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Hart v. State

Court of Appeals of Texas, Fifth District, Dallas
Nov 3, 2006
No. 05-06-00029-CR (Tex. App. Nov. 3, 2006)

Opinion

No. 05-06-00029-CR

Opinion issued November 3, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F04-71905-SK. Affirmed.

Before Justices MORRIS, WHITTINGTON, and RICHTER.


MEMORANDUM OPINION


Keith Hart appeals his conviction for aggravated robbery. After finding appellant guilty and that he used or exhibited a deadly weapon, the jury assessed punishment, enhanced by one prior conviction, at twenty-three years' confinement. In two issues, appellant contends the trial judge erred in making a deadly weapon finding and in charging the jury on an incorrect punishment range. We affirm the trial court's judgment. In his first issue, appellant contends the trial judge erred in making an affirmative finding that appellant used or exhibited a deadly weapon during commission of the offense. Appellant states he is not challenging the sufficiency of the evidence but the fact that the jury was never asked to find whether appellant used or exhibited a deadly weapon. Because no specific finding on use of a deadly weapon was made by the jury in this case, appellant claims the deadly weapon finding was improper and must be deleted. We disagree. When the jury is the trier of fact, an affirmative finding on use of a deadly weapon may be entered in the following three instances: (i) the indictment alleges use of a deadly weapon and the verdict reads "guilty as charged in the indictment," (ii) the indictment alleges use of a weapon which is per se a deadly weapon and the verdict reads "guilty as charged in the indictment," and (iii) the trier of fact responds affirmatively to a special issue submitted during the punishment stage of trial. Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App. 1985). In cases where the jury is instructed on the law of parties, the jury may find the defendant himself used or exhibited a deadly weapon or that the defendant knew that a deadly weapon would be used or exhibited. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2006). When the use of a deadly weapon is an element of the offense and is alleged in the indictment, and the jury finds the defendant guilty as alleged in the indictment, the jury necessarily makes a factual finding to support the entry of an affirmative finding of the use or exhibition in the judgment. Sarmiento v. State, 93 S.W.3d 566, 570 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); Johnson v. State, 6 S.W.3d 709, 714 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). In this case, the indictment alleged that, while in the course of committing theft, appellant intentionally and knowingly threatened and placed Linda Martinez in fear of imminent bodily injury and death and that appellant "did then and there use and exhibit a deadly weapon, to-wit: a firearm." The charge instructed the jury to find appellant guilty of aggravated robbery only if it found beyond a reasonable doubt that appellant

acting as a party with Leonard Thomas and/or Keiaron Busby, and while in the course of committing theft and with intent to obtain or maintain control of the property of Linda Martinez, hereafter called complainant . . . with the intent to promote or assist Leonard Thomas and/or Keiaron Busby in the commission of said Aggravated Robbery with Leonard Thomas and/or Keiaron Busby, by encouraging, directing, aiding, or attempting to aid Leonard Thomas and/or Keiaron Busby, did then and there intentionally or knowingly threaten or place the said complainant in fear of imminent bodily injury or death, and Leonard Thomas and/or Keiaron Busby did then and there use or exhibit a deadly weapon, to-wit: a firearm, then you will find [appellant] guilty of Aggravated Robbery.
The jury then found appellant guilty. By finding appellant "guilty of Aggravated Robbery, as charged in the indictment," the jury necessarily found appellant was a party to the offense and knew a deadly weapon would be used in the commission of the offense. Because the jury made the factual finding necessary to support entry of an affirmative finding of the use or exhibition of a deadly weapon in the judgment, the trial judge did not err in entering the affirmative finding in the judgment. See Sarmiento, 93 S.W.3d at 570. We overrule appellant's first issue. In his second issue, appellant contends the trial judge erred in charging the jury on an incorrect range of punishment. Under this issue, appellant claims the judge granted the State's motion to strike the enhancement paragraph and, therefore, his punishment range should have been 5-99 years and not the instructed 15-99 years. Plea bargaining "consists of the prosecutor making concessions regarding specific punishment, lesser charges, or the reduction of counts which comprise the charging instrument in exchange for the defendant's concession as to his plea of guilty or plea of nolo contendere." Ex parte Williams, 637 S.W.2d 943, 947 (Tex.Crim.App. 1982). As a general rule, a defendant may withdraw his plea at any time before judgment is pronounced or the case is taken under advisement by the trial judge. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. [Panel Op.] 1979). If the plea is withdrawn, the State and appellant are no longer bound to carry out the terms of the agreement. See Ortiz v. State, 933 S.W.2d 102, 104 (Tex.Crim.App. 1996) (plea agreement is contractual arrangement; until all necessary parties agree to terms of contract, agreement is not binding); DeRusse v. State, 579 S.W.2d 224, 236 (Tex.Crim.App. [Panel Op.] 1979) (when agreement is withdrawn prior to entry of plea, appellant is left in same position he would have been in had no agreement been made). In this case, the record shows the State agreed to delete the enhancement paragraph in exchange for appellant entering an open guilty plea. When appellant later decided to forgo a guilty plea and to proceed to trial before a jury, the State was no longer required to carry out its side of the agreement, i.e., the State was no longer required to drop the enhancement paragraph. The jury was charged to assess appellant's punishment at life or a term of not more than 99 years or less than 15 years. The punishment range for aggravated robbery, enhanced with one prior felony conviction, is "life, or for any term of not more than 99 years or less than 15 years." Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2006). Because the jury was properly charged on the appropriate punishment range, we cannot conclude the trial judge erred. We overrule appellant's second issue. We affirm the trial court's judgment.


Summaries of

Hart v. State

Court of Appeals of Texas, Fifth District, Dallas
Nov 3, 2006
No. 05-06-00029-CR (Tex. App. Nov. 3, 2006)
Case details for

Hart v. State

Case Details

Full title:KEITH HART, Appellant, v. THE STATE OF TEXAS, Appellee

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

Date published: Nov 3, 2006

Citations

No. 05-06-00029-CR (Tex. App. Nov. 3, 2006)