We have a deadly conduct indictment whereby we allege that Defendant intentionally or knowingly discharged a firearm at or in the direction of individuals unknown to the Grand Jury.

We did not include any other specific language regarding the use of a deadly weapon. The case law seems to suggest that we have made a sufficent allegation of a deadly weapon. Do we need to file a separate notice that we intend to seek a deadly weapon, or are we covered by the indictment?

Since you have alleged a "per-se" deadly weapon (firearm) under PC 1.07(a)(17)(A), it would seem you have given sufficient notice.

Even more so since the only way to get to FELONY deadly conduct involves the use of a firearm.

To be safe, you should always have a separate DW paragraph in the indictment giving defendant notice you intend to seek an affirmative finding. Since you have already indicted, you can give the notice by simply filing a pleading with the court and serving a copy on defendant and his lawyer.

Normally I try to include everything in the indictment, but this one slipped by. I then planned to file a Notice of Intent to Seek Deadly Weapon finding but somehow that slipped by too.

The trial is set for next Monday. I hope I don't let that slip by!

There is caselaw that suggests that it might not be too late to give the notice now, as long as you can show the defense isn't surprised (which should be easy since it is referenced in your indictment).

Try Nolasco v. State, 970 S.W.2d 194 (Tex. App 5th Dist 1998)to start your research. That case says that notice can even be given the day of trial is there is no surprise. “The notice of the State’s special plea, given prior to the start of trial in this case, provided Nolasco with timely written notice that the use of a deadly weapon would be a fact issue in the case.”