Gooden v. State , 1985 Tex. App. LEXIS 7105 ( 1985 )

OPINION

ROBERTSON, Justice.

Appellant pled nolo contendere to the offense of burglary of a habitation, and the jury assessed punishment at seven years confinement. The sole issue on appeal concerns the trial court’s submission of an issue to the jury concerning the use of a deadly weapon in the commission of the offense. We affirm.

The indictment did not allege the use of a deadly weapon. However, the evidence clearly showed that both appellant and his co-defendant were armed and, in fact, fired shots at the two sons of the complainant who arrived at the home during the burglary. Appellant asserts that since the indictment failed to allege the use or exhibition of a deadly weapon, the jury should not have been charged on the issue. Appellant relies upon Ex parte Nino, 659 S.W.2d 436 (Tex.Crim.1983) and Ex parte Thomas, 638 S.W.2d 905 (Tex.Crim.1982) as support for his contention that we should reform the judgment and delete the unauthorized finding. We do not agree.

The instant case is remarkably similar to Davis v. State, 684 S.W.2d 201, 207 (Tex.App.—Houston [1st Dist.] 1984, pet. granted). In both this case and in Davis, the appellant was indicted for burglary and the indictment did not allege the use or exhibition of a deadly weapon. However, in both cases, the jury was charged on the issue and the Davis court held that the failure to allege the use or exhibition of a deadly weapon in an indictment did not preclude the jury from being charged on the issue. We agree with that holding. Appellant’s ground of error is overruled.

The trial court is affirmed.