Opinion
No. 09-06-221 CR
July 12, 2007.
Opinion Delivered September 26, 2007. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 90564.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Without a plea bargain, appellant Kathryn Comisky pled guilty to possessing a weapon in a prohibited place. See Tex. Pen. Code Ann. § 46.03 (Vernon Supp. 2006). The trial court found the evidence sufficient to substantiate Comisky's guilt, but deferred further proceedings, placed Comisky on community supervision for ten years, and assessed a $1,000 fine. The State filed a motion to revoke. Comisky pled "true" to violating two conditions of her community supervision. The trial court found that Comisky violated the terms, found Comisky guilty of possessing a weapon in a prohibited place, and assessed punishment at ten years of confinement. Although the trial court did not indicate at the sentencing hearing that it intended to enter an affirmative finding on the use of a deadly weapon, its judgment adjudicating Comisky's guilt included a finding that she used or exhibited a deadly weapon. In this appeal, Comisky asserts the trial court erred by entering an affirmative finding regarding the use or exhibition of a deadly weapon, and she asks this Court to modify the trial court's judgment by deleting that finding. The State concedes error and joins Comisky's request that we modify the trial court's judgment to delete the finding. The Court of Criminal Appeals has held that to "use" a deadly weapon for purposes of an affirmative finding, the defendant must use the weapon while committing a felony offense that is separate and distinct from a possession of the weapon offense. Narron v. State, 835 S.W.2d 642, 644 (Tex.Crim.App. 1992). In this case, Comisky did not use the weapon in furtherance of any collateral felony. See id. The sole charge against Comisky was possession of a gun on the premises of a public school. The trial court lacked authorization to enter an affirmative finding of use or exhibition of a deadly weapon. See id. Accordingly, we modify the trial court's judgment to delete the affirmative finding. We affirm the trial court's judgment as modified. AFFIRMED AS MODIFIED.
Comisky's brief also refers to a separate trial court proceeding, which was docketed as trial court cause number 97007. Comisky's notice of appeal referenced only the trial court cause number of the case in which she was charged with possession of a gun in a prohibited area. No other case is properly before this Court.
The State does not assert that Comisky failed to preserve error. See Cobb v. State, 95 S.W.3d 664, 666 (Tex.App.-Houston [1st Dist.] 2002, no pet.); see also French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992).