dissenting.
In pertinent part, the affirmative finding statute prescribes a multistepped process depending on what is found, viz:
First, an affirmative finding must be made by the proper fact finder that the defendant used or exhibited a deadly weapon during the commission of an offense, et cetera [Polk v. State, 693 S.W. 2d 391 (Tex.Cr.App.1985) ];
Second, upon such an affirmative finding being made, “the trial court shall enter the finding in the judgment of the court;”
Third, “[u]pon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the trial court shall enter that finding in its judgment.”
Article 42.12, § 3g(aX2), supra.1
Obviously the Legislature deemed it significant that, if true, there be a particularized finding that the deadly weapon is a firearm. In § 3g(b), for one instance, when a defendant used or exhibited a firearm during commission of a felony offense of the second degree or higher and is granted probation upon recommendation of the jury, the trial court is authorized to impose a period of “shock confinement” for not less than 60 nor more than 120 days. There are probably other instances where a recording the historic fact of using or exhibiting a firearm, rather than some other type of deadly weapon, has discrete consequences. But to identify them is not necessary to make the point that when a firearm is used or exhibited the Legislature mandated that the second finding be made and entered in the judgment.
The majority concludes that “Murder, to-wit Handgun” is not a proper finding under § 3g(a)(2). Majority Opinion at 875. Thus to enter it in the judgment constitutes a clerical error so that the judge of the trial court, having no discretion in the matter, shall correct that clerical error by composing a proper finding and entering it in the judgment nunc pro tunc. Id., at 876.
It seems clear enough to me, however, that the jury did not in terms make an affirmative factual finding that applicant “used or exhibited a deadly weapon.” Rather, it found him “guilty as charged in the indictment.” Judicial reasoning is required to convert the jury’s verdict into an affirmative finding. Only because the indictment alleged that applicant caused death of victim “by shooting him with a handgun,” and this Court has held that a “handgun” is a deadly weapon per se, may it be said, as was done in Polk v. State, supra, that such is “an affirmative finding [of a deadly weapon] as a matter of law.” Id., at 394. Thus, the judge of the trial court has to make that legal determination before entering an affirmative finding in the judgment of the trial court.
Furthermore, in this instance the judge of the trial court must draft and enter in the judgment a correct affirmative finding in legal terms that meet requirements of law — -as the majority opinion itself demon*878strates in this very cause. Failure to prepare a legally correct affirmative finding is hardly an error of clerical nature.
Finally, the statute requires a determination as to whether a deadly weapon used or exhibited by a defendant is a firearm. That determination requires application of the law to the facts. Where the charging instrument does not allege accused caused death by “shooting with a firearm,” the verdict cannot be read to constitute an affirmative finding that defendant used or exhibited a firearm. Thus, in this cause there is no affirmative finding that the deadly weapon is a firearm, and under Polk the trial court was not authorized to make that finding and enter it in the judgment.
Therefore, the finding now approved by this Court does not comport with § 3g(a)(2).2
I respectfully dissent.
. All emphasis is mine throughout unless otherwise noted. Furthermore, my cites are to the statutes now in effect.
. This particular provision, especially when coupled with operation of Article 41.18, § 8(b), is the source of much difficulty in complying with it in courts below and in executing it at the administrative level. This cause is but illustrative of inordinate problems we confront weekly on that account in a host of habeas corpus proceedings seeking relief from effects of a flawed affirmative finding. There must be a better way to address a manifestly important matter of public policy.