Travelstead v. State

In Travelstead v. State, 93 S.W.2d 400 (Tex. Crim. App. 1985) the indictment charged the defendant with capital murder of the complainant "by shooting him with a gun" in the course of committing robbery. 693 S.W.2d at 401. The verdict form read: "We the jury, find the defendant 'Guilty of Murder' as charged in the indictment." Id. The Court in Travelstead held that deadly weapon findings must be personal to the particular defendant. "When a defendant is a party, as defined in Sections 7.01 and 7.02 of the Penal Code, 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." Thus, under Travelstead, 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. There were two necessary holdings in Travelstead: (1) that one could look to the application paragraph of the jury charge to determine whether the jury made an affirmative deadly weapon finding; (2) under the statute, deadly weapon findings were personal to the defendant. Flowing from these two holdings is Travelstead's conclusion that sole reliance upon a parties theory of liability in the application paragraph negated any inference that the jury made a deadly weapon finding. 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. The 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. 693 S.W.2d at 402. 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).