Nos. 05-02-01896-CR, 05-02-01897-CR, 05-02-01898-CR, 05-02-01899-CR, 05-02-01900-CR
Opinion Filed January 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-23519-Rs, F02-23627-Ts, F02-23636-Ts, F02-23638-Ts, and F02-23640-Ts. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice RICHTER.
Following a consolidated trial, a jury convicted LaVictor Deron McKnight of the aggravated robbery and aggravated kidnapping of Eulolio Alcocer, the aggravated robbery and aggravated kidnapping of Alcocer's pregnant wife, and the aggravated kidnapping of the Alcocers's two-year old son. The jury assessed punishment in each robbery case at forty-five years imprisonment and in each kidnapping case at twenty years imprisonment. In each of the five cases, the trial court entered a deadly weapon finding. On appeal, appellant challenges those deadly weapon findings and asserts charge error. We affirm.
Deadly Weapon Findings
Before a trial court may enter a deadly weapon finding when the jury is the fact finder, the jury must make an express finding that a deadly weapon was used or exhibited. Polk v. State, 693 S.W.2d 391, 394 (Tex.Crim.App. 1985). The jury's verdict on the indictment will constitute an affirmative finding of a deadly weapon when the indictment itself alleges a deadly weapon, when the instrument used during the offense is per se a deadly weapon, or when the defendant is a party to an offense in which a deadly weapon was used or exhibited and the defendant knew the deadly weapon would be used or exhibited. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2003); Polk, 693 S.W.2d at 394; Sarmiento v. State, 93 S.W.3d 566, 569 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). The jury may also make an affirmative finding through a deadly weapon special issue included in the jury charge or by returning a guilty verdict of a lesser-included offense based upon an application paragraph explicitly requiring the jury to find the defendant used a deadly weapon in the commission of the offense. Lafleur v. State, 106 S.W.3d 91, 98 (Tex.Crim.App. 2003); Polk, 693 S.W.3d at 394. The record here reflects the aggravated robbery indictments alleged appellant committed robbery by using and exhibiting a deadly weapon, a firearm. The aggravated kidnapping indictments alleged appellant knowingly and intentionally either (a) abducted the Alcocers with the intent to facilitate the commission of the aggravated robbery or (b) used and exhibited a deadly weapon, a firearm, during the commission of the abduction. The guilt-innocence charge in each of the five cases included an instruction on the law of parties and application paragraphs which tracked the language in the indictments and allowed the jury to convict appellant either as a principal or a party. The jury returned a general verdict in each case, finding appellant guilty of the aggravated robberies and aggravated kidnappings as "charged in the indictments." Because the jury returned a general verdict in each case, finding appellant guilty "as charged in the indictment," and each indictment alleged a deadly weapon, the jury's verdict in each case constituted an affirmative finding of a deadly weapon. Polk, 693 S.W.2d at 394. Accordingly, the court's entry of a deadly weapon finding in each case was proper. Id. Appellant maintains in his first two points of error, however, that "separate special deadly weapon findings" were required in each case. Specifically, in his first point, appellant maintains a special finding was necessary in each aggravated robbery case because the jury was charged on the law of parties. In his second point, appellant asserts the special finding was necessary in each aggravated kidnapping case because the jury was allowed to convict appellant under alternate means of committing the kidnapping, one of which did not specifically allege the use of a deadly weapon. We reject both contentions. With respect to the aggravated robberies, the indictments alleged the use of a deadly weapon as an element of the offenses. See Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003). Under the law of parties, the state had to prove appellant's participation in the offenses was accompanied with the intent to promote or assist the commission of those offenses, and thus, also had to prove appellant knew a deadly weapon would be used or exhibited. Id. § 7.02(a)(2); Sarmiento, 93 S.W.3d at 570. Before the jury could find appellant guilty as a party, it had to find beyond a reasonable doubt that appellant knew a deadly weapon would be used in the commission of the offenses. Sarmiento, 93 S.W.3d at 570 (citing Johnson v. State, 6 S.W.3d 709, 714 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd)). By its verdicts, the jury necessarily made the factual findings to support the deadly weapon findings. Id. No separate special findings were necessary. Id.; see also Parker v. State, 119 S.W.3d 350, 357-59 (Tex. App.-Waco 2003, pet. filed) (rejecting argument similar to one made by appellant). Nor were separate special findings necessary in the aggravated kidnapping cases. Although the portion of the indictments alleging appellant knowingly and intentionally abducted the Alcocers with the intent to facilitate the commission of the aggravated robbery did not specifically allege the use of a deadly weapon, the indictments charging appellant with the aggravated robberies did, and, as stated, the aggravated robbery cases and aggravated kidnapping cases were tried together. Under this means of committing the aggravated kidnappings then, the use of a deadly weapon was implicated. We overrule appellant's first and second points of error. Charge Error
In his third point of error, appellant contends the trial court erred in not including in the punishment charge the good conduct time instruction required by article 37.07, section 4(a) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). This instruction is required in cases in which the jury assesses punishment and the charged offense is listed in section 3g(a)(1) of article 42.12 or the verdict contains an affirmative finding of a deadly weapon. Id. arts. 37.07, § 4(a); 42.12, § 3g(a)(1), (2). Both aggravated robbery and aggravated kidnapping are listed in section 3g(a)(1). Appellant did not object at trial to this erroneous omission but maintains he suffered egregious harm as a result, as evidenced by the "harsh" sentences imposed by the jury. See Almanza v. State, 686 S.W.2d 157, 171-72 (Tex.Crim. App. 1984). We disagree. Section 4(a) of article 37.07 informs the jury of how good conduct time combines with actual time served to determine parole eligibility. Grigsby v. State, 833 S.W.2d 573, 576 (Tex. App.-Dallas 1992, pet. ref'd). The legislature's intent in crafting this instruction was to increase the sentences assessed by juries. Id. Thus, this instruction is not designed to benefit defendants. Id. Moreover, although appellant maintains the omission resulted in his "harsh" sentences, he fails to state how. In fact, appellant's sentences of forty-five years for the aggravated robberies and twenty years for the aggravated kidnappings fell within the proper range of punishment. See Tex. Pen. Code Ann. §§ 12.32, 12.33, 20.04(d), 29.03(b); Huizar v. State, 29 S.W.3d 249, 251 (Tex. App.-San Antonio 2000, pet. ref'd). The jury could have assessed the sentences based on the facts alone, which showed appellant and two accomplices surprised Alcocer in the parking lot of his apartment complex, pointed a gun to his head, took his car keys, then led him at gunpoint into his apartment, forced him and his family to the floor, and ransacked the apartment. We conclude appellant has failed to show egregious harm. We overrule appellant's third point of error. We affirm the trial court's judgments.