Juan Diamond Samarripas v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2014
• Docket: 08-12-00301-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ JUAN DIAMOND SAMARRIPAS, No. 08-12-00301-CR § Appellant, Appeal from the § v. 432nd District Court § THE STATE OF TEXAS, of Tarrant County, Texas § Appellee. (TC# 1209853D) §

OPINION

Juan Diamond Samarripas appeals the trial court’s judgment convicting him of engaging in

organized criminal activity, to wit: aggravated assault with a deadly weapon, to wit: a firearm.

In a single issue, Samarripas argues the trial court erred in sentencing him to 15 years’ in prison.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Samarripas was charged in a multi-count indictment with, inter alia, the felony offense of

engaging in organized criminal activity by committing aggravated assault with a deadly weapon.

At trial, Samarripas pled guilty to the offense and judicially confessed, in pertinent part, that he

used a deadly weapon. After examining Samarripas and admonishing him, the trial court

accepted his guilty plea, but deferred sentencing until a presentence investigation report could be

completed. At the sentencing hearing, the trial court pronounced punishment, but did not announce a deadly-weapon finding. In the written judgment and sentence, however, the trial

court included an affirmative deadly-weapon finding.

DISCUSSION

Samarripas asserts that “[i]t was not . . . appropriate for the [trial] court to assess a fifteen

year sentence because without a deadly weapon finding, the underlying offense . . . simple assault

. . . is a third-degree felony punishable by two to ten years . . . .” Although unclear from his brief,

Samarripas appears to be arguing that the trial court’s written judgment erroneously reflects that he

used a deadly weapon in the commission of the charged offense because the trial court did not

announce it was making such a finding when pronouncing his sentence.1 We disagree.

A trial court is under no obligation to pronounce an affirmative deadly-weapon finding at

sentencing to properly include that finding in its written judgment. See Marshall v. State, 860

S.W.2d 142, 143 (Tex.App.--Dallas 1993, no pet.)(holding that trial court did not err in failing to

announce its finding that appellant used a deadly weapon at sentencing because no provision in the

Texas Code of Criminal Procedure requires that announcement and because an affirmative deadly

weapon finding is not part of the defendant’s sentence that must be pronounced by the trial court);

Huskins, 176 S.W.3d at 821 (holding that trial court properly included an affirmative

deadly-weapon finding in its written judgment because, among other reasons, “a trial court is not

required to orally announce a deadly-weapon finding at sentencing if the allegation of use of a

I In making this argument, Samarripas seems to believe that the alleged lack of deadly-weapon finding alters the range of punishment to which he is subject. Samarripas is mistaken. “While a deadly-weapon finding does affect a defendant’s eligibility for probation and parole, it does not alter the range of punishment to which the defendant is subject, or the number of years assessed[]” because a deadly-weapon finding--though affecting how the sentence is served--is not part of the sentence. Ex parte Huskins, 176 S.W.3d 818, 820-21 (Tex.Crim.App. 2005), citing State v. Ross, 953 S.W.2d 748, 750-51 (Tex.Crim.App. 1997). Moreover, because a deadly-weapon finding is not part of the sentence, the statutory requirement that the trial court pronounce the defendant’s sentence in his presence does not apply. TEX.CODE CRIM.PROC.ANN. art. 42.03, § 1(a)(West Supp. 2013); Huskins, 176 S.W.3d at 820-21; Ross, 953 S.W.2d at 751. 2 deadly weapon is clear from the face of the indictment”). To properly include an affirmative

deadly-weapon finding in its written judgment, a trial court is required to make an “affirmative

finding,” i.e., an “express determination” that a deadly weapon was used or exhibited. TEX.CODE

CRIM.PROC.ANN. art. 42.12, § 3g(a)(2)(West Supp. 2013); Lafleur v. State, 106 S.W.3d 91, 94-5

(Tex.Crim.App. 2003); Polk v. State, 693 S.W.2d 391, 393 & n.1 (Tex.Crim.App. 1985).

However, a trial court is not always required to make an express determination that a

deadly weapon was used or exhibited. In cases like this one, where the defendant is properly

admonished by the trial court and pleads guilty to an indictment that, on its face, clearly alleges the

use of a deadly weapon, no separate, express finding of a deadly weapon is required because, in

accepting the defendant’s plea and adjudicating guilt, the trial court necessarily makes a finding

that the defendant used a deadly weapon. See Huskins, 176 S.W.3d at 820 (concluding that trial

court was authorized to make deadly-weapon finding because it properly admonished defendant

and accepted his guilty plea to the indictment charging defendant with using a deadly weapon); Ex

parte Empey, 757 S.W.2d 771, 774 (Tex.Crim.App. 1988)(holding that an affirmative deadly

weapon finding arose as a matter of law when indictment charged use of a deadly weapon and trial

court found defendant guilty as alleged in indictment); Marshall, 860 S.W.2d at 143 (holding no

express finding was required when, by properly admonishing defendant and accepting his guilty

plea “to indictment” that charged him with using a deadly weapon, trial court necessarily found

defendant used a deadly weapon). Thus, under the circumstances here, the trial court was not

required to make a separate, express finding--oral or otherwise--that Samarripas used a deadly

weapon. See Huskins, 176 S.W.3d at 821; Empey, 757 S.W.2d at 774; Marshall, 860 S.W.2d at

143.

3 Appellant’s issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

January 31, 2014 YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)