                                  NO. 07-08-0223-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                OCTOBER 29, 2009
                         ______________________________

                               JULIAN J. GUERRERO,

                                                             Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

         NO. 2005-410,180; HON. BRADLEY S. UNDERWOOD, PRESIDING
                      _______________________________

                                    Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      The case before us involves the effect that the absence of an affirmative deadly

weapon finding in the judgment has upon a conviction for an offense wherein the use of

a deadly weapon is an element of the offense. According to appellant, Julian J. Guerrero,

that circumstance rendered void the punishment assessed upon his being found guilty of

aggravated assault. We overrule the contention.
       The State alleged, via its indictment, that appellant “did then and there intentionally

and knowingly threaten Frances Cervantez with imminent bodily injury and did then and

there use a deadly weapon, to wit: a knife, that in the manner of its use and intended use

was capable of causing death and serious bodily injury.” Appellant opted to plead guilty

to the charge in effort to have the adjudication of his guilt deferred and receive community

supervision. This desire also resulted in his execution of a written judicial confession

wherein he stated that he understood the allegations in the indictment and “confess[ed]

that they [were] true.” Thereafter, the trial court deferred his adjudication of guilt and found

in its order that appellant “in open court, in person, pleaded guilty to the charge contained

in the indictment” and that the evidence “substantiates the [appellant’s] guilt of the offense

of Aggravated Assault, a 2nd degree felony . . . .” (Emphasis in original).

       Eventually, appellant became the subject of a motion to have his guilt adjudicated.

The trial court convened a hearing, received evidence and argument, and adjudicated

appellant “guilty of the offense of aggravated assault, a second degree felony . . . .” When

it came time to levy sentence, it said the following:

       . . . sentencing is probably the most difficult thing any Judge does. And in
       your case, it’s particularly difficult . . . . I gave you an opportunity to show all
       of us that you were different now, that you did understand the gravity of the
       situation, that you did understand the possible consequences . . . and you
       didn’t do too good. I totally don’t understand. That’s just hard for me to
       fathom that someone facing 20 years in the penitentiary would continue to
       use drugs . . . [w]hen I’m faced with this decision, I try to figure out in my
       mind who I’m dealing with. Am I dealing with a criminal who has a drug
       problem or . . . an addict who is committing crimes for feeding the habit or
       whatever? And in your case, I think you’re a criminal. Based on everything
       that I’ve heard, I think you’re a criminal. I don’t think you are a drug addict
       who is committing crimes just because you have a drug problem. I heard no
       evidence that this case was in any way drug-related, that you threatened
       someone with a knife, a deadly weapon. So I’m left with the decision that
       you’re a criminal; and therefore, you need to be punished as a criminal . . . .

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(Emphasis added). Thereafter, appellant received a ten-year sentence. The ensuing

judgment executed by the trial court reiterated the offense for which appellant was

convicted as “Aggravated Assault,” a “2nd Degree Felony.” However, in the space labeled

“Findings on Deadly Weapon,” there appeared the letters “NA,” which we interpret to mean

“not applicable.” The latter notation coupled with the passage we italicized above serve

as the basis for appellant’s argument. According to him, they indicate that the trial court

did not find that he used a deadly weapon. Thus, he could be guilty of only “misdemeanor

assault by threat.” We disagree.

       Omitting to expressly find in the judgment that a deadly weapon was used or

exhibited during the crime’s commission does not necessarily mean that appellant was not

found guilty of the charge as asserted in the indictment. Indeed, we know of no cases

requiring the written judgment to affirmatively state that a deadly weapon was used before

one can be lawfully convicted of an offense wherein the use of a deadly weapon

constituted an element of the crime. One’s guilt for a crime requiring the use or exhibition

of a deadly weapon is not nullified simply because a deadly weapon finding was left out

of the judgment. Indeed, the court in De Leon v. State, 865 S.W.2d 139 (Tex. App.–

Corpus Christi 1993, no pet.) held as much. There, De Leon was charged and convicted

of aggravated assault with a deadly weapon. Furthermore, the deadly weapon in question

was allegedly a knife capable of causing serious injury. After finding appellant guilty “as

charged in the indictment,” the trial court entered no affirmative finding on its written

judgment indicating that a deadly weapon was used or exhibited. Id. at 141. So, like the

appellant here, De Leon also argued that he could not be guilty for aggravated assault.

The appellate panel disagreed. In determining whether appellant was guilty of aggravated

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assault, the trial court “impliedly” found that a deadly weapon was used or exhibited,

according to the panel. Id. Consequently, omitting the finding from the judgment did not

negate his guilt for aggravated assault. Id.

       Though the trial court at bar did not state that it found appellant guilty “as charged

in the indictment,” it nonetheless found appellant guilty of “aggravated assault,” a “2nd

Degree Felony” and said so.       Prior to that and when deferring the adjudication of

appellant’s guilt, it also had found not only that appellant pled guilty “to the charge

contained in the indictment” but also that the evidence “substantiate[d] the [appellant’s]

guilt of the offense of Aggravated Assault, a 2nd degree felony.” (Emphasis in original).

And, again, the indictment at bar referred to the use or exhibition of a deadly weapon. So

too did the trial judge sign the waiver and confession form which was attached to a copy

of the indictment and wherein appellant said he understood “the foregoing allegations” and

“confess[ed]” that they were “true.” Thus, by the time the trial court held appellant guilty

of “aggravated assault,” it had accepted appellant’s plea and confession to aggravated

assault as that crime was described in the indictment.

       More importantly, we note that there were and are only two ways to commit

aggravated assault. One involves the commission of an assault that caused serious bodily

injury, TEX . PENAL CODE ANN . §22.02(a)(1) (Vernon Supp. 2009), while the other requires

the use or exhibition of a deadly weapon while committing assault. Id. §22.02(a)(2). The

indictment at bar said nothing about an assault that caused serious bodily injury but rather

described an assault coupled with the use and exhibition of a deadly weapon. So, there

was only one way that the trial court could have intended to convict appellant of



                                               4
“aggravated assault” based upon his confession and guilty plea and that was if it impliedly

found that he used or exhibited a deadly weapon while assaulting Frances Cervantez.1

        In short, finding that appellant used or exhibited a deadly weapon for purposes of

establishing his guilt for aggravated assault was and is implicit in the trial court’s oral

pronouncement. And, the omission of a like finding from the written judgment did not affect

appellant’s conviction for that crime. See De Leon v. State, supra. Thus, sentencing

appellant for aggravated assault, as opposed to simple assault, was not a void act.

        As for the State’s request to modify the judgment to affirmatively reflect that the

crime involved a deadly weapon, we say the following. The purpose of the deadly weapon

finding is to assist in calculating a prisoner’s parole eligibility date. Kinkaid v. State, 184

S.W.3d 929, 930 (Tex. App.–Waco 2006, no pet.). Yet, such a finding would prevent a trial

court from opting to defer the adjudication of guilt, id.; Sampson v. State, 983 S.W.2d 842,

843 (Tex. App.–Houston [1st Dist.] 1998, pet. ref’d), or otherwise grant community

supervision. TEX . CODE CRIM . PROC . ANN . 42.12, §3g(a)(2) (Vernon Supp. 2009). It is also

clear that where the trial court is the trier of fact, it has the discretion to withhold entry of

a deadly weapon finding from its judgment. Johnson v. State, 233 S.W.3d 420, 425 (Tex.

App.–Fort Worth 2007, pet. ref’d); Dickson v. State, 988 S.W.2d 261, 263 (Tex. App.–


        1
           Incidentally, we do not read the trial court’s reference about no evidence of the crim e being drug
related or “that you threatened som eone with a knife” to necessarily m ean it thought no deadly weapon was
used. Read in context, the trial court was attem pting to determ ine how to treat appellant. W as he a drug
addict engaging in crim inal activity to obtain drugs or sim ply a crim inal that also had a drug problem ? Clearly,
the punishm ent to levy could be affected by the court’s perception of appellant. Ultim ately, it viewed appellant
as a crim inal because it “heard no evidence that [the assault] was in any way drug-related’‘ and because what
it did hear was “that you [appellant] threatened som eone with a knife, a deadly weapon.” In other words, the
trial court was attem pting to explain what it heard, i.e. it heard nothing about drugs but rather that appellant
was using a deadly weapon to threaten others. This seem s the m ore reasonable interpretation of the passage
given appellant’s confession to assaulting Cervantez with a deadly weapon and the trial court’s recognition
that he plead guilty to the crim e “as charged in the indictm ent.”

                                                         5
Texarkana 1998, pet. ref’d). This is of import because the trial court at bar initially deferred

the adjudication of appellant’s guilt.     So too did it initially place him on community

supervision. From this, one could reasonably deduce that it initially intended to withhold

entry of an affirmative finding relating to the use of a deadly weapon. And, it had the

discretion to retain such intent while assessing punishment after adjudicating him guilty of

the crime. So, the trial court’s inscribing “NA” in the judgment under the label “Findings on

Deadly Weapon” may not have been a mere clerical error, as suggested by the State. It

may well have been the exercise of legitimate judicial discretion, which, in turn, prevents

us from modifying the document to include a deadly weapon finding. See Johnson v.

State, 233 S.W.3d at 428 (stating that the finding of “NONE” regarding the affirmative

deadly weapon finding was an express statement that no such finding was made within the

trial court’s discretion and judicial reasoning).

       Accordingly, we affirm the judgment as written.



                                                    Brian Quinn
                                                    Chief Justice

Publish.




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