Brown v. State

Full title: WILLIE DEMONT BROWN, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 7, 2005

Nos. 05-04-00607-CR, 05-04-00608-CR (Tex. App. Nov. 7, 2005)

Opinion

Nos. 05-04-00607-CR, 05-04-00608-CR

Opinion issued November 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195^th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F-0156156-Hn F-0175461-HN. Affirmed.

Before Justices MORRIS, WRIGHT, and RICHTER.

OPINION

Opinion By Justice WRIGHT.

Willie Demont Brown appeals his convictions for manslaughter and aggravated assault. After the trial court accepted appellant's nolo contendre pleas, it assessed punishment in both causes at ten years' confinement. In three issues, appellant claims that the trial court erroneously entered deadly weapon findings in both cases and failed to ask appellant whether there was any reason sentence should not be pronounced in violation of article 42.07 of the code of criminal procedure. We overrule appellant's issues and affirm the trial court's judgment. In his first and second issues, appellant contends that because the trial court originally indicated it would not enter a deadly weapon finding in either case, its subsequent deadly weapon findings are improper and appellant's sentence should be reformed to delete them. The record reflects that when the trial court pronounced sentence, it indicated it would not enter a deadly weapon finding in either case. Directly after appellant's sentencing hearing, a discussion between the trial judge and the prosecutor ensued in which the trial judge realized that his basis for denying the State's request for deadly weapon findings, namely that appellant was not given notice that the State was seeking the findings, was incorrect. He consulted the indictments and found that appellant had, in fact, been given notice that the State was seeking deadly weapon findings. Appellant's sentencing hearing took place on a Friday. The following Monday morning, the trial judge contacted the district clerk's office and asked one of the clerks to delete the notations on the docket sheet which indicated that there would be no deadly weapon findings. The clerk did so, and prepared the judgments, which included deadly weapon findings, for the presiding judge to sign. Some time later, defense counsel learned of the deadly weapon findings and requested a hearing. At the hearing, the trial judge indicated he would not delete the findings stating that, ". . . given the pleadings and evidence that there is no choice [to enter a deadly weapon finding]. It's not a matter of discretion. It's a matter of law." In a jury trial, the trial court is required to enter a deadly weapon finding when the jury (1) found the defendant "guilty as charged in the indictment" and the indictment alleged the use of a deadly weapon; (2) found the defendant "guilty as charged in the indictment" and the indictment alleged the use of a per se deadly weapon; or (3) affirmatively answered a special issue on the use of a deadly weapon. Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App. 1985). In a bench trial, the trial court has discretion as to whether or not to impose a deadly weapon finding even where the evidence shows unequivocally that the defendant used or exhibited a deadly weapon in the commission of the offense. Ex parte Franklin, 757 S.W.2d 778, 780 (Tex.Crim.App. 1988). Appellant argues that the deadly weapon findings are improper because the trial court erroneously believed that it was required to impose them. Whether or not the trial court mistakenly thought it was required to enter a deadly weapon finding, appellant does not disagree that the trial court had discretion to enter the findings. He simply insists that it was only allowed to exercise that discretion once and directs this court to Campos v. State, 927 S.W.2d 232 (Tex.App.-Waco 1996, no pet.). In Campos, the defendant pleaded no contest and judicially confessed to the offense of injury to a child. Id. at 234. The indictment contained an allegation that Campos used a deadly weapon in the commission of the offense. Id. The trial court accepted Campos's plea and ordered a pre-sentence investigation. Id. At the sentencing hearing which followed, a visiting judge found Campos guilty and sentenced him to seventy-five years imprisonment. Id. The visiting judge also stated on the record that there would be no deadly weapon finding. Id. The sitting judge then signed the judgment, which included a deadly weapon finding. Id. at 236. The Waco Court of Appeals found that the deadly weapon finding was improper and reformed the judgment to delete it. Id. at 236-37. Campos is distinguishable from the present case. The trial court in Campos found the defendant "guilty," while in this case, the trial court found appellant "guilty as charged in the indictment." Id. at 234. The distinction is important because although Polk addresses the entry of deadly weapon findings made by a jury, rather than a trial judge, the Waco court's opinion turned on the requirement in Polk that a deadly weapon finding be entered when a jury finds a defendant "guilty as charged in the indictment." Id. at 236; See Polk, 693 S.W.2d at 396. The court reasoned that since the trial court had not found Campos "guilty as charged in the indictment," the deadly weapon finding was improper because it would have been improper had a jury found him only "guilty." Campos, 927 S.W.2d at 276. That is not the case here. The trial court clearly stated on the record that appellant was "guilty as charged in the indictment." Therefore, the reasoning in Campos is not implicated in this case. Appellant next directs us to Shute v. State, 945 S.W.2d 230 (Tex.App.-Houston [1^st Dist.] 1997, pet. ref'd), for the proposition that the trial court was collaterally estopped from altering the judgments to include deadly weapon findings because the subsequent entries of the findings constituted a re-litigation of a fact issue. The principle and effect of collateral estoppel is that "when an ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443-45 (1970). However, in Shute, the Houston Court of Appeals found that the State was not estopped from seeking a deadly weapon finding even when a previous judge in a prior trial for the same offense specifically denied the State's request for a deadly weapon finding. Id. at 232. Shute is actually adverse to appellant's position. Just as in this case, the court determined that collateral estoppel did not apply because the judgment was not final. Id. Further, it is undisputed that appellant used a deadly weapon. He judicially confessed to using a deadly weapon, namely a firearm, in the commission of both offenses for which he was convicted. The only issue was whether or not he received notice that the State planned to seek a deadly weapon finding in each case. This issue had not previously been litigated. Therefore, the doctrine of collateral estoppel does not apply. See Ashe, 397 U.S. at 443-45. Finally, the trial court modified the judgments in appellant's cases before the expiration of its plenary power. Tex.R.App.P. 21.4 (Vernon 2002). Appellant makes no argument, and we are not persuaded, that the trial court was not authorized to do so. See Awadelkariem v. State, 974 S.W.2d 721, 728-29 (Tex.Crim.App. 1998) (Myers, J., concurring). Appellant's first and second points of error are overruled. In his third issue, appellant asserts that the trial court erred in failing to give him the opportunity to speak before sentence was pronounced in violation of article 42.07 of the code of criminal procedure. Article 42.07 states:

Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him. The only reasons which can be shown, on account of which sentence cannot be pronounced, are:

(1) That the defendant has received a pardon from the proper authority, on the presentation of which, legally authenticated, he shall be discharged.

(2) That the defendant is incompetent to stand trial; and if evidence be shown to support a finding of incompentency to stand trial, no sentence shall be pronounced, and the court shall proceed under Article 46.02 of this code; and

(3) When a person who has been convicted escapes after conviction and before sentence and an individual supposed to be the same has been arrested he may before sentence is pronounced, deny that he is the person convicted, and an issue be accordingly tried before a jury, or before the court if a jury is waived, as to his identity.

Tex. Code Crim. Pro. article 42.07 (Vernon 2002). We resolve appellant's third issue against him for two reasons. First, he did not object when the trial court failed to ask if he had anything to say before sentence was pronounced. Tex.R.App.P. 33.1(Vernon 2002). Second, his point of error is inadequately briefed. Tex.R.App.P. 38.1(h) (Vernon 2002). He argues that his cases should be reversed because he was not allowed to address the trial court before sentencing, but does not cite any authority to support his position. Id. Nor does he indicate what he would have said to the trial court or that any of the three reasons described above, which would prevent his sentence from being imposed, apply to him in any way. Accordingly, appellant's third point of error is overruled. We affirm the trial court's judgments.