, Mueller told Narinsenga, “Go get your fucking clothes bitch.”
• Appellant’s testimony that he was helping Narinsenga gather her shoes, when Mueller appeared with the hammer in his hand; appellant had nothing in his hands.
• Appellant’s testimony that Mueller swung at him with the hammer.
• Appellant’s testimony that he grabbed the hammer and that he and Mueller began struggling throughout the house.
• Appellant’s and Narinsenga’s testimony that Mueller hit himself in the head with the hammer.
• Appellant’s testimony that, after he and Mueller fell to the floor, appellant “blanked out” for a short time.
• Appellant’s testimony that, because he thought Mueller was about to attack him, he grabbed the bat from the closet and hit Mueller with it.
• Narinsenga’s testimony indicating her uncertainty as to whether appellant had the bat first, or whether Mueller had the hammer first.
• Narinsenga’s testimony that she never saw the bat in appellant’s car before he used it to kill Mueller.
• Dr. Shrode’s testimony that the toxicology report associated with Mueller’s autopsy showed that Mueller was under the influence of drugs and alcohol at the time he was killed.
• Dr. Shrode’s inability to state what type of behavior Mueller would have displayed while under the influence of the drugs detected in his system.
• Dr. Shrode’s testimony that he could not state conclusively that a baseball bat caused Mueller’s injuries.
• Appellant’s testimony that he did not intend to kill Mueller.
Appellant contends that the above-cited evidence disproves the requisite element of intent. Appellant claims that a comparison of the evidence that proves appellant possessed the requisite culpable mental state with the above-cited evidence shows that the evidence was factually insufficient to support the jury’s verdict. We disagree.
Much of the evidence cited by appellant, as set out above, supports his defensive theory that appellant struck Mueller to protect himself from Mueller’s attack. However, as discussed under our legal-sufficiency review, ample evidence exists in the record to support the State’s theory that appellant attacked Mueller and then intentionally killed him. In this regard, Narinsenga’s testimony was critical to the State’s theory of the case. To the extent that Narinsenga’s account of the events preceding Mueller’s death directly contradicted the account offered by appellant, it was for the jury to resolve these factual disputes. See Johnson, 23 S.W.3d at 7. As the factfinder, the jury was free to believe Narinsenga and disbelieve appellant. The jury was equally as free to disbelieve appellant’s statement that he did not intend to kill Mueller.
In addition to his own testimony, appellant also relies on portions of Narinsenga’s testimony to support his factual-sufficiency challenge. However, in doing so, appellant takes Narinsenga’s testimony out of the context of Narinsenga’s other testimony. Although Narinsenga testified that she did not see a bat in appellant’s car before Mueller was killed, Narinsenga also testified that she saw appellant carrying the bat before the killing, as he walked toward Mueller’s garage. Appellant correctly points out that Narinsenga testified that she did not know whether appellant had the bat first or whether Mueller had the hammer first; however, Narinsenga also testified that she saw appellant with the bat before she saw Mueller with the hammer.
Further, when viewed neutrally, the evidence showing that Mueller was under the influence of alcohol and controlled substances when he was killed could support either the defense’s or the State’s theory of the case. The jury could have inferred that, while under the influence of these substances, Mueller became belligerent and attacked appellant, or the jury could have reasonably concluded that Mueller’s condition made him more vulnerable to appellant’s attack.
We conclude that the State’s proof of appellant’s culpable mental state is not
so obviously weak that it undermines confidence in the jury’s verdict; neither is the
State’s proof greatly outweighed by contrary proof. See Zuliani, 97 S.W.3d at 593-94. Viewing all of the evidence in a neutral light, we hold the evidence to be
factually sufficient.
We overrule appellant’s issues one, two, three, and four.
2. Sufficiency of the Evidence: Self-defense
In issues five and six, appellant contends the evidence was legally and factually insufficient to defeat his theory of self-defense.
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31 (Vernon 2003). To justify deadly force in self-defense, the actor must show, among other things, that (1) a reasonable person in the actor’s situation would not have retreated, and (2) the actor reasonably believed that the deadly force was immediately necessary to protect himself against the other’s use or attempted use of deadly force. Tex. Pen. Code Ann § 9.32 (Vernon 2003).
The State has the burden of persuasion in disproving evidence of self-defense once the issue is raised. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991); Wilkerson v. State, 920 S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1996, no pet.). This is not a burden of production, i.e., one that requires the State affirmatively to produce evidence refuting the self-defense claim; rather, it is a burden that requires the State to prove its case beyond a reasonable doubt. Saxton, 804 S.W.2d at 913-914; Wilkerson, 920 S.W.2d at 406.
The reasonableness of an accused’s belief that force was required to defend himself is viewed from the defendant’s standpoint at the time he acted. Juarez v. State, 886 S.W.2d 511, 514 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). The issue of self-defense is a fact issue to be determined by the jury, and a jury is free to accept or reject the defensive issue, even if the evidence is uncontroverted. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992).
If the issue of the existence of self-defense is raised by the evidence, the jury shall be instructed that a reasonable doubt on the issue of self-defense mandates acquittal. Tex. Pen. Code Ann.§ 2.03(d) (Vernon 2003). A jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory. Saxton, 804 S.W.2d at 914.
When a defendant challenges the legal sufficiency to support the rejection of a defense, we examine all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and also could have found against the appellant on the self-defense issue beyond a reasonable doubt. Id. A factual-sufficiency challenge to a rejection of a defense requires us to review all of the evidence in a neutral light and to ask whether the State’s evidence, if taken alone, is too weak to support the jury’s rejection of the defensive theory, and also whether the proof supporting rejection of the defense, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani, 97 S.W.3d at 594-95.
Appellant concedes that he killed Mueller. And, as discussed above, we have found that the evidence offered to prove appellant possessed the requisite culpable mental state was legally and factually sufficient to support the jury’s verdict. We, likewise, reject appellant’s legal and factual insufficiency complaints relating to his self-defense claim.
When a jury’s determination depends primarily on its evaluation of the witnesses’ demeanor and credibility, it is entitled to almost total deference. Johnson, 23 S.W.3d at 8-9. The jury’s evaluation of the credibility of appellant and Narinsenga was crucial to its verdict. As discussed above, the jury was free to reject appellant’s claim that (1) Mueller attacked him, (2) appellant retrieved the baseball bat from the closet, (3) appellant could not retreat, and (4) appellant feared that Mueller was about to get up from the floor and strike appellant with the hammer. The jury was equally entitled to believe Narinsenga’s account of the events leading up to Mueller’s death, including that (1) appellant attacked Mueller, (2) Narinsenga never saw Mueller swing the hammer at appellant, (3) appellant entered the house carrying the baseball bat, (4) appellant grabbed the bat from Narinsenga when she was attempting to leave the house with it, (5) appellant told Narinsenga to go to the car, (6) appellant went back into the house with the bat, and (7) appellant came back to the car three or four minutes later with a bloody bat and undershirt and announced, “I killed that bitch.”
We note that evidence exists in the record, other than appellant’s own testimony, that could be interpreted to support appellant’s self-defense theory. It is undisputed that Mueller had a hammer in his hand during his struggle with appellant. But appellant admitted that Mueller never hit him with the hammer. Appellant also admitted that, when he grabbed the bat and hit Mueller with it, he did not know whether Mueller had the hammer in his hand.
It is also undisputed that Mueller was under the influence of drugs and alcohol when he was killed. The evidence showed that Mueller was acting strangely when appellant and Narinsenga arrived at his house. Narinsenga testified that Mueller was in the yard talking to himself when they arrived. Although this evidence could be interpreted to support appellant’s self-defense claim, the jury could also have reasonably concluded from this evidence that Mueller was less physically able to pose a threat to appellant.
Other record evidence also weighs against appellant’s self-defense theory. The evidence showed that while Mueller had facial and skull fractures, appellant had only scratches. The medical examiner stated that Mueller had been dealt 12 to 15 blows, with at least four blows to the head. Appellant struck Mueller hard enough to crack open his skull and for Mueller’s blood to spatter on the walls and ceiling. The State’s blood-spatter expert testified that Mueller was no more than two feet from the floor when he was struck.
Applying the applicable standards of review and giving due deference to the factfinder’s determinations, we hold that the evidence was both legally and factually sufficient to support the essential elements of the offense and the jury’s implicit rejection of appellant’s claim of self-defense. Accordingly, we overrule issues five and six.
B. Affirmative Deadly-Weapon Finding
In issue seven, appellant complains that the trial court erred by entering an affirmative deadly-weapon finding in the judgment. We agree.
The jury can make an affirmative deadly-weapon finding in three ways: (1) by finding the defendant guilty as charged in the indictment if the indictment alleges use of a “deadly weapon”; (2) by finding the defendant guilty as charged in the indictment if the indictment names a weapon that is a deadly weapon per se; or (3) by making an affirmative finding to a special issue on use of a deadly weapon. Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985).
Here, the jury did not make an affirmative deadly-weapon finding by any of the three means specified in Polk. The indictment charged that appellant caused Mueller’s death by striking him with an unknown object. Although the jury found appellant “guilty of murder, as charged in the indictment,” the indictment did not use the nomenclature “deadly weapon” and did not name a weapon that is a deadly weapon per se. The jury was not asked to answer a special issue on use of a deadly weapon.
The State argues that, because the indictment alleged Mueller’s death was caused by appellant’s striking Mueller with an unknown object, that unknown object is a deadly weapon. In its brief, the State wrote, “By finding appellant guilty as charged in the indictment, the jury necessarily made an affirmative finding of a deadly weapon.” In other words, the State contends that the deadly weapon finding can be implied; however, basing an affirmative deadly weapon in a judgment on an “implied” finding by the jury was explicitly considered and rejected by the Polk court. See id. The court held that, when the jury is the trier of fact at both the guilt and punishment phases, the deadly weapon finding must be an “express determination that a deadly weapon or firearm was actually used or exhibited during the commission of the offense.” Id. at 393. An “implied” deadly-weapon finding will not suffice. Id. at 396. The Court of Criminal Appeals, in Lafleur v. State, recently reaffirmed its holding in Polk that there must be an express finding of a deadly weapon when the jury is the factfinder. No. 1447-02, slip op. at 2 (Tex. Crim. App. May 21, 2003).
The State writes in its brief that it “recognizes it is asking this Court to find an exception” to Polk. The case law does not support such an exception. Because the jury made no express determination that appellant used a deadly weapon to murder Mueller, we hold that the trial court erred in entering an affirmative deadly weapon finding in the judgment. We further hold that such error was harmful. See Edwards v. State, 21 S.W.3d 625, 627 (Tex. App.—Waco 2000, no pet.) (holding, in murder case, that erroneous deadly-weapon finding was harmful error warranting judgment to be modified deleting deadly-weapon finding); Rachuig v. State, 972 S.W.2d 170, 179 (Tex. App.—Waco 1998, pet. ref’d) (holding trial court’s error in entering deadly-weapon finding in judgment was harmful to appellant because appellate court could not “presume to know the effect this improper finding might have on [the appellant’s] parole eligibility under the guidelines established by the Board of Pardons and Paroles” and Texas Code of Criminal Procedure article 37.12 requires the trial court to enter “the proper judgment”).
Accordingly, we sustain issue seven and modify the judgment to delete the deadly-weapon finding.
Conclusion
As modified, we affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Higley.
Do not publish. Tex. R. App. P. 47.2(b).