Texas Court Deadly Weapon Finding Without Jury's Response
The proposition that the trial court may not make a deadly weapon finding without the jury's affirmative response to a proper special issue on use of a deadly weapon (Polk v. State for (Tex. Crim. App. 1985)
In Polk, the indictment did not allege that the defendant used or exhibited a "deadly weapon."
The indictment in this case alleged that appellant "unlawfully and intentionally caused the death of the Complainant, by striking the Complainant with a deadly weapon, namely an motor vehicle."
Polk specifically allows the trial court to enter a deadly weapon finding when:
(1) the State specifically pleads in the indictment the use or exhibition of a deadly weapon;
(2) the jury finds the defendant guilty as charged in the indictment. Id. at 396.