Challenging deadly weapon findings on direct appeal and in 11.07 writs in Texas

 Posted on March 25, 2022 in Uncategorized

Inmates convicted of non-aggravated crimes who have a deadly weapon finding on their judgments may have a unique opportunity to challenge their sentence. Because of the outsized impact of the deadly weapon finding on an inmate prison’s time, I wanted to set out how deadly weapon findings work in Texas and describe the typical ways in which they are challenged post-conviction.

What is an affirmative deadly weapon finding?

The Court of Criminal Appeals’ definition is: “the trier of fact’s express determination that a deadly weapon or firearm was used or exhibited during the commission of the offense.” Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985).

The Court is saying that an “affirmative finding” is an “express determination.”

Not too helpful.

It’s better to just think about it in practical terms. If the State alleges in the indictment the magic phrase “used or exhibited a deadly weapon” and the jury finds you guilty as charged, then, practically speaking, the jury has made a deadly weapon finding.

But since this is a legal issue there’s always a few wrinkles. So here’s how the Court in Polk explains how a deadly weapon finding can be made.

The Court provides 3 ways to get an affirmative deadly weapon finding:

1. A general verdict of guilt by a jury or judge “on the indictment” where the indictment specifically alleges a deadly weapon.
2. Even if a deadly weapon is not alleged, it can be affirmatively found as a matter of law, like if someone is convicted of murder by shooting another person, then as a matter of law there’s a deadly weapon finding because a gun is deadly weapon per se.
3. A deadly weapon can also be found during the punishment phase as a special issue submitted to the trier of fact, similar to an enhancement allegation.

An affirmatively deadly weapon usually can’t be implied

The Court of Criminal Appeals has stated clearly that a judge can’t assume the jury made a deadly weapon finding based on its assessment of the evidence. The deadly weapon has to be pled in the indictment and authorized by the jury charge. Duran v. State, 492 S.W.3d 741, 746 (Tex. Crim. App. 2016).

The appellate courts have complicated matters by digging into questions like can you find a deadly weapon on a conviction for a lesser-included offense . . . but generally the 3-part list in Polk is the best way to determine whether a deadly finding is proper.

Ways to challenge a deadly weapon finding on direct appeal.

There are a few ways.

As the CCA notes, a trial judge “can’t resort to deductive reasoning” to conclude that a jury made a deadly weapon finding. The indictment must explicitly say “deadly weapon” or alleged facts that include a firearm (deadly weapon per se). If you have a deadly weapon finding that wasn’t affirmatively alleged in the indictment or based on an essential element of the offense, then you may be able to challenge the finding on appeal.

The other way to challenge the finding to assert that the evidence is legally insufficient to support it. You do this by viewing the entire record to see if a rational juror could have found the deadly weapon beyond a reasonable doubt. Notice that you do not have to challenge the entire conviction to be successful at proving the deadly weapon finding was not supported by the evidence.

A legal sufficiency argument is most effective in vehicle-as-a-deadly-weapon cases. That is because in order for a vehicle to be a deadly weapon, it has to be used in a way that directly placed a person other than the defendant in danger. So, you can see how in evading arrest and DWI cases there might be a strong argument that a deadly weapon was not justified by the facts and should be deleted.

Ways to challenge a deadly weapon finding in an 11.07 writ application.

If you are trying to fight a deadly weapon finding in an 11.07 writ application, you typically will need to allege ineffective assistance of counsel. This is because affirmative finding and judgment issues are themselves not cognizable in a writ (you can’t raise record-based issues and ).

But if your trial lawyer failed to properly argue the deadly weapon issue, then you can plead that he or she was ineffective for not doing so. You have the burden of proving prejudice — i.e. that your lawyer’s failure to address teh deadly weapon issue prejudiced you. But because deadly weapon findings have a direct impact on sentences, prejudice can be easier to prove if a mistake was in fact made.

As always, every case is unique. There can be many complicating factors with deadly weapon findings, including the procedural posture of the case, the nature of the plea, etc. Make sure to consult with an attorney on these issues.