Opinion
No. 05-04-01676-CR
Opinion Filed July 11, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-01870-IM. Affirm.
Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.
MEMORANDUM OPINION
Carlos Marlon Bratton appeals his conviction for aggravated robbery. After appellant pleaded guilty before the jury, it assessed punishment at confinement for life. In four points of error, appellant contends (1) the evidence is legally insufficient to support the deadly weapon finding, (2) the jury charge is erroneous because it does not contain instructions regarding party culpability for a deadly weapon, (3) the jury charge is erroneous because it contains an instruction regarding good time credit, and (4) article 37.07, section 4(a) of the Texas Code of Criminal Procedure is unconstitutional as applied to appellant. We overrule appellant's points of error and affirm the trial court's judgment. In his first point of error, appellant contends the evidence is legally insufficient to support the deadly weapon finding. He relies on the standard of review set out in Jackson v. Virginia, 443 U.S. 307 (1979). However, that standard does not apply when a defendant has voluntarily pleaded guilty. See Ex parte Martin, 747 S.W.2d 789, 792-93(Tex.Crim.App. 1988); O'Brien v. State, 154 S.W.3d 908, 910 (Tex.App.-Dallas 2004, no pet.). Rather, we review the record to see if the evidence "embraces every essential element of the offense charged" and establishes the defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). Appellant pleaded guilty before the jury to the indictment, which contains the deadly weapon allegation. His plea alone is legally sufficient to support the deadly weapon finding. See Turnipseed v. State, 609 S.W.2d 798, 800-01 (Tex. 1980); Keller v. State, 125 S.W.3d 600, 604 n. 1 (Tex.App.-Houston [1st Dist.] 2003) pet. dism'd 146 S.W.3d 677 (Tex.Crim.App. 2004), cert. denied, 125 S.Ct. 1603 (2005). Further, appellant judicially confessed to the offense as charged. Appellant's judicial confession is likewise sufficient to support the deadly weapon finding. Keller, 125 S.W.3d at 605. We overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred by failing to include an instruction regarding party culpability for a deadly weapon. When, as here, a defendant in a felony case enters a guilty plea before the jury, there is no issue of guilt to be determined and it is proper for the trial court to instruct the jury to return a verdict of guilty, charge the jury on the law as to the punishment issues, and instruct the jury to decide only those issues. Holland v. State, 761 S.W.2d 307, 313 (Tex.Crim.App. 1988). Because appellant pleaded guilty as charged in the indictment, appellant's use of a deadly weapon was not a fact issue for the jury to determine and the trial court did not err by failing to include the complained-of instruction. We overrule appellant's second point of error. In his third point of error, appellant contends the trial court erred by instructing the jury on the availability of good conduct time credit because he is ineligible for a reduction, due to good conduct, in the time he has to serve because he was convicted of aggravated assault with a deadly weapon. See Tex. Gov't Code Ann. § 508.149(a)(1) (Vernon 2004). According to appellant, because of his ineligibility, the court should not have included the instruction because it was misleading to the jury. Appellant fails to acknowledge, however, that the court of criminal appeals specifically held in Luquis v. State, 72 S.W.3d 355 (Tex.Crim.App. 2002), that a trial judge does not commit error when he instructs the jury, as required, on the availability of good conduct time, even if the defendant is ineligible for a reduction of time. Id. at 363. We overrule appellant's third point of error. In his fourth point of error, appellant contends article 37.07 section 4(a) is unconstitutional as applied to him. We disagree. As the court of criminal appeals noted in Luquis, the instruction allows the jury to consider the existence of good conduct time, but it specifically instructs the jury not to consider how good conduct time may be applied to appellant. Id. at 366. We assume the jury followed the instructions as given and we will not find constitutional error unless we conclude that there is a reasonable probability that the instruction mislead the jury. Id. at 367. As in Luquis, nothing in our record shows the jury discussed, considered, or tried to apply what they were told about good conduct time. We overrule appellant's fourth point of error. Accordingly, we affirm the trial court's judgment.