Terrance L. Hayes v. The State of Texas--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

No. 10-92-209-CR

TERRANCE L. HAYES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Falls County, Texas

Trial Court # 6311

O P I N I O N

Hayes was convicted of the offense of murder and a jury assessed punishment at ninety-nine years in prison and a $10,000 fine. The jury also found that Hayes used or exhibited a deadly weapon during the commission of the offense.

In a single point of error Hayes complains that, because the State did not give proper notice of its intent to seek an affirmative finding on the use of a deadly weapon, the court erred in submitting a special issue to the jury regarding the use of a deadly weapon and in entering an affirmative finding in the judgment. Because we find that Hayes had sufficient notice from the indictment that the State would seek such a finding, we will affirm the judgment.

The indictment contained two paragraphs, each of which essentially alleged that Hayes knowingly caused the death of Arminda Casas by striking her in the head with a wooden board. In addition, six days before trial the State filed a Notice of Intent to Seek Affirmative Finding of Use or Exhibition of a Deadly Weapon. Hayes complains that six days was insufficient notice. We do not reach that point, however, because we find that the indictment provided sufficient notice.

In Long v. State, 820 S.W.2d 888, 892 (Tex.App. Houston [1st Dist.] 1991, pet. ref'd), a similar complaint was made about the affirmative deadly weapon finding. In Long the indictment essentially alleged that the defendant caused the death of the victim by cutting and stabbing her with a knife. Neither in Long nor in this case did the indictment allege that the instrument used to cause the death was a "deadly weapon" or allege the use of a deadly weapon per se, such as a pistol or firearm. The Houston Court of Appeals held, "Any allegation that avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon was in the manner of its use capable of causing death. Ex parte Beck, 769 S.W.2d 525, 527 (Tex.Crim.App. 1989)."

Here, the indictment alleged that the instrument used to cause the death was a "wooden board" and further alleged that the injury was inflicted on the victim's head. We find this to be sufficient notice that an affirmative finding would be sought. See Beck, 769 S.W.2d at 527-28. Since we find that the indictment was sufficient notice, we do not reach Hayes' complaint concerning the notice that was given only six days before trial. We affirm the judgment.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 3, 1993

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