Tuesday, February 9, 2010

Deadly Weapon Enhancement for Homicide Cases is a Joke!

Back in December, I wrote about the Texas Court of Criminal Appeals' decision in Crumpton v. State.  See my post HERE.  In Crumpton, the Court held that a "deadly weapon" finding is implied when a defendant is convicted of criminally negligent homicide.  No longer does the jury have to actually return an affirmative finding in order for the State to "enhance" the punishment range.

The infection in our criminal justice system regarding the deadly weapon finding has already begun, as we see the 4th District Court of Appeals (San Antonio) following the CCA's lead.  In McCallum v. State, the judge implied a deadly weapon finding from the jury's verdict convicting the defendant of the LIO of criminally negligent homicide (by striking a victim with his hand).  On appeal, McCallum argued that the jury is the proper body to make the deadly weapon finding, not the judge.  But, relying on Crumpton the Court held that the deadly weapon finding was implicit.

How did we get here?  This is legislating from the bench if I've ever seen it.  Why did the legislature create a punishment range for homicide offenses, if the State can summarily enhance them.  The definition of "deadly weapon" is "anything that in the manner if its use...is capable of causing death."  That means everything.  There have been cases where the ground was a deadly weapon.

So my questions is...If the victim in every homicide is dead (obviously), and a verdict of guilty for any homicide offense (including LIOs) implies the use of a deadly weapon, has enhancement simply become a matter of course in every homicide case?

Why do we even need a legislature when we have judges?