Opinion
No. 05-04-00254-CR
Opinion Filed February 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-56006-NR. Affirm.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Gary Deshong Randle appeals his conviction for injury to a child. After the jury found appellant guilty, the trial court assessed punishment at confinement for life. In two issues, appellant contends the trial court erred by (1) submitting a special issue on a deadly weapon during the guilt/innocence phase of the trial; and (2) submitting an erroneous jury charge. We overrule appellant's points of error and affirm the trial court's judgment. In his first issue, appellant contends the trial court erred by submitting a special issue on a deadly weapon charge during the guilt/innocence phase of the trial. A trial court is not prohibited from submitting a special issue on the use of a deadly weapon during the guilt/innocence phase of the trial if the defendant had notice that the use of a deadly weapon was an issue in the case. McIntosh v. State, 855 S.W.2d 753, 771 (Tex.App.-Dallas 1993, pet. denied). In fact, the court of criminal appeals has determined that although the deadly weapon special issue may be submitted during punishment, it is the better practice to submit it at the guilt/innocence phase of the trial. Hill v. State, 913 S.W.2d 581, 586 (Tex.Crim.App. 1996). Here, the indictment alleged appellant intentionally and knowingly caused bodily injury to L.R., a child 14 years or younger, by striking her head with a belt, a deadly weapon, and by striking her body with a belt, a deadly weapon. Thus, the indictment gave appellant notice that the use of a deadly weapon would be an issue in the case, and it was not error to submit the special issue charge during the guilt/innocence phase of the trial. See Hill, 913 S.W.2d at 586. We overrule appellant's first issue. In his second issue, appellant appears to argue that the deadly weapon allegation in the indictment required the State to prove the belt he used to strike L.R. was a deadly weapon, and because it did not, the evidence is legally insufficient to support his conviction. In support of this argument, appellant relies on Curry v. State, 30 S.W.3d 394, 399 (Tex.Crim.App. 2000), and Burrell v. State, 526 S.W.2d 799, 802 (Tex.Crim.App. 1975). In Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex.Crim.App. 2001), the court of criminal appeals overruled Curry, Burrell, and surplusage law because of the "inconsistencies between the Burrell exception and the fatal variance doctrine." Id. at 257. Including the deadly weapon special issue is an allegation of non-statutory fact of the type discussed in Judge Kellers's concurring opinion in Fuller v. State, 73 S.W.3d 250, 256-57 (Tex.Crim.App. 2002). Whether the State has an obligation to prove such an allegation depends on whether the allegation is necessary for an adequate description of the particular offense for which the defendant was tried. Id. at 256. Under the rule adopted in Gollihar, that necessity turns on considerations of notice and double jeopardy and is evaluated through the material variance test. Id. Thus, we must consider whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently-drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. See Gollihar, 46 S.W.3d at 257. Here, alleging the belt was a deadly weapon did not mislead appellant. Rather, it served to notify appellant that the State intended to pursue a deadly weapon finding under article 42.12, impacting appellant's community supervision and parole eligibility. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (a)(2) (Vernon Supp. 2004-05). Determination of the belt as a deadly weapon was not necessary to adequately describe the particular offense for which appellant was tried, that purpose was served by the allegations that appellant injured L.R. "by striking [her] head with a belt" and "by striking [her] body with a belt." Thus, the indictment sufficiently informed appellant of the crime with which he was charged and allowed him to prepare an adequate defense. With respect to double jeopardy, appellant clearly would not be at risk for a subsequent prosecution for injuring L.R. by striking her with a belt on her head or body on the same dates as those alleged in this indictment. Under these circumstances, it was not necessary for the State to prove the belt was a deadly weapon in order to convict appellant of injury to a child. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.