Price, J., filed a dissenting opinion.

Stare decisis strongly urges judges not to reconsider precedent. Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996). However, overruling precedent in Texas is acceptable under certain circumstances. Some factors that support overruling precedent are: 1) when the original rule is flawed from the outset; 2) when older precedent conflicts with a newer decision that is found to be more soundly reasoned; and 3) when the rule consistently creates unjust results or places unnecessary burdens upon the system. Hammock v. State, 46 S.W.3d 889, 892-93 (Tex. Crim. App. 2001).

In Davis v. State, a majority of this Court, including two judges currently sitting on this Court, held that a trial court was not authorized to enter a deadly weapon affirmative finding because there was no deadly weapon special issue included in either the guilt or punishment jury charge, and the voluntary manslaughter verdict mentioned neither a deadly weapon nor the indictment. 897 S.W.2d 791, 793 (Tex. Crim. App. 1995). Yet, today, a majority of this Court now finds that the reasoning in Davis was flawed.

The majority in this case, justifies overruling Davis by comparing it to Travelstead. In Travelstead, the defendant was convicted of murder under the law of parties, and an affirmative finding of the use or exhibition of a deadly weapon was included in the judgment. Travelstead v. State, 693 S.W.2d 400, 401 (Tex. Crim. App. 1985). Because the defendant was not the triggerman, he argued to this Court that it was inappropriate for the trial court to make an affirmative finding in his case. This Court agreed and stated:

We find that the phrase “the defendant used or exhibited a deadly weapon” implies that the defendant, himself, use or exhibit a deadly weapon during the commission of a felony or flight therefrom. When a defendant is a party . . . to the use or exhibition of a deadly weapon, there must be a specific finding by the trier of facts that the defendant himself used or exhibited the deadly weapon.

Id. at 402.

Therefore, as the majority reasons, courts were to determine whether a defendant personally used the deadly weapon alleged in the indictment by looking to the application paragraph of the jury charge to decide whether it included a parties charge. The application paragraph was crucial to that determination.

In its comparison of the two cases, the majority states that the courts should look to the application paragraph to overturn a deadly weapon finding if that paragraph includes a parties charge, but courts should not look to that same application paragraph to uphold a deadly weapon finding. If that were the law today, the majority’s reasoning might be persuasive.

In 1991, the Legislature effectively overruled Travelstead when it amended Article 42.12 of the Texas Code of Criminal Procedure to provide for an affirmative finding of a deadly weapon if the defendant used or exhibited a deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. art. 42.12 §3g(a)(2). Therefore, today, the application paragraph is not an appropriate source for the trial court to consult in determining whether the jury made an express deadly weapon finding pertinent to the particular defendant in its verdict.

In its next reason to overrule Davis, the majority states that this Court’s holding in Davis did not serve Polk’s underlying purpose of ensuring that the jury make an express deadly weapon finding. Instead, it exalted form over substance to no discernible purpose.

The purpose is obvious. This Court defined “affirmative finding” to mean “the trier of fact’s express determination that a deadly weapon or firearm was actually used or exhibited during the commission of the offense.” Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985). This Court specifically noted that an implied finding is not an express finding as is required by statute, and that the Legislature’s requirement for an express finding was meant to save all of us from sinking ever deeper into the quagmire of whether differing indictment/verdict/fact situations amounted to implied findings or not. Id. at 396.

In Travelstead, the majority stated that when the issue of punishment is before the jury, the trial court should submit a special issue to the jury regarding an affirmative finding of a deadly weapon. Much confusion would be eliminated if this procedure was followed. Travelstead v. State, 693 S.W.2d 400, 402 (Tex. Crim. App. 1985).

Since Polk, it has been very well-settled that in a jury trial, a trial court is authorized to enter a deadly weapon affirmative finding in three situations: where the jury has 1) found guilt as alleged in the indictment and the deadly weapon has been specifically plead as such using deadly weapon nomenclature in the indictment; 2) found guilt as alleged in the indictment but, though not specifically plead as a deadly weapon, the weapon plead is per se a deadly weapon; or 3) affirmatively answered a special issue on deadly weapon use. Polk, 693 S.W.2d at 396.

The majority believes that this Court did not take into account lesser-included offenses when it set out the three modes of addressing a deadly weapon finding. That may be true but, when looking at these three modes, it is obvious that the third mode, affirmatively answering a special issue, is the proper avenue to take when dealing with a lesser-included offense.

The majority also states that courts should not be required to consult two different documents (i.e., the verdict form in the jury charge and the indictment) if one document will suffice. What the majority is overlooking is that its holding today will only make that situation worse. The majority would have the appellate courts review every indictment, every verdict form and every application paragraph in the jury charges to locate an affirmative finding that a deadly weapon was used or exhibited during the offense of conviction.

The majority believes that the moral of Polk is that courts should not have to wade through trial evidence to divine whether a jury did or did not find, beyond a reasonable doubt, that a defendant used a deadly weapon in the commission of the offense. Yet, the majority would have the courts look through numerous documents to locate the deadly weapon finding. Would it not be easier to only have to consult the verdict form and sometimes the indictment when the verdict relates back? Would it not be more beneficial to the system if the courts knew exactly where to go to find this information?

The interest in stare decisis is even more compelling when the rule of law involves a judicial interpretation of a legislative enactment on which parties rely for guidance. Busby v. State, 990 S.W.2d 263, 267 (Tex. Crim. App. 1999). “When the legislature meets, after a particular statute has been judicially construed without changing the statute, we presume the legislature intended the same construction should continue to be applied to that statute. Ibid. (quoting Marin v. State, 891 S.W.2d 267, 271-72 (Tex. Crim. App. 1994). The Legislature has met many times since Davis and Travelstead were decided and Travelstead was the only case overruled.

Upon close analysis, the majority’s attempt to justify its holding is lacking both logic and skill. The procedure in Davis is simple and beneficial to the organization of the criminal justice system. Only one sentence needs to be added to the verdict form. The deadly weapon finding will be easy to find and there will be no confusion on whether there was an express finding. The trial court should be responsible for having a special issue in the jury charge relating to a deadly weapon finding.

Our law requires that “the judge . . . shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case . . ..” Tex. Code Crim. Proc. art. 36.14. In Posey v. State, Judge Womack in his concurring opinion stated:

In our system the parties are adversaries; the judge is not. The parties may make strategic decisions whether to present evidence, and the evidence will determine what law must be applied. To that extent the adversaries’ decisions affect the court’s charge. But the charge is the judge’s. It is not under the control of the adversaries. When the evidence is closed, the judge’s duty to charge on the applicable law is no longer subject to the strategic decisions of the parties.

966 S.W.2d 57, 69 (Tex. Crim. App. 1998).

Without any basis for doing so, I believe that the majority of this Court is departing from the doctrine of stare decisis in its holding. I would affirm the judgment of the Court of Appeals and strike the affirmative weapon finding from the judgment. I respectfully dissent.

Delivered: May 21, 2003

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