Fifth Court of Appeals - Texas Courts
Case Number: 05-17-00421-CR
Judge: David L. Bridges
Court: Fifth Court of Appeals - Texas Courts
Plaintiff's Attorney: Faith Johnson
Defendant's Attorney: Bruce Anton
Description: After episodes of marital discord, appellant’s wife (Wife) took their children and moved in
with complainant, her cousin. On October 25, 2016, appellant went to complainant’s apartment
to see the children and try to get Wife back. Appellant pushed his way inside, and Wife noticed a
gun in his hand. When complainant threatened to call 9-1-1, appellant shot complainant in the
shoulder and twice in the stomach.
The State’s indictment alleged that appellant:
did unlawfully, intentionally and knowingly enter a habitation without the effective consent of JOSHUA WALTON, the owner thereof, with the intent to commit a felony other than theft, namely, AGGRAVATED ASSAULT, And further, said Defendant did unlawfully, intentionally and knowingly enter a habitation without the effective consent of JOSHUA WALTON, the owner thereof, and did then and there commit and attempt to commit a felony other than theft, namely, AGGRAVATED ASSAULT, by intentionally, knowingly and recklessly causing bodily injury to JOSHUA WALTON, hereinafter called complainant, by SHOOTING SAID COMPLAINANT WITH A FIREARM, and said defendant did use and exhibit a deadly weapon, to-wit: a FIREARM, during the commission of the assault[.] During a pretrial hearing, appellant rejected a twenty-year plea deal that included a deadly weapon
finding. When he rejected the deal, the trial court reminded him he would “have to serve half of
any sentence that you do receive” before he would be eligible for probation. The case then
proceeded to trial. When the State read the indictment, including the deadly weapon allegation,
appellant pleaded not guilty to the jury.
After the State presented several witnesses, appellant freely and voluntarily changed his
plea to guilty. The punishment phase of trial commenced before the jury. Appellant testified and
agreed he was taking responsibility for “the charges that have been filed against [him],” and he
committed the actions the State alleged. He admitted he shot complainant.
The jury charge stated appellant “stands charged by indictment with the offense of Burglary
of a Habitation with intent to commit other felony” and instructed the jury to find appellant “guilty
of the offense of Burglary of a Habitation with intent to commit other felony as charged in the
indictment. . . .” The charge further instructed the jury:
Under the law of this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. Attached were two verdict forms: one for a term of imprisonment and a second for community
supervision. There were no objections to the jury charge. The jury returned the verdict finding
“defendant guilty of the offense of Burglary of a Habitation with intent to commit other felony as
charged in the indictment” and assessed forty years’ imprisonment.
The judgment indicates appellant (1) pleaded guilty to “burglary habitation intent/felony,”
(2) the jury found him guilty, and (3) the jury sentenced him to “40 years institutional division,
TDCJ.” The parties disagree on the “Findings on Deadly Weapon,” which states “N/A.” Appellant
argues the judgment should be modified to delete “N/A” with “NO” deadly weapon finding. The
State contends the judgment should be modified to delete “N/A” with “YES, A FIREARM.” Discussion A court has the power to modify a judgment to make the record speak the truth when it has
the necessary information to do so. TEX. R. APP. P. 43.2(b). However, when asked to modify a
judgment to include a deadly weapon finding, we proceed cautiously given the ramifications of
such a finding. The entry of a deadly weapon finding in a judgment affects a defendant’s eligibility
for parole. See Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App. 2016). Section
508.145(d)(2) of the government code states an inmate serving a sentence for an offense which
includes an affirmative deadly weapon finding, “is not eligible for release on parole until the
inmate’s actual calendar time served, without consideration of good conduct time, equals one-half
of the sentence or 30 calendar years, whichever is less.” See TEX. GOV’T CODE ANN.
§ 508.145(d)(1)–(2) (West Supp. 2017). Because of these repercussions, it is well-settled that “for
a trial court to enter a deadly-weapon finding in the judgment, the trier of fact must first make an
‘affirmative finding’ to that effect.” Duran, 492 S.W.3d at 746; see also Brown v. State, No. 05
15-00857-CR, 2016 WL 7473899, at *2 (Tex. App.—Dallas Dec. 29, 2016, no pet.) (mem. op.,
not designated for publication).
A jury may make the required affirmative finding when it finds the defendant used or
exhibited a deadly weapon during the commission of the felony offense. Brown, 2016 WL
7473899, at *2. When the jury makes this affirmative finding, the trial court must include the
finding in the judgment entered. Id. However, courts do not look to the facts of the case to “imply”
an affirmative deadly weapon finding but look to the charging instrument, the jury charge, and the
jury verdict to evaluate the propriety of an entry of a deadly weapon finding in the judgment.
Duran, 492 S.W.3d at 746.
In Polk v. State, the court of criminal appeals listed three formal ways a jury makes this
affirmative finding: (1) the indictment specifically alleged a “deadly weapon” was used (using the
words “deadly weapon”) and the defendant was found guilty “as charged in the indictment”; (2)
the indictment did not use the words “deadly weapon” but alleged use of a deadly weapon per se
(such as a firearm); or (3) the jury made an express finding of fact of use of a deadly weapon in
response to submission of a special issue during the punishment stage of trial. 693 S.W.2d 391,
396 (Tex. Crim. App. 1985). Recently, the Duran court reaffirmed these requirements. Duran,
492 S.W.3d at 743; see also Guthrie-Nail v. State, 506 S.W.3d 1, 4 (Tex. Crim. App. 2015)
(acknowledging “less explicit language—such as words, in a verdict or judgment, referring to
portions of the charging instrument that includes a deadly weapon allegation—can also constitute
an express finding” of a deadly weapon).
Here, the charging instrument included a deadly weapon allegation. Appellant pleaded
guilty to this indictment. Although the indictment was not read again prior to appellant’s guilty
plea, there is no indication in the record that the State abandoned the deadly weapon allegation as
previously read to the jury. The jury was instructed to find appellant guilty “as charged in the
indictment.” There was no objection to the plea or the submission. This scenario falls within the
first Polk category in which the indictment alleges a deadly weapon was used, and the jury finds
appellant guilty “as charged in the indictment.” Polk, 693 S.W.2d at 396; Brown, 2016 WL
7473899, at *5. As such, the record indicates the jury made an affirmative finding, based on its
finding of guilt, that appellant used or exhibited a deadly weapon.
This Court has the power to modify a judgment to make the record speak the truth when
we have the necessary information to do so. TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d
526, 529 (Tex. App.—Dallas 1991, pet. ref’d); Thornton v. State, No. 05-16-00565-CR, 2017 WL
1908629, at *8 (Tex. App.—Dallas May 9, 2017, pet. ref’d) (reforming judgment to include deadly
weapon finding) (mem. op., not designated for publication). Accordingly, we modify the trial
court’s judgment by deleting “N/A” and replacing with “YES, A FIREARM” under “Findings on
Outcome: As modified, we affirm the trial court’s judgment.