Opinion
02-22-00325-CR
09-07-2023
Mark Wright, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 432nd District Court Tarrant County, Texas Trial Court No. 1658302D
Before Sudderth, C.J.; Kerr and Walker, JJ.
MEMORANDUM OPINION
Elizabeth Kerr, Justice
Mark Wright appeals from his convictions for burglary of a habitation with intent to commit another felony, namely aggravated assault with a deadly weapon, and family-violence assault with a previous conviction. See Tex. Penal Code Ann. §§ 22.01(b)(2)(A), 22.02(a)(2), 30.02(a)(1), (3), (d). In a single point, Wright complains that the trial court erred by including an affirmative deadly-weapon finding in each judgment and argues that both judgments should be reformed to delete those findings. We will affirm the burglary judgment and affirm as modified the family-violence-assault judgment.
I. Background
L.H. is Wright's former girlfriend. In May 2019, Wright broke into L.H.'s home, assaulted her by punching and hitting her, and slashed her then-boyfriend's arm and hand with a knife. Wright cut the boyfriend's arm to the bone, causing him to bleed profusely and to need emergency medical care.
Wright was charged in a three-count indictment with burglary of a habitation with intent to commit another felony (Count One), burglary with the intent to commit assault (Count Two), and family-violence assault with a previous conviction (Count Three). Relevant to this appeal, the indictment alleged in Count One that Wright did (1) "intentionally or knowingly, without the effective consent of [L.H.], the owner thereof, enter a habitation with intent to commit an aggravated assault with a deadly weapon," and (2) "intentionally or knowingly, without the effective consent of [L.H.], the owner thereof, enter a habitation and did attempt to commit or commit aggravated assault with a deadly weapon." In Count Three, the indictment alleged that Wright did "intentionally or knowingly cause bodily injury to [L.H.], a member of the defendant's family or household or with whom the defendant had a dating relationship, by striking her with his hand." The indictment also alleged a familyviolence prior-conviction paragraph and contained the following deadly-weaponfinding notice: "it is further presented to said court, that a deadly weapon, namely, a knife, that was capable of causing death or serious bodily injury, was used or exhibited during the commission of the felony offense or felony offenses set out above."
In the interest of brevity, we do not quote the prior-conviction paragraph.
The State arraigned Wright before the jury on all three counts, the familyviolence prior-conviction paragraph, and the deadly-weapon-finding notice. Wright pleaded "not guilty," and the trial court entered a plea of "not true" to the deadly-weapon-finding notice.
A jury found Wright guilty of "burglary of a habitation with intent to commit aggravated assault as charged in Count One of the indictment" and "assault bodily injury of a family member with a prior family violence conviction as charged in Count Three of the indictment." The jury assessed Wright's punishment at 15 years' incarceration on Count One and ten years' incarceration on Count Three. The trial court sentenced Wright accordingly and ordered that his sentences run concurrently. Under the heading "Findings on Deadly Weapon" in each judgment, the trial court entered the following finding: "Yes, not a firearm." Wright challenges these deadly-weapon findings on appeal.
The jury was instructed to not consider Count Two if it found Wright guilty of Count One.
II. Analysis
In his only point, Wright argues that the trial court erred by entering an affirmative deadly-weapon finding on Count One and Count Three because "the indictment did not allege the use or exhibition of a deadly weapon, except in the Deadly Weapon Notice, which [he] was arraigned on but [which was] not submitted to the jury." He asks us to reform both judgments by removing the deadly-weapon findings.
An affirmative deadly-weapon finding has a negative impact on a defendant's eligibility for community supervision, parole, and mandatory supervision. Sierra v. State, 280 S.W.3d 250, 254 (Tex. Crim. App. 2009); see Tex. Gov't Code Ann. §§ 508.145, .149, .151; Tex. Code Crim. Proc. Ann. art. 42A.054(b). "For a trial court to enter a deadly-weapon finding in the judgment, the trier of fact must first make an 'affirmative finding' to that effect." Duran v. State, 492 S.W.3d 741, 746 (Tex. Crim. App. 2016); see Tex. Code Crim. Proc. Ann. art. 42A.054(c). An affirmative deadly-weapon finding is the factfinder's express determination that a deadly weapon was actually used or exhibited during the commission of the offense or immediate flight from the scene. See Duran, 492 S.W.3d at 746-47; Lifleur v. State, 106 S.W.3d 91, 94 (Tex. Crim. App. 2003); Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985).
When the jury is the trier of fact, it makes an affirmative deadly-weapon finding when (1) the indictment specifically alleged that a deadly weapon was used (using the words "deadly weapon") and the defendant was found guilty "as charged in the indictment"; (2) the indictment did not use the words "deadly weapon" but alleged the use of a deadly weapon per se (such as a firearm); or (3) the jury made an express fact-finding in response to a special-issue submission during the trial's punishment stage that a deadly weapon was used. Duran, 492 S.W.3d at 746 (citing Polk, 693 S.W.2d at 396). "[W]e look to the charging instrument, the jury charge, and the jury verdict to evaluate the propriety of an entry of a deadly-weapon finding in the judgment." Id. (citing Polk, 693 S.W.2d at 393-96).
A deadly weapon is "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury" or "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(17). While not a deadly weapon per se, a knife can be a deadly weapon because, depending on its use, it is capable of causing death or serious bodily injury. See McCain v. State, 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000).
Here, as noted, the indictment alleged in Count One that Wright did "enter a habitation with intent to commit an aggravated assault with a deadly weapon" and did "enter a habitation and did attempt to commit or commit aggravated assault with a deadly weapon." The indictment also alleged "that a deadly weapon, namely, a knife, that was capable of causing death or serious bodily injury, was used or exhibited" during the commission of the offense. Consistent with the indictment, the jury was charged on Count One as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about [the] 19th day of May, 2019, in Tarrant County, Texas, the defendant, Mark Wright, did intentionally or knowingly without the effective consent of [L.H.], the owner thereof, enter a habitation with intent to commit aggravated assault with a deadly weapon; or if you further find from the evidence beyond a reasonable doubt that on or about [the] 19th day of May, 2019, in Tarrant County, Texas, the defendant, Mark Wright, did intentionally or knowingly, without the effective consent of [L.H.], the owner thereof, enter a habitation and did attempt to commit or commit aggravated assault with a deadly weapon, then you will find the defendant guilty of the offense of burglary of a habitation with intent to commit aggravated assault with a deadly weapon as charged in Count One of the indictment.
The charge instructed the jury that "[a] person commits an offense of aggravated assault if the person intentionally or knowingly uses or exhibits a deadly weapon during the commission of the assault." The charge defined "deadly weapon" as "a firearm or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."
The jury found Wright "GUILTY of burglary of a habitation with intent to commit aggravated assault as charged in Count One of the indictment." Based on the indictment, the jury charge, and the jury verdict, we conclude that the jury made an affirmative deadly-weapon finding on Count One when it found Wright guilty as charged in Count One of the indictment. See Duran, 492 S.W.3d at 746. We thus overrule the portion of Wright's point challenging the deadly-weapon finding on Count One.
In a single sentence, Wright appears to challenge the sufficiency of the evidence supporting the deadly-weapon finding, pointing out that although L.H.'s boyfriend's emergency-room physician testified at trial that the boyfriend's wounds were consistent with being caused by a knife rather than glass or a blunt object, "no knife was observed at the scene" by two first responders. The treating physician- who had treated knife wounds before-additionally testified that a knife is "definitely" capable of being a deadly weapon or causing serious bodily injury, that the boyfriend suffered serious bodily injury from his wounds, and that even with surgical treatment, it was possible that the boyfriend's hand would not regain full functionality. In addition to this testimony, the jury was shown pictures of the boyfriend's injuries, and L.H. testified that Wright slashed her boyfriend's arm and hand with a knife that she recognized as a big pocketknife belonging to Wright. Viewing the evidence in the light most favorable to the verdict, a reasonable factfinder could have concluded that Wright used or exhibited a knife that was a deadly weapon during the commission of the assault. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017); Brister v. State, 449 S.W.3d 490, 493 (Tex. Crim. App. 2014).
We conclude differently as to Count Three. The jury found Wright guilty of "assault bodily injury of a family member with a prior family violence conviction as charged in Count Three of the indictment," but the indictment did not allege that Wright had used a deadly weapon in the commission of that offense. And the jury was charged on Count Three as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about [the] 19th day of May, 2019, in Tarrant County, Texas, the defendant, Mark Wright, did intentionally or knowingly cause bodily injury to [L.H.], a member of the defendant's family or household or with whom the defendant had a dating relationship, by striking her with his hand; and that prior to the commission of the offense set out above, the defendant had been previously convicted of an assault with bodily
injury against a member of the defendant's family or household or with whom the defendant had a dating relationship, namely, on the 19th day of September, 2014, in the County Criminal Court Number Five of Tarrant County, Texas in Cause Number 1381208, then you will find the defendant guilty of the offense of assault bodily injury of a family member with a prior family violence conviction as charged in Count Three of the indictment.
Based on the charging instrument, the jury charge, and the jury verdict, we cannot conclude that the jury made an affirmative deadly-weapon finding on Count Three when it found Wright guilty as charged in Count Three of the indictment because the indictment did not allege the use of a deadly weapon when he assaulted L.H. See id. Moreover, the indictment did not allege the use of a deadly weapon per se, and the jury did not make an express fact-finding that a deadly weapon was used in response to a special-issue submission in the punishment stage. See id. The trial court thus erred by making a deadly-weapon finding in the Count Three judgment. Accordingly, we sustain Wright's sole point in part, and we will modify the Count Three judgment to delete the deadly-weapon finding. See id. at 750.
The State agrees that the deadly-weapon finding in the Count Three judgment was erroneous and that the judgment should be modified to delete that finding.
III. Conclusion
Having overruled Wright's sole point in part, we affirm the trial court's Count One judgment (burglary of a habitation with intent to commit another felony, namely aggravated assault with a deadly weapon). Because we have sustained the rest of Wright's sole point, we modify the trial court's Count Three judgment (family- violence assault with a previous conviction) to delete the words "Yes, not a firearm" under the heading "Findings on Deadly Weapon" and affirm that judgment as modified.