Flores v. State

690 S.W.2d 281, 1985 Tex. Crim. App. LEXIS 1396

• Court: Court of Criminal Appeals of Texas
• Decided: May 29, 1985
• Docket: 581-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

This is an appeal from a conviction for murder under V.T.C.A., Penal Code Section 19.02. The trial court assessed punishment at life imprisonment following a guilty verdict by the jury. The trial court then added an affirmative finding that a handgun was used and exhibited during the commission of the offense. On appeal, the appellant raised a number of grounds of error. In his final ground of error, appellant alleged that the evidence was insufficient to sustain the court’s finding that a handgun was used and exhibited during the commission of the offense. The 14th Court of Appeals in Houston (Judge Draughn authored the panel opinion) overruled all of appellant’s grounds of error and affirmed his conviction. However, as to the appellant’s final ground of error, the court below found that the appellant was convicted under the law of parties and, therefore, there was no finding by the jury that appellant actually fired or exhibited the handgun. The court below held that the trial court’s affirmative finding of the use of a handgun was error, but that it was harmless error. The court below affirmed the conviction, but reformed and corrected the judgment to delete the said affirmative finding. Flores v. State, 681 S.W.2d 94 (Tex.App.1984).¹ We agree.

In the state’s petition for discretionary review, it raises the ground of review that the court below erred by not properly reforming the judgment of the trial court. The state argues that the court below should have replaced the language referring to the affirmative finding of a deadly weapon by the trial court with language that would show that the jury made the affirmative finding of a deadly weapon. The state argues that the evidence at trial and, more importantly, the jury’s verdict supported the said affirmative finding.

In the instant case the appellant was indicted for capital murder and, in the alternative, murder. The state elected to proceed on the murder allegation. The indictment, omitting the formal parts and the first count, reads:

“the defendant, ARTHUR FLORES, did then and there intentionally and knowingly cause the death of an individual, Brenda Diane Greener Igo, by shooting the said Brenda Diane Greener Igo with a handgun.”

There was no allegation, in the indictment, that the defendant was a party to the commission of a murder.

On the evening of October 27, 1980, appellant and three other men, Charles Bram-blett, Dennis Smith, and Odus Rogers, went to the house of John Igo for the purpose of burglary. Smith and Bramblett remained together at Ham’s Grocery Store in the getaway car after dropping the appellant and Rogers off in the alley behind the Igo residence. The appellant and Rogers entered the Igo residence through a door opening on the back yard. They were proceeding with their burglary plans when Brenda Diane Greener Igo returned home from the grocery store. Mrs. Igo came upon the two men in her home and was shot. The appellant, testifying at his trial, denied he shot Mrs. Igo. However, other evidence showed that the appellant took a pistol to the scene of the burglary.

The trial court charged the jury, in the paragraphs applying the law to the facts, on the offenses of murder, with the appellant acting individually, and murder, with the appellant as a party to that crime. The verdict of the jury, omitting the formal parts, reads:

“We, the Jury, find from the evidence beyond a reasonable doubt the defendant is guilty of murder as charged in the indictment.”

After the trial court set the appellant’s punishment at life imprisonment, the trial court added its finding to the judgment, “the Court further finds that a deadly weapon, to-wit: a handgun was used and exhibited during the commission of the offense.” The court below, after ruling that the jury did not make the affirmative finding, reformed the judgment to delete that finding.

The appellant was indicted for causing the death of an individual by shooting her with a handgun. There was no special issue submitted to the jury concerning the use of a firearm in the charge. The verdict of the jury stated that the appellant was guilty “as. charged in the indictment.” The court’s charge allowed the jury to convict the appellant if they believed that he:

“either acting alone or with another as a party to the offense, as that term is hereinbefore defined, did then and there intentionally and knowingly cause the death of deceased by shooting her with a handgun.”

An affirmative finding by the trial court would still have been appropriate in this case, however, because the trial court was the trier of the facts at the punishment stage of the trial. The appellant did not elect to have the jury set his punishment. As the trier of facts, the trial court had the power to add the affirmative finding to the judgment if the facts showed and he believed that the appellant himself used or exhibited a deadly weapon during the commission of this offense. This Court has approved this procedure. Polk v. State, 693 S.W.2d 391 (1985).

The trial court found, after the conclusion of the punishment hearing, that “a deadly weapon, to-wit: a handgun was used and exhibited” during the commission of the offense and entered that finding in the judgment. The trial court was proee-durally correct. However, since the law of parties is involved, the affirmative finding must show that the appellant used or exhibited the deadly weapon. Travelstead v. State, 693 S.W.2d 400 (1985).

Since it is impossible for this Court to determine which theory the jury used to conclude that the appellant was guilty, individually or as a party, and the trial court did not specify that this appellant used or exhibited a deadly weapon, the decision of the Court of Appeals is affirmed.

ONION, P.J., concurs in the result. TEAGUE, J., not participating.

1 . On December 29, 1983, the court below denied appellant’s motion for leave to file a supplemental brief. In that brief, appellant raised the additional ground of error that the "trial court erred in finding that defendant had used and exhibited a handgun.”