James Nathaniel Evans v. State ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-278-CR





JAMES NATHANIEL EVANS,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 41,439, HONORABLE STANTON B. PEMBERTON, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of attempted murder. Tex. Penal Code Ann. §§ 15.01 (West Supp. 1993), 19.02 (West 1989). The district court assessed punishment at imprisonment for twenty years. Appellant's only point of error is that he was not given adequate notice that the State would seek an affirmative finding that appellant was a party to the use of a deadly weapon in the commission of the offense. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp. 1993) (providing for affirmative finding if defendant was party to offense and knew that deadly weapon would be used or exhibited).

The indictment alleged that appellant "with the specific intent to commit the offense of murder did then and there intentionally and knowingly attempt to cause the death of an individual, T.W. Howard, by shooting the said T.W. Howard with a deadly weapon, to wit: a firearm." The evidence established that the victim was shot by Sean Williams with the assistance and encouragement of appellant. The district court instructed the jury on the law of parties and authorized appellant's conviction based on a finding that he was criminally responsible for Williams's conduct. Tex. Penal Code Ann. § 7.02 (West 1974). After finding appellant guilty as a party to the offense, the jury also found, in response to a special issue, that appellant knew that a firearm would be used or exhibited during the commission of the offense. Two settled principles govern our disposition of appellant's point of error. First, an allegation that the defendant attempted to cause the death of another by use of a weapon is sufficient to notify him that the nature of the weapon will be an issue at trial. Ex parte Brown, 773 S.W.2d 332 (Tex. Crim. App. 1989); Eason v. State, 768 S.W.2d 312 (Tex. Crim. App. 1989). Second, if the evidence supports an instruction on the law of parties, the court may give the instruction and authorize the defendant's conviction as a party even if there is no such allegation in the indictment. Williams v. State, 676 S.W.2d 399, 401 (Tex. Crim. App. 1984); Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978). It logically follows that when, as in this cause, the indictment alleges that the defendant attempted to kill the victim with a firearm, the defendant is on notice that the State will seek an affirmative finding that he was a party to the use or exhibition of a deadly weapon.

Appellant's reliance on Powell v. State, 808 S.W.2d 102 (Tex. App.--El Paso 1990, no pet.) is misplaced. In that case, it was held that an indictment alleging that the defendant was a party to an aggravated robbery did not support an affirmative finding that the defendant personally used or exhibited a deadly weapon. Whatever the merits of this holding under the statutes then in effect, it clearly does not apply in this cause. The point of error is overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: October 13, 1993

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