dissenting.
In her fourth ground of error, appellant asserts that she had no notice that the State would seek an affirmative finding that a deadly weapon was used during the commission of the offense. Absent from the indictment was any allegation that the appellant used a “deadly weapon” or a “firearm.”
Although the finding of a “deadly weapon” does not enlarge or alter the applicable penalty range (unlike an enhancement paragraph in an indictment), it nevertheless has a profound effect on a defendant by extending the confinement that a defendant must serve before becoming eligible for discretionary parole. Tex.Code Crim.P. Ann. art. 42.12, sec. 15(b) (Vernon 1979). In theory, his punishment is not changed but as seen from his perspective, it is drastically more severe.
My inability to join the majority stems basically from consideration of the command of art. 1, sec. 10 of the Texas Constitution, that a defendant has the right to know “the nature and cause of the accusation against him.” Probably the most significant objective of this constitutional right is to furnish notice to the accused of the exact charge against him and, by implication, of what punishment might be assessed if he is found guilty, thus permitting him to prepare a specific defense or mitigation of punishment.
Our Code of Criminal Procedure, art. 21.-03 (Vernon 1966), further specifies, “[e]ver-ything should be stated in [a charging instrument] which is necessary to be proved.” Basic notions of fairness and adequate notice, therefore, constrain me to urge that when the State intends to invoke provisions of Tex.Code Crim.P.Ann. art. 42.12, sec. 3f(a)(2), (Vernon Supp.1985)1, it must include in its charging instrument— preferably a simple averment in a separate paragraph — that which it expects to prove; that is, that the accused used or exhibited a *266deadly weapon during the commission of the alleged offense or during the immediate flight therefrom.
When denial of probation by a trial court and deprivation of liberty by extended confinement in a penitentiary hinge on that very question, due process and due course of law require that the trier of fact at any stage of a criminal trial not be authorized to make an adverse finding against an accused unless and until the issue has been tendered by the pleading of the State. See Polk v. State, 693 S.W.2d 391, 397 (Tex.Crim.App.1985) (Clinton, J., concurring). Issues are tendered only by pleadings, the State thereby giving notice to the accused through its charging instrument of what is being claimed.
Because I believe that the failure of the State to give such notice by its pleadings is an error of fundamental magnitude, not requiring either a showing of harm or an objection, I respectfully dissent.
I would sustain the appellant’s fourth ground of error and remand for a new trial.
. Sec. 3f. (a) The provisions of Sections 3 and 3c of this Article do not apply:
... (2) to a defendant when it is shown that the defendant used or exhibited a deadly weapon as defined in section 1.07(a)(ll), Penal Code, during the commission of a felony offense or during immediate flight therefrom. Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of tut offense or during immediate flight therefrom, the trial court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the court shall enter that finding in its judgment.