Narron v. State

*643OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was charged by indictment with the offense of possession of a prohibited weapon, alleged to have been committed on or about June 2, 1989. On April 5, 1990 in the 29th Judicial District Court of Palo Pinto County, Texas, appellant was found guilty by a jury. The trial court then assessed punishment at twenty years confinement in the Texas Department of Corrections1 and a fine of $2,000.00, and entered an affirmative finding of deadly weapon use. The Eleventh Court of Appeals held that the above-described indictment allegation provided sufficient notice and affirmed the conviction and sentence. Narron v. State, No. 11-90-162-CR (Tex. App. — Eastland, delivered May 23, 1991). We granted appellant’s sole ground for review which complains about the propriety of entry of that affirmative finding.2

I. GROUND FOR REVIEW

Specifically appellant’s ground for review states:

“The court of appeals erred in holding that the trial court properly included in the [jjudgment, an affirmative finding that the defendant “used or exhibited” a deadly weapon, and such holding is in direct conflict with Grettenberg vs. State, 790 S.W.2d 613, (Tex.Crim.App. 1990), and Luken vs. State, 780 S.W.2d 264 (Tex.Crim.App.1989).”

II. APPELLANT’S CLAIM

The record reveals that the indictment in the instant cause did not include any specific notice of intent to seek a deadly weapon finding. It merely alleged that appellant “possess[ed] a prohibited weapon, to-wit: a short barrel firearm, to-wit: a Harrington and Richardson Inc. 20 gauge shotgun with a barrel length of less than 16 inches[.]” Appellant appears to make dual claims to this court: 1) that the indictment, without including any language notifying him of the State’s intention to seek a deadly weapon finding, was inadequate to provide the requisite notice of such intent; and 2) that it is improper to make an affirmative finding of use or exhibition of a deadly weapon when possession of the weapon is the gravamen of the felony offense. We will address both claims.

III.DEADLY WEAPON FINDING NOTICE

It is very well-settled that a defendant is entitled to notice in some form that the State intends to pursue the entry of an affirmative finding of the use or exhibition of a deadly weapon. Gretten-berg v. State, 790 S.W.2d 613, 614 (Tex.Cr. App.1990). Notice can be sufficiently provided by the language in an indictment that specifically mentions a particular object or substance and its use with respect to death or serious bodily injury. See Johnson v. State, 815 S.W.2d 707, 709 (Tex.Cr.App. 1991) (death caused by striking with feet and hands); Ex parte Brown, 773 S.W.2d 332, 333 (Tex.Cr.App.1989) (stabbing with a knife with the specific intent to commit the offense of murder); Gilbert v. State, 769 S.W.2d 535, 536 (Tex.Cr.App.1989) (causing serious bodily injury by placing the complainant into hot liquid).

This Court has held that a shotgun is a deadly weapon per se for purposes of the trial court entering an affirmative finding of deadly weapon use/exhibition. Ex parte Franklin, 757 S.W.2d 778, 783 (Tex.Cr.App.1988). Thus appellant’s indictment allegation involving a shotgun, specifically “a Harrington and Richardson Inc. 20 gauge shotgunf,]” did allege a deadly weapon per se.

Because the indictment alleged the felony offense of possession of a prohibited weapon, to-wit: a short barrel firearm/shotgun, appellant was put on notice of the State’s intent to seek a deadly weapon affirmative finding.

*644IV. APPLICABILITY OF THE DEADLY WEAPON FINDING

This Court has interpreted “use” of a deadly weapon in the context of Article 42.12, § 3g(a)(2), V.A.C.C.P. to include simple possession if such possession facilitates the associated felony. Patterson v. State, 769 S.W.2d 938, 941 (Tex.Cr.App.1989). Therefore, in order to “use” a deadly weapon for affirmative finding purposes, the weapon must be utilized to achieve an intended result, namely, the commission of a felony offense separate and distinct from “mere” possession. See Article 42.12, § 3g(a)(2) and Patterson, supra.

In Patterson, we determined that the weapon was “used” to protect drugs. In the present case, the weapon was not “used” in furtherance of any collateral felony. Because there was no associated felony facilitated by appellant’s possession of the short barrel firearm, our holding this day in Ex parte Petty, 833 S.W.2d 145 (Tex.Cr.App.1992), dictates that the affirmative finding of the use of a deadly weapon was error.

V. CONCLUSION

Because the indictment alleged that appellant possessed a short barrel firearm/shotgun, we conclude that appellant was provided sufficient notice that the State intended to seek a deadly weapon affirmative finding. But because there was no associated felony facilitated by appellant’s possession of the short barrel firearm, we sustain appellant’s ground for review and delete the affirmative finding from the judgment in the instant cause. The judgment, as modified, is hereby affirmed. Copies of this opinion will be sent to the Texas Department of Criminal Justice, Institutional Division and Board of Pardons Division.

. Now known as the Texas Department of Criminal Justice — Institutional Division.

. In the same proceeding appellant was also tried, convicted, and sentenced for possession of methamphetamine. Because appellant’s complaint involves only the weapon possession case, we shall limit our discussion to such.