Does the State have to allege a deadly weapon in the indictment presented to the Grand Jury before they are able to present evidence to the jury and ask them to make an affirmative finding of a deadly weapon?

No. The State only need provide notice to the defense in advance. If you didn't put something in the indictment, then just file a Notice of Intent to Seek DW Finding before trial.

That too was my understanding. However, the Judge seems to agree with the Defense attorney (without any case law). Any suggestions for cases? I provided the Court with Polk v. State, 693 S.W.2d 391, but was told cases from 1985 won't work.

See Brooks v. State, 957 SW2d 30 (Tex. Crim. App. 1997) and Ex parte Minott, 972 SW2d 760 (Tex. Crim. App. 1998).

Don't you get irritated by judges who think from the bench?

Thank you so much! I truly appreciate your help.

And 1985 was a perfectly good year for case law. Got my law license that year.

Check the "DWI Resources" link/tab in the upper right hand corner of tdcaa.com. Go to Richard Alpert's DWI Case Law Update (searchable), and search for "Deadly Weapon". I haven't read all of the cases, but there are at least 5 cases about Deadly Weapon findings, instructions in the jury charge, etc.. Most of the cases are from the 21st century.

Mr. Alpert's DWI Case Law Update (especially on this site in the "searchable" format) is a great resource.

I've heard of this "Alpert" guy. Or, Mr. DWI, as his fans call him.

I'm still waiting for his return to network television; when the upcoming season of "Lost" returns...

Your indictment probably has adequate notice already in it. Ex parte McKithan, 838 S.W.2d 560 (Tex.Crim.App. 1992) and the cases cited in it.

While the finding of a deadly weapon must be express and not inferred, the notice must only be adequate to give the defendant a heads up.