Castillo, William v. State ( 2004 )

Affirmed and Memorandum Opinion filed March 11, 2004

Affirmed and Memorandum Opinion filed March 11, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00518-CR

____________

WILLIAM CASTILLO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 02CR2506

M E M O R A N D U M   O P I N I O N

A jury found appellant guilty of aggravated robbery and assessed punishment at seven years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In a single issue, appellant contends that the court erred in entering an affirmative finding of the use or exhibition of a deadly weapon without the submission of a special issue.  We affirm.

FACTUAL BACKGROUND

On October 22, 2002, a car pulled in front of the complainant as he walked home from work. A passenger exited the car, pointed a gun at the complainant, and demanded all of the complainant=s money.  The complainant gave the robber his money and was allowed to leave.  The complainant then called the police.

Later that night, the police arrested appellant and two others.  The complainant identified appellant as the robber.

ANALYSIS

In his issue, appellant contends that the trial court erred in entering an affirmative finding of the use or exhibition of a deadly weapon.  The jury charge on guilt contained an instruction on the law of parties, but there was no special issue regarding appellant=s knowledge as to whether a deadly weapon would be used or exhibited during the commission of the offense.

Previously, this Court held that a trial court could not enter an affirmative deadly weapon finding if the trial court charged the jury on the law of the parties but did not submit a question asking whether the defendant knew a deadly weapon would be used or exhibited.  See Pritchett v. State, 874 S.W.2d 168, 172 (Tex. App.CHouston [14th Dist.] 1994, no pet.); Mulanax v. State, 882 S.W.2d 68, 71 (Tex. App.CHouston [14th Dist.] 1994, no pet.); Tate v. State, 939 S.W.2d 738, 753B54 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d) (holding that A[i]n order for an affirmative finding to stand on the law of the parties, there must have been a specific finding that appellant knew a deadly weapon would be used or exhibited.@). Here, appellant raises this precise issue.  However, recently, in an en banc opinion, we revisited this issue and held that a trial court may enter a deadly weapon finding if the jury, by its verdict, made the factual conclusion to support a deadly‑weapon finding.  Sarmiento v. State, 93 S.W.3d 566 (Tex. App.CHouston [14th Dist .] 2002, pet. ref=d) (en banc).^[1]

In Sarmiento, a jury convicted appellant of aggravated robbery.  See id. at 567.  The jury did not make an affirmative finding that appellant used a weapon or knew a weapon would be used.  Id.  However, we held that the jurors first had to Abelieve beyond a reasonable doubt that appellant knew a deadly weapon would be used in the commission of the offense@ before they could find the defendant guilty.  Id.  at 570; see also Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985) (holding that when an indictment specifically alleges that a defendant used a deadly weapon and the jury finds the defendant guilty of the crime, the jury has made a de facto finding that the defendant used or exhibited a deadly weapon in the commission of the crime).  We held, A[b]y its verdict, the jury necessarily made the factual finding to support the entry of an affirmative finding of the use or exhibition of a deadly weapon upon the judgment.@  Sarmiento, 93 S.W.3d at 570.

Here, as in Sarmiento, the State indicted appellant for aggravated robbery. The State did not present the jury with the specific question whether appellant used or knew that a deadly weapon would be used.  Nonetheless, the jury through its verdict, found that appellant used or knew a deadly weapon would be used when committing the crimes.  The trial court did not err when it entered an affirmative deadly weapon finding in the judgment, and we overrule appellant=s first issue.

We affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed March 11, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  In that opinion, we also overruled Pritchett, Mulanax, and Tate to the extent that those opinions contradicted Sarmiento.  See Sarmiento, 93 S.W.3d at 570.  Appellant relies upon Pritchett and Tate extensively for his argument.