Flenteroy v. State

OPINION

JOHN F. ONION, JR., Justice (Retired).

This appeal presents an unusual procedural question. After a jury has rejected an affirmative finding of the use of a specific deadly weapon during the commission of the offense as only alleged in the indictment, may a deadly weapon issue be resubmitted at the penalty stage of the trial for the jury to name and specify the instrument used and determine if it was a deadly weapon? The answer, under the circumstances of the instant case, is “no.” We will delete the affirmative finding of a deadly weapon from the judgment and affirm the judgment of…