Polk v. State

In Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985), the Court addressed that problem, noting that "the indictment, charge, verdict and judgment" were all relevant in determining if, when, and how a jury makes a deadly weapon finding. Polk, 693 S.W.2d at 393. First, the Court analyzed the term "affirmative finding," and concluded that "these words taken together were intended 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." Id The trial judge could not enter a deadly weapon finding simply because some evidence indicated that the defendant had used a deadly weapon and therefore the jury's general verdict might imply that it had believed that evidence. The indictment alleged that Mr. Polk attempted to cause the death of the complainant by stabbing and cutting the complainant with a knife. Polk, 693 S.W.2d at 393. The application paragraph of the jury charge tracked the language of the indictment but failed to say anything about a deadly weapon. Id. The verdict form, on the other hand, simply stated that the jury found Mr. Polk guilty "as charged in the indictment." Thus, none of the three possible sources of an express deadly weapon finding-the indictment, the jury charge, or the verdict form-contained any deadly weapon language. Because a knife is not a deadly weapon per se and Mr. Polk's jury might have concluded that this particular knife was not, in fact, a deadly weapon, there was no way for the trial judge to determine with any certainty what, exactly, the jury had found regarding Mr. Polk's use of the knife. To assist the bench and bar, in Polk the Court "examined how, when the jury is the trier of fact, an affirmative finding may properly be made." Polk, 693 S.W.2d at 394. First, "the trier of facts' verdict on the indictment may constitute an affirmative finding" when the indictment itself alleges a deadly weapon. Id. Second, sometimes "an affirmative finding will arise as a matter of law"-as in when the instrument used is a per se deadly weapon, such as a pistol or a firearm. Third, the jury may make an affirmative finding through a deadly weapon special issue included in the jury charge. After rephrasing its three major modes of making an affirmative finding, this Court concluded: " we will no longer look to the facts of the case to permit an 'implied' affirmative finding as the court of appeals, relying on prior case law, did in this case." The moral of Polk is that courts should not 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.