Fann v. State

702 S.W.2d 602, 1986 Tex. Crim. App. LEXIS 1184

• Court: Court of Criminal Appeals of Texas
• Decided: January 29, 1986
• Docket: 65784
• Status: Published

Opinions

OPINION

TEAGUE, Judge.

Frank Edward Fann, appellant, was tried and convicted by a jury of committing the offense of aggravated sexual abuse. The trial judge assessed punishment at twenty-five (25) years’ confinement in the Department of Corrections. After reforming the judgment of conviction, we will affirm.

Appellant presents three grounds of error for review, which we will overrule. None of them concern the sufficiency of the evidence.

Appellant asserts in his second ground of error that the trial judge should not have entered in the judgment of conviction a finding that a deadly weapon was used or exhibited during the commission of the offense of aggravated sexual abuse. We agree, but also find that because appellant was convicted of one of the enumerated offenses listed in Art. 42.12, Section 3f(a)(l), V.A.C.C.P., prior to amendment, also see Art. 42.12, Section 15(b), V.A.C. C.P., prior to amendment, the improper affirmative finding will not have any effect upon when appellant will become eligible for release on “regular” parole. Nevertheless, because the trial judge should not have made the affirmative finding, we will reform and correct the judgment of conviction by deleting therefrom the following: “The court finds that defendant herein used or exhibited a deadly weapon during the commission of said offense.”

The indictment in this cause charged appellant with committing the offense of aggravated sexual abuse. It did not allege that a deadly weapon was used or exhibited during the commission of the offense, nor was the jury instructed on the issue, whether a deadly weapon was used or exhibited during the commission of the alleged offense.

In Ex parte Thomas, 638 S.W.2d 905, 907 (Tex.Cr.App.1982), this Court, speaking through Presiding Judge Onion, held: “Reading Article 42.12, Sec. 3f(b), V.A.C.C.P., together with Articles 36.13 and 38.04, V.A.C.C.P., and applying the statutory rules of construction and the Code Construction Act (Article 5429b-2, Sec. 3.03, V.A.C.S.), we conclude that when the jury is the trier of the facts the ‘affirmative finding’ mentioned in said Article 42.-12, Sec. 3f(b), as to whether a firearm was used or exhibited during the commission of the offense, etc., must be made by the jury.” In Ex parte Barecky, 639 S.W.2d 943, 945 (Tex.Cr.App.1982), this Court, speaking through Judge Tom Davis, extended the holding in Ex parte Thomas, supra, and held: “We see no reason to distinguish between the ‘affirmative finding’ in Sec. 3f(a) [under which this cause falls] and the ‘affirmative finding¹ in Sec. 3f(b), with respect to the question of who is to make such a finding.” Thus, if the jury is the trier of fact, it, and not the trial judge, must make the affirmative finding mentioned in either Sec. 3f(a) or Sec. 3f(b) of Art. 42.12, supra. Also see Polk v. State, 693 S.W.2d 391 (Tex.Cr.App.1985).

The indictment in this cause did not allege that a deadly weapon was used or exhibited during the commission of the offense, nor does the charge to the jury on guilt mention anything about a deadly weapon. Thus, without an “affirmative finding” by the jury, who was the trier of fact in this cause, the trial judge had no authority to enter the “affirmative finding”. Ex parte Thomas, supra; Ex parte Barecky, supra; Polk v. State, supra. The judgment of conviction will be reformed and corrected by this Court by deleting therefrom the following: “The court finds that defendant herein used or exhibited a deadly weapon during the commission of said offense.”

Because of the disposition that we have made of appellant’s second ground of error, we pretermit for another day a discussion of the issue he raises in his first ground of error, namely, that before an “affirmative finding,” that a deadly weapon was used or exhibited during the commission of an offense may be entered in the judgment of conviction, the charging instrument must contain this allegation. Cf. Polk v. State, supra, (Concurring Opinion by Clinton, J.)

In his third ground of error, appellant asserts that the order of transfer of his cause from one district court of Dallas County to another district court of Dallas County is invalid and deprived the transferee court of jurisdiction because it was not properly signed by the presiding judge of the court from which the cause was transferred. We disagree.

The record reflects that appellant did not complain of the transfer order in the trial court, but does so for the first time on appeal. In Torres v. State, 161 Tex.Cr.R. 480, 278 S.W.2d 853 (1955), this Court held that to properly complain of a transfer order on appeal, the defendant must first show that he questioned in the trial court the validity of the transfer order. By waiting until now to complain of the transfer order, appellant has waived his complaints that the transfer order is invalid and deprived the transferee court of jurisdiction because it was not signed by the judge of the court from which the cause was transferred. Also see Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974), and the cases cited therein. Appellant’s third ground of error is overruled.

The judgment in this cause, as reformed, is affirmed.

CLINTON, J., not participating. MILLER and WHITE, JJ., dissent.

1 . In making this statement, it is obvious that the author of the majority opinion has clearly overlooked the provisions of Art. 42.12, Section 3f(a)(2), V.A.C.C.P., prior to amendment, which clearly states that before the finding that a deadly weapon was used or exhibited during the commission of the offense shall be entered in the judgment, there first must be on the record either a written statement by the jury or an oral declaration on the record by the trial judge, assuming for the moment that he can be the "trier of fact.” The entry in the judgment is expressly conditioned "Upon an affirmative finding [by the trier of fact].” In light of this record, the omission in the record of "an affirmative finding" prior to the entry of the deadly weapon finding in the judgment amounts to a "no verdict" on the deadly weapon issue.