COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-294-CR
ROBERT VESHONE MONROE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
MEMORANDUM OPINION 1
I. Introduction
In three issues, Appellant Robert Veshone Monroe contends that (1) the
State did not present legally sufficient evidence to sustain an affirmative deadly
weapon finding, (2) an egregious error occurred when the jury was allowed to
make an affirmative deadly weapon finding, and (3) the State should have been
1 … See T EX. R. A PP. P. 47.4. judicially estopped from seeking an affirmative deadly weapon finding. We
affirm.
II. Factual and Procedural Background
The original indictment charged Monroe with aggravated robbery, alleging
that during the incident he used or exhibited a “deadly weapon, to wit: a
firearm.” At a pretrial hearing, the parties reached an agreement regarding the
wording of the indictment. The exchange between Mr. Gillespie, the
prosecutor, and Mr. Valverde, Monroe’s counsel, was as follows:
[Mr. Gillespie]: . . . It will be my intention in just a moment to abandon the language at the very end of the indictment, “and the Defendant did then and there use and exhibit a deadly weapon, to wit, a firearm.” But the agreement that I have with the defense is -- and the Defendant is that by abandoning that it becomes a robbery. The Defendant is singly enhancable so he’d be looking at a first degree range of punishment. And I just -- the agreement with the defense is that if I abandon that, they’re going to put on the record that they’ve had sufficient notice that I intend to prove that the BB gun used in the case is a deadly weapon and seek an affirmative finding from the jury, and that they’re not going to object that they didn’t have sufficient notice since it’s a BB gun and not a firearm. And that’s what the evidence shows.
....
[Mr. Valverde]: . . . I’ve had the opportunity to speak with Mr. Monroe regarding his rights anytime the district attorney wants to amend an indictment. And he indicates to me he clearly understood that. And he’s in agreement that the State can amend their indictment, and we waive our ten days’ notice and proceed today with the amended indictment.
2 ....
[Mr. Gillespie]: And just so we’re clear, I mean, this is an abandonment, it’s not an amendment.
[Mr. Gillespie]: But what our agreement also is that they’re not going to object to improper notice on the deadly weapon finding because it’s a BB gun, it’s not a firearm.
[The Court]: Is that also correct . . . ?
[Mr. Valverde]: Just for clarification, Your Honor, we are agreeing that we’re waiving any notice on that, but we’re not stipulating to that element. [Emphasis supplied.]
Subsequently, the parties reduced their agreement to writing. The agreement’s
first two paragraphs identify the parties and their consent while the third and
fourth paragraphs state as follows:
3. The parties agree that the prosecuting attorney . . . will abandon the phrase “and the defendant did then and there use and exhibit a deadly weapon, to-wit: a firearm” and proceed on the lesser included second degree felony of robbery with a single enhancement that, if proven, would make the range of punishment that for a first degree felony.
4. In addition, the prosecuting attorney has notified the defense of his intent to prove that the BB gun found on the defendant was a deadly weapon. The defense attorney and defendant agree that they have been given sufficient notice of the State’s intent to prove that the BB gun was a deadly weapon and to seek an affirmative deadly weapon finding from the jury. The defense and defendant agree not to object to the
3 deadly weapon submission based on lack of notice. [Emphasis supplied.]
The trial court approved the agreement and accordingly physically altered the
indictment to strike out the deadly weapon language, so that it read, in part,
thusly:
Robert Veshone Monroe . . . did then and there unlawfully, intentionally, or knowingly, while in the course of committing theft of property of cash and drugs and with intent to obtain and maintain control of said property, threaten and place Nalini Patel in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to wit: a firearm.
The charge to the jury, which Monroe objects to in this regard, allowed
the jury to convict Monroe of robbery, but it also instructed the jury that “[i]f
you find [Monroe] . . . guilty of robbery, then you must determine whether
[Monroe] used a deadly weapon in the commission of the offense.” The jury
convicted Monroe of robbery and determined that he used or exhibited a deadly
weapon during the commission of the offense. Monroe concedes that, if
relevant, the evidence presented by the State on the deadly weapon issue
would have been sufficient to sustain the finding.
The trial court assessed Monroe’s punishment at thirty-five years’
imprisonment in the TDCJ-ID and sentenced him accordingly. This appeal
followed.
4 III. Abandonment
In his first issue, Monroe argues that by abandoning the deadly weapon
portion of the indictment, the State waived its right to seek a deadly weapon
finding, thus, the State did not present legally sufficient evidence to sustain the
affirmative deadly weapon finding because all the evidence it presented was no
longer not relevant.
Apparently the State was concerned that the “firearm” referred to in the
indictment was in actuality a BB gun, which can be a deadly weapon, but which
may or may not be a “firearm.” See Adame v. State, 69 S.W.3d 581, 582
(Tex. Crim. App. 2002); Mosley v. State, 545 S.W .2d 144, 145 (Tex. Crim.
App. 1976); Brown v. State, No. 11-97-00033-CR, 1999 WL 33743888, *2
(Tex. App.—Eastland Jan. 21, 1999, no pet.) (not designated for publication).
The State was apparently further concerned that by only dropping the phrase
“a firearm” and leaving the language regarding a deadly weapon in the
indictment, that the restrictive provisions of article 28.10 of the Texas Code of
Criminal Procedure would have been implicated, necessitating a postponement
of the trial. T EX. C ODE C RIM. P ROC . A NN . art. 28.10(a) (Vernon Supp. 2008).
Much ink is spilled by the State and Monroe over the accuracy of the State’s
concern. However, this accuracy, or inaccuracy, is of no moment because we
are concerned with what occurred, not why it occurred. The State argues, and
5 Monroe agrees, that a deadly weapon allegation need not be contained in the
indictment in order for the jury to make a deadly weapon finding. See Brooks
v. State, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993). Further, Monroe does
not contest the obvious—that he was aware that the State would seek a deadly
weapon finding from the jury. He simply argues that the State waived its right
to this finding regardless of the fact that not only did their agreement allow for
the finding, but there was no objection to the charge to the jury in this regard.
This is buyer’s remorse. If Monroe wanted to object to the jury being allowed
to make a finding, which the law did not require to be contained in the
indictment, then he should not have agreed to allow the jury to make the
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-294-CR
ROBERT VESHONE MONROE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
MEMORANDUM OPINION 1
I. Introduction
In three issues, Appellant Robert Veshone Monroe contends that (1) the
State did not present legally sufficient evidence to sustain an affirmative deadly
weapon finding, (2) an egregious error occurred when the jury was allowed to
make an affirmative deadly weapon finding, and (3) the State should have been
1 … See T EX. R. A PP. P. 47.4. judicially estopped from seeking an affirmative deadly weapon finding. We
affirm.
II. Factual and Procedural Background
The original indictment charged Monroe with aggravated robbery, alleging
that during the incident he used or exhibited a “deadly weapon, to wit: a
firearm.” At a pretrial hearing, the parties reached an agreement regarding the
wording of the indictment. The exchange between Mr. Gillespie, the
prosecutor, and Mr. Valverde, Monroe’s counsel, was as follows:
[Mr. Gillespie]: . . . It will be my intention in just a moment to abandon the language at the very end of the indictment, “and the Defendant did then and there use and exhibit a deadly weapon, to wit, a firearm.” But the agreement that I have with the defense is -- and the Defendant is that by abandoning that it becomes a robbery. The Defendant is singly enhancable so he’d be looking at a first degree range of punishment. And I just -- the agreement with the defense is that if I abandon that, they’re going to put on the record that they’ve had sufficient notice that I intend to prove that the BB gun used in the case is a deadly weapon and seek an affirmative finding from the jury, and that they’re not going to object that they didn’t have sufficient notice since it’s a BB gun and not a firearm. And that’s what the evidence shows.
....
[Mr. Valverde]: . . . I’ve had the opportunity to speak with Mr. Monroe regarding his rights anytime the district attorney wants to amend an indictment. And he indicates to me he clearly understood that. And he’s in agreement that the State can amend their indictment, and we waive our ten days’ notice and proceed today with the amended indictment.
2 ....
[Mr. Gillespie]: And just so we’re clear, I mean, this is an abandonment, it’s not an amendment.
[Mr. Gillespie]: But what our agreement also is that they’re not going to object to improper notice on the deadly weapon finding because it’s a BB gun, it’s not a firearm.
[The Court]: Is that also correct . . . ?
[Mr. Valverde]: Just for clarification, Your Honor, we are agreeing that we’re waiving any notice on that, but we’re not stipulating to that element. [Emphasis supplied.]
Subsequently, the parties reduced their agreement to writing. The agreement’s
first two paragraphs identify the parties and their consent while the third and
fourth paragraphs state as follows:
3. The parties agree that the prosecuting attorney . . . will abandon the phrase “and the defendant did then and there use and exhibit a deadly weapon, to-wit: a firearm” and proceed on the lesser included second degree felony of robbery with a single enhancement that, if proven, would make the range of punishment that for a first degree felony.
4. In addition, the prosecuting attorney has notified the defense of his intent to prove that the BB gun found on the defendant was a deadly weapon. The defense attorney and defendant agree that they have been given sufficient notice of the State’s intent to prove that the BB gun was a deadly weapon and to seek an affirmative deadly weapon finding from the jury. The defense and defendant agree not to object to the
3 deadly weapon submission based on lack of notice. [Emphasis supplied.]
The trial court approved the agreement and accordingly physically altered the
indictment to strike out the deadly weapon language, so that it read, in part,
thusly:
Robert Veshone Monroe . . . did then and there unlawfully, intentionally, or knowingly, while in the course of committing theft of property of cash and drugs and with intent to obtain and maintain control of said property, threaten and place Nalini Patel in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to wit: a firearm.
The charge to the jury, which Monroe objects to in this regard, allowed
the jury to convict Monroe of robbery, but it also instructed the jury that “[i]f
you find [Monroe] . . . guilty of robbery, then you must determine whether
[Monroe] used a deadly weapon in the commission of the offense.” The jury
convicted Monroe of robbery and determined that he used or exhibited a deadly
weapon during the commission of the offense. Monroe concedes that, if
relevant, the evidence presented by the State on the deadly weapon issue
would have been sufficient to sustain the finding.
The trial court assessed Monroe’s punishment at thirty-five years’
imprisonment in the TDCJ-ID and sentenced him accordingly. This appeal
followed.
4 III. Abandonment
In his first issue, Monroe argues that by abandoning the deadly weapon
portion of the indictment, the State waived its right to seek a deadly weapon
finding, thus, the State did not present legally sufficient evidence to sustain the
affirmative deadly weapon finding because all the evidence it presented was no
longer not relevant.
Apparently the State was concerned that the “firearm” referred to in the
indictment was in actuality a BB gun, which can be a deadly weapon, but which
may or may not be a “firearm.” See Adame v. State, 69 S.W.3d 581, 582
(Tex. Crim. App. 2002); Mosley v. State, 545 S.W .2d 144, 145 (Tex. Crim.
App. 1976); Brown v. State, No. 11-97-00033-CR, 1999 WL 33743888, *2
(Tex. App.—Eastland Jan. 21, 1999, no pet.) (not designated for publication).
The State was apparently further concerned that by only dropping the phrase
“a firearm” and leaving the language regarding a deadly weapon in the
indictment, that the restrictive provisions of article 28.10 of the Texas Code of
Criminal Procedure would have been implicated, necessitating a postponement
of the trial. T EX. C ODE C RIM. P ROC . A NN . art. 28.10(a) (Vernon Supp. 2008).
Much ink is spilled by the State and Monroe over the accuracy of the State’s
concern. However, this accuracy, or inaccuracy, is of no moment because we
are concerned with what occurred, not why it occurred. The State argues, and
5 Monroe agrees, that a deadly weapon allegation need not be contained in the
indictment in order for the jury to make a deadly weapon finding. See Brooks
v. State, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993). Further, Monroe does
not contest the obvious—that he was aware that the State would seek a deadly
weapon finding from the jury. He simply argues that the State waived its right
to this finding regardless of the fact that not only did their agreement allow for
the finding, but there was no objection to the charge to the jury in this regard.
This is buyer’s remorse. If Monroe wanted to object to the jury being allowed
to make a finding, which the law did not require to be contained in the
indictment, then he should not have agreed to allow the jury to make the
finding and should have objected to the charge allowing it to do so.
Monroe argues that contract principles are applicable in this situation and
apply in general in criminal cases. See Ex parte Moussazadeh, 64 S.W.3d 404,
411 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 813 (2002). He argues
that the agreement to abandon the deadly weapon finding in paragraph three
of the parties’ agreement is not reconcilable with the subsequently-articulated
intention to seek a deadly weapon finding from the jury. He then argues that
under this situation “the provision which appears first controls.” Silver Spur
Addition Homeowners v. Clarksville Seniors Apartments, 848 S.W.2d 772, 775
(Tex. App.—Texarkana 1993, writ denied). This argument however is based
6 on a false premise. It is fundamental contract law in Texas that no single
contract provision taken alone will be given controlling effect, but rather, all
provisions must be considered in reference to the whole instrument. Seagull
Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006).
When interpretating contractual language, we examine the writing as a whole
to harmonize and give effect to all provisions so that none will be rendered
without meaning. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662
(Tex. 2005). The intent of the parties in drafting contractual language will be
determined from a single paragraph only if it appears that the paragraph alone
touches on one matter and other provisions touch on other matters. Monesson
v. Champion Int’l Corp., Dell-Mar Div., 546 S.W.2d 631, 636 (Tex. Civ.
App.—Tyler 1976, writ ref’d n.r.e.).
That being said, we hold that because the law allows a deadly weapon
finding by the jury even when a deadly weapon allegation is not contained in
the indictment, the intent of the parties as manifested in paragraphs three and
four is that the abandonment of the “use and exhibit a deadly weapon, to wit:
a firearm language” is not inconsistent with the agreed-to notice that the State
would seek a deadly weapon finding from the jury.
Because of our holding, as to the parties’ intent, we further hold that the
evidence presented to the jury regarding the use of the BB gun as a deadly
7 weapon was, in fact, relevant and sufficient by Monroe’s own admission.
Monroe’s first issue is overruled.
IV. Egregious Harm
In his second issue, Monroe argues that the trial court’s allowing the jury
to make an affirmative deadly weapon finding requires reversal because
although he did not object to the jury charge, the trial court’s error in allowing
the jury to make this determination was egregious error. This is so, he asserts,
because it deprived him of a valuable right, “that of being free of a deadly
weapon finding.”
However, he did not have a right to be “free of a deadly weapon finding.”
We have already held that a deadly weapon finding is allowed to be made by
the jury even when a deadly weapon allegation is not contained in the
indictment and that he had contractually agreed to this jury determination. We
necessary reject Monroe’s argument and overrule his second issue.
V. Judicial Estoppel
In his third issue, Monroe argues that the State should have been
judicially estopped from seeking an affirmative deadly weapon finding because,
he again argues, abandoning the deadly weapon portion of the indictment,
pursuant to paragraph three of the agreement, is inconsistent with allowing the
8 jury to make a deadly weapon finding as provided in paragraph four of the
agreement.
Yet again, we have held for reasons previously articulated that there is no
inconsistency present and, as justice and sound public policy are the basis for
judicial estoppel, Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956), which
precludes a party from taking inconsistent positions in judicial proceedings,
judicial estoppel is inapplicable and Monroe’s third issue is overruled.
VI. Conclusion
Having overruled Monroe’s issues, we affirm the judgment of the trial
court.
BOB MCCOY JUSTICE
PANEL B: DAUPHINOT, HOLMAN, and MCCOY, JJ.
DO NOT PUBLISH T EX. R. A PP. P. 47.2(b)
DELIVERED: April 3, 2008