Ulric Hicks v. State

Ulric Hicks v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-98-050-CR

     ULRIC HICKS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 96-691-C

MEMORANDUM OPINION

      A jury convicted Appellant Ulric Hicks as a party to the commission of an aggravated robbery. See Tex. Pen. Code Ann. §§ 7.01, 29.03(a)(2) (Vernon 1994). The jury sentenced Hicks to five years’ imprisonment. At sentencing, the court entered a deadly weapon finding in the judgment. In a single issue, Hicks argues that the court erred in entering a deadly weapon finding in the judgment because this issue was not submitted to the jury for an affirmative finding.

      The indictment alleges that during the robbery Hicks “did then and there use and exhibit a deadly weapon, to-wit: a handgun.” The evidence at trial reveals that Hicks’s co-defendant Jason Bonner held a gun to the victim’s head while Hicks searched his pockets for money. The record contains no evidence that Hicks himself used or exhibited a weapon. The court did not submit a deadly weapon issue to the jury.

      The State concedes in its brief that the court erred in entering the deadly weapon finding but argues that the error is harmless because aggravated robbery is a “3g” offense. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(F) (Vernon Supp. 1999). Section 3g applies not only to the felonies enumerated in section 3g(a)(1) such as aggravated robbery but also to any felony in which the jury returns an affirmative deadly weapon finding. Id. art. 42.12, § 3g(a)(2).

      Section 508.145 of the Government Code provides that if a defendant has been convicted of an offense listed in section 3g(a)(1) (other than capital murder) or if a jury has returned an affirmative deadly weapon finding under section 3g(a)(2) the defendant must serve the lesser of 30 calendar years or one-half of his sentence before he will become eligible for parole. See Tex. Gov’t Code Ann. § 508.145 (Vernon 1998). Thus, the State argues the error is harmless because regardless of whether a deadly weapon finding was made, Hicks must serve one-half of his sentence for aggravated robbery before he will become eligible for parole.

      This Court recently rejected a similar argument. See Rachuig v. State, 972 S.W.2d 170, 179 (Tex. App.—Waco 1998, pet. ref’d). In Rachuig, we said:

We do not presume to know the effect this improper finding might have on [the defendant]’s parole eligibility under the guidelines established by the Board of Pardons and Paroles. See Tex. Gov’t Code Ann. § 508.144 (Vernon Supp. 1998). Moreover, article 37.12 requires the court to enter “the proper judgment.” Tex. Code Crim. Proc. Ann. art. 37.12 (Vernon 1981). Such a judgment must accurately recite any deadly weapon findings. Id. art. 42.01, § 1(21), art. 42.12, § 3g(a)(2) (Vernon Supp. 1998); cf. Asberry v. State, 813 S.W.2d 526, 529-31 (Tex. App.—Dallas 1991, pet. ref’d) (appellate court modified judgment to reflect jury’s deadly weapon finding which trial court had improperly failed to include in judgment).

Rachuig, 972 S.W.2d at 179. The same reasoning applies in this case. Accordingly, we sustain Hicks’s sole issue. We modify the judgment to delete the deadly weapon finding and affirm the judgment as modified.

                                                                               REX D. DAVIS

                                                                               Chief Justice

Before Chief Justice Davis

      Justice Cummings (not participating)

      and Justice Vance

Affirmed as modified

Opinion delivered and filed March 31, 1999

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