IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. PD-1645-06

DOMINIQUE LEKIE BLOUNT, Appellant

v.

THE STATE OF TEXAS

On Discretionary Review of Case 14-04-00946-CR of the

Fourteenth Court of Appeals,

Harris County

WOMACK, J., delivered the opinion of the Court, in which KELLER, P.J., and

PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

MEYERS, J., dissented.

The question in this case is whether the appellant was given adequate notice that there

would be an issue of his use or exhibition of a deadly weapon in the commission of the offense

of burglary of a habitation in which he committed or attempted to commit aggravated assault.
(Blount - 2)

See Ex parte Patterson, 740 S.W.2d 766 (Tex. Cr. App. 1987). 1

 An opinion by Judge Clinton (id., at 767) announced the order granting relief (see id., at 778), and it was

2

treated by annotators (and to some extent by other members of the Court) as being the opinion of the Court, but in

fact it was not joined by any other member of the Court. Judge Miller filed an opinion for a plurality of three judges,

but it was called a “concurring” opinion. See ibid. The Court announced that Judge Teague “concurs in result.” Ibid.

Judge Campbell was unofficially reported to have “concurred in result.” Id., at 766. Two members of the Court

dissented, and one did not participate. Id., at 778.

Ex parte Beck, 769 S.W.2d 525, 528 (Tex. Cr. App. 1989). 3

This court considered the issue of notice twenty years ago in Ex parte Patterson when it

granted habeas corpus relief to a prisoner who had been convicted of murder and whose

eligibility for parole was affected by the inclusion in the convicting court’s judgment of an

affirmative finding that he used a deadly weapon. The basis for relief was not clear since the 1

Court was fragmented and the support for the opinions was not clearly described.2

The lack of clarity was made moot within two years when the Court said in another

murder case, “Language in Ex parte Patterson is overruled to the extent of conflict with [today’s]

holding.” That holding was cast in these terms: 3

The State argues that it is “totally illogical for the Applicant to contend

that an indictment charging her with causing the death of an individual by shooting him with a gun did not notify her that the gun was an object that ‘in the

manner of its use or intended use is capable of causing death or serious bodily

injury.’ Texas Penal Code, § 1.07(a)(11)(B) ....”

Section 1.07(a)(11)(B), supra, provides:

“Deadly weapon” means:

* * * * * *

(B) anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.

We agree with the State. It is apparent that any allegation which avers a

death was caused by a named weapon or instrument necessarily includes an

allegation that the named weapon or instrument was, “in the manner of its use ...

capable of causing” (since it did cause) death. Thus, applicant had sufficient

notice that the weapon alleged is a deadly weapon and that her use of a deadly

weapon would be an issue in the State’s murder prosecution. Thus, the concerns
(Blount - 3)

Id., at 526–27 (emphases in original). 4

Gilbert v. State, 769 S.W.2d 535, 536–37 (Tex. Cr. App. 1989). 5

 PENAL CODE § 22.02(a)(1). 6

Id., § 22.02(a)(2). 7

Id., § 1.07(a)(17)(B). 8

and individual constitutional guarantees elucidated in Ex parte Patterson are

satisfied.4

Later in the same year, this court extended its reasoning to a case in which the indictment

alleged that the defendant caused serious bodily injury less than death. The Court said:

Applying the rationale from Beck, we hold that appellant had sufficient notice that

use of a deadly weapon would be a fact issue at his trial. Under § 1.07(a)(11)(B),

a deadly weapon is “anything that in the manner of its use or intended use is

capable of causing ... serious bodily injury.” As noted earlier, the indictment

alleged that appellant “caused serious bodily injury” to complainant by placing

him in hot liquid. This language in the indictment necessarily includes an allegation that the hot liquid in this case, water, was a deadly weapon because “in the

manner of its use [the water was capable of] caus[ing] serious bodily injury.” 

Thus, appellant had sufficient notice that the nature of the weapon alleged in the

indictment would be an issue at trial and that the State may seek an affirmative

finding on the use of the weapon.5

Likewise, the Beck rationale extends to the case before us in which the indictment alleged

a burglary of a habitation in which, after entering, the appellant “committed and attempted to

commit a felony of aggravated assault.”

Aggravated assault may be committed in only two ways: (1) by “caus[ing] serious bodily

injury” or (2) by “us[ing] or exhibit[ing] a deadly weapon during the commission of the 6

assault.” Each of these involves the use of a deadly weapon. The first way necessarily implies 7

the use of a deadly weapon, which is “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury.” The second way specifies the use of a deadly 8
(Blount - 4)

Blount v. State, 201 S.W.3d 170, 173 (Tex. App. — Houston [14th Dist.] 2006). 9

weapon. Therefore an allegation that a defendant committed aggravated assault gives him notice

that the deadly nature of the weapon alleged in the indictment would be an issue at trial and that

the State may seek an affirmative finding on the use of the weapon.

The Court of Appeals erred in holding that “the appellant was given no written notice of

any kind[,] and no reference to a deadly weapon was made in the indictment.”9

The judgment of the Court of Appeals is reversed, and the judgment of the District Court

is affirmed.

Delivered July 2, 2008.

Publish.