Hoang v. State

Full title: HUYNH THANH HOANG, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jul 1, 2004

No. 05-03-00543-CR (Tex. App. Jul. 1, 2004)

Opinion

No. 05-03-00543-CR

Opinion Filed July 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F95-75212-L. Affirm.

Before Justices FITZGERALD, RICHTER, and LANG.

OPINION

Opinion By Justice FITZGERALD.

Appellant pleaded guilty to aggravated assault as part of a negotiated plea agreement.¹ Pursuant to that agreement, the trial court made no affirmative deadly-weapon finding in appellant's judgment. The court sentenced appellant to ten years' confinement, suspended the sentence, and placed appellant on community supervision for a period of ten years. While on probation, appellant was arrested when he attempted to pay for a purchase with a series of checks and credit cards that belonged to someone else. The State moved to revoke appellant's probation, alleging six grounds. Appellant pleaded true to the grounds alleging failure to report to a probation officer and failure to pay a probation fee. The trial court imposed the original ten-year sentence. In a single point of error, appellant contends that because the trial court followed the plea bargain agreement, which provided for "no affirmative finding of a deadly weapon," the agreement had "removed" an essential element of the offense of aggravated assault. Therefore, appellant argues, he had effectively pleaded guilty only to a misdemeanor assault, and the trial court's judgment and sentence are void. We disagree and affirm the trial court's judgment. To prove an aggravated assault, the State must prove both (1) the elements of a simple assault, see Tex. Pen. Code Ann. §§ 22.01(a)(1) ("A person commits an offense if the person: intentionally, knowingly, or recklessly causes bodily injury to another"), and (2) the aggravating factor of the use of a deadly weapon. See id. § 22.02(a)(2) ("A person commits an offense if the person commits assault as defined in § 22.01 and the person: . . . uses or exhibits a deadly weapon during the commission of the assault") (Vernon 2003). The indictment in this case charged that appellant committed an aggravated assault when he did:

unlawfully then and knowingly and intentionally cause bodily injury to MARK ANTHONY COSSIO, hereinafter called complainant, by shooting said complainant, and said defendant did use and exhibit a deadly weapon to-wit: a firearm, during the commission of the assault.

The plea papers, including the plea bargain agreement, reflect that appellant was to plead guilty to the felony offense of aggravated assault. The plea agreement required appellant to testify and, in return, he was to receive a ten-year probated sentence, serve thirty days in the county jail as a condition of probation, and pay a five hundred dollar fine. Additional provisions of the agreement provided for "backtime" credit, work release, and "no affirmative finding of a deadly weapon." In November 1995, appellant entered his plea of guilty. Appellant's judicial confession, admitted into evidence, stated in relevant part:

On the 25^th day of June 1995, in Dallas County, Texas, I did unlawfully, then and there knowingly and intentionally cause bodily injury to MARK ANTHONY COSSIO, hereinafter called complainant, by shooting said complainant, and said defendant did use and exhibit a deadly weapon to-wit: a firearm, during the commission of the assault.

The confession included all elements of the offense of aggravated assault, precisely as that offense was charged in appellant's indictment. There is no question that appellant's confession constituted evidence supporting the judgment of conviction for the offense of aggravated assault, not misdemeanor assault. A judicial confession, standing alone, will support a conviction upon a guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979). Thus, the State met its burden of proof as to all elements of the charged offense. Appellant attempts to train the Court's focus on the purportedly "removed" finding of a deadly weapon. We reject appellant's argument that adherence to a plea bargain that called for no affirmative finding as to a deadly weapon somehow "removed" an essential element of the charged offense. Simply stated, appellant's guilty plea — evidenced by his judicial confession — stands alone on the issue of guilt. The affirmative judicial finding upon which appellant focuses has absolutely no bearing upon that issue. Instead, the deadly-weapon finding bears upon the issue of punishment. Specifically, the finding relates to the ramifications of the available punishment alternatives: an affirmative finding would have eliminated court-ordered probation as a possible punishment and affected parole eligibility. See Hooks v. State, 860 S.W.2d 110, 113-14 (Tex.Crim.App. 1993). The absence of an affirmative finding rendered appellant eligible for court-ordered probation. Id. But neither the presence or absence of this judicial finding was relevant to appellant's guilt of aggravated assault. See Ex parte Lucke, 742 S.W.2d 818, 820 (Tex. App.-Houston [1^st Dist.] 1987, no pet.) (valid judgment of conviction for aggravated assault after similar plea bargain). Appellant appears to argue that his initial probated sentence constitutes evidence that his plea was actually for a misdemeanor assault. He relies upon the rule that a judge may not place a defendant on probation for an offense in which a deadly weapon was used or exhibited during the commission of a felony. See Tex. Code Crim. Pro. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2004). However, appellant again misunderstands the purpose and effect of the deadly-weapon finding. As we have stated, the deadly weapon finding bears on punishment alone. The trial court, as the trier of fact on punishment, has the authority, but not the obligation, to make an affirmative finding of the use of a deadly weapon. Banks v. State, 29 S.W.3d 642, 646 (Tex. App.-Houston [14^th Dist.] 2000, pet. ref'd). And in Hooks, the court of criminal appeals declared that section 3g(a)(2)'s bar to probation is triggered only by the trial court's entry of "a separate and specific affirmative finding" that a deadly weapon was used or exhibited during the commission of the offense. 860 S.W.2d at 113-14. The court concluded that the absence of a separate deadly-weapon finding in the judgment meant the trial court could place the defendant on probation. See id. at 114. Accordingly, appellant was correctly placed on probation, and the probation rule had no effect on his plea of guilty. This rule does not support appellant's argument. The legal consequences of the entry of an affirmative finding concerning a deadly weapon are relevant only to the punishment to be imposed, not to the existence of an essential element charged by the indictment. Accordingly, the trial court's judgment and sentence are not void. We overrule appellant's point of error and affirm the trial court's judgment.

1 The conviction arose from an incident in which the complainant was shot in the chest.