                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-18-00155-CR


PEDRO SILVA                                                            APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE

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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1486502R

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                         MEMORANDUM OPINION 1

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      A jury convicted Pedro Silva of (1) burglary of a habitation with the intent to

commit aggravated assault, a felony, see Tex. Penal Code Ann. § 30.02(d) (West

Supp. 2017); (2) engaging in organized criminal activity while committing

aggravated assault with a deadly weapon, see id. § 71.02(a) (West Supp. 2017);

and (3) unlawful possession of a firearm, see id. § 46.04(a) (West 2011). After



      1
      See Tex. R. App. P. 47.4.
finding an enhancement paragraph true, the jury assessed Silva’s punishment at

27 years’ imprisonment and no fine for the first two offenses, and at 20 years’

imprisonment and a $10,000 fine on the third. The trial court sentenced Silva in

accordance with the jury verdicts and ordered the sentences to run concurrently.

In Silva’s first point, he contends that the evidence is insufficient to support the

deadly-weapon finding in the second offense because the jury rendered

inconsistent verdicts, and in his second point, he argues that the evidence is

insufficient to support the award of court costs. We affirm.

                                      Discussion

      Because Silva’s sufficiency complaints are focused on two particular

aspects of his case, we limit our discussion to them.

Sufficient—even abundant—evidence supports the deadly-weapon finding
in count two despite the jury’s failure to make a deadly-weapon finding in
                                 count one.

      Evaluating Silva’s first point requires understanding what the State alleged

in the indictment and what the jury found—and did not find—in its verdicts. In the

first count, the State alleged that

      Pedro Silva, hereinafter called defendant, on or about the 2nd day of
      July 2016, in the county of Tarrant, State of Texas, did then and
      there intentionally or knowingly, without the effective consent of [the
      complainant], the owner thereof, enter a habitation with intent to
      commit aggravated assault,

      ....

      Deadly weapon finding notice: And it is further presented to said
      court that a deadly weapon, namely a firearm, was used or exhibited


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      during the commission of the felony offense or felony offenses set
      out above or during the immediate flight following the commission of
      the above felony offense or felony offenses and that the defendant
      used or exhibited the deadly weapon or was a party to the offense
      and knew that a deadly weapon would be used or exhibited[.]

      The jury found Silva guilty of count one but did not find, in the

accompanying special issue, that Silva used or exhibited a deadly weapon while

committing the offense. Consistent with the jury finding, the trial court did not

make a deadly-weapon finding in the judgment.

      Thereafter, in counts two and six (the State’s having waived the remaining

counts), the State alleged:

      Count two: and it is further presented in and to said court that the
      defendant in the county of Tarrant and state aforesaid on or about
      the 2nd day of July, 2016, did with the intent to establish, maintain,
      or participate as a member of a criminal street gang or in a
      combination or the profits of a combination commit the offense of
      aggravated assault, by: intentionally or knowingly threatening
      imminent bodily injury to [the complainant] and the defendant did
      use or exhibit a deadly weapon during the commission of the
      assault, namely a firearm,

      ....

      Count six: and it is further presented in and to said court that the
      defendant in the county of Tarrant and State aforesaid on or about
      the 2nd day of July 2016, did intentionally or knowingly possess a
      firearm away from the premises where the defendant lived and prior
      to said possession the defendant was convicted of a felony offense,
      in cause number F-0416030-MW, on the 20th day of December
      2005, in the 363rd Judicial District Court of Dallas County, Texas[.]

      The jury also found Silva guilty of counts two and six. In the count two

judgment, the trial court affirmatively found that Silva used a deadly weapon. See

Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009) (holding that


                                        3
verdict’s reference to indictment, which expressly alleged a deadly weapon,

constituted a finding that the allegation was true). In the count six judgment

(unlawful possession of a firearm), the trial wrote that a deadly-weapon finding

did not apply. See Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992)

(deleting deadly-weapon finding for possession-of-prohibited-weapon offense).

      In Silva’s first point, he argues that the evidence is insufficient to support

the deadly-weapon finding in count two because the jury affirmatively did not find

that he used a firearm in the special issue to count one; he argues that the

findings that he both did and did not use a firearm in the two counts on the

identical facts are inconsistent. Silva concedes there is persuasive authority

against his position but argues that the authority is not controlling. Silva contends

that the case that should control our decision is Alonzo v. State, 353 S.W.3d

778 (Tex. Crim. App. 2011).

      We disagree that Alonzo is controlling. There, the defendant was charged

with murder, and the jury charge authorized the jurors to convict him of murder or

of the lesser-included offenses of manslaughter and aggravated robbery. Id. at

779–80. The problem in Alonzo was that the charge included a self-defense

instruction for the murder offense, but the trial court said no when the jury

specifically asked that if it found the defendant not guilty of murder by reason of

self-defense whether it could consider self-defense when also deciding the

lesser-included offenses. Id. at 780. The jury proceeded to acquit the defendant

of murder, but it convicted him of manslaughter. Id. On review, the court of


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criminal appeals held that the defendant was entitled to a self-defense instruction

on the lesser-included offenses as well and remanded the case to the court of

appeals for a harm analysis. Id. at 781, 783. On remand, the court of appeals

held that the error was harmful, reversed the conviction, and remanded the case

for a new trial. Alonzo v. State, No. 13-09-00395-CR, 2012 WL 4758061, at

*6 (Tex. App.—Corpus Christi Oct. 4, 2012, no pet.) (mem. op., not designated

for publication). But the real problem in Alonzo was charge error, not inconsistent

verdicts. See Alonzo, 2012 WL 4758061, at *4. Assuming the jury in Alonzo

found the defendant not guilty of murder by reason of self-defense, it never had

the opportunity to consider self-defense when deciding the lesser-included

offenses. In contrast, Silva is not arguing charge error; rather, he is arguing

inconsistent verdicts, making Alonzo inapposite.

      The persuasive authority to which Silva refers is United States v. Powell,

469 U.S. 57, 68–69, 105 S. Ct. 471, 478–79 (1984), and Dunn v. United States,

284 U.S. 390, 393, 52 S. Ct. 189, 190 (1932), overruled on other grounds by

Sealfon v. United States, 332 U.S. 575, 68 S. Ct. 237 (1948), 2 both of which held

that the law does not bar inconsistent verdicts. In Powell, however, the Court

expressly addressed the issue not as a constitutional one but as part of its

“supervisory powers over the federal criminal process.” 469 U.S. at 65, 105 S. Ct.



      2
        Powell addresses the portion of Dunn that is no longer good law. 469 U.S.
at 64, 105 S. Ct. at 476.


                                        5
at 477. For this reason, Silva maintains that these cases are merely persuasive,

not controlling.

      Powell and Dunn have nevertheless found their way into Texas

jurisprudence. The court of criminal appeals has quoted them favorably for

precisely this proposition. See Guthrie-Nail v. State, 506 S.W.3d 1, 6 n.27 (Tex.

Crim. App. 2015). Our court, too, has relied on both Powell and Guthrie-Nail for

the proposition that the law does not bar inconsistent verdicts. See Hunsaker v.

State, No. 02-16-00331-CR, 2017 WL 4053897, at *4 n.12 (Tex. App.—Fort

Worth Sept. 14, 2017, pet. ref’d) (mem. op., not designated for publication). And

we have cited Powell favorably on another occasion. See Collins v. State,

No. 02-09-00303-CR, 2010 WL 3433281, at *4 (Tex. App.—Fort Worth Aug. 31,

2010, pet. ref’d) (mem. op., not designated for publication).

      In an earlier case out of our court, we rejected the proposition that

apparently inconsistent verdicts were fatal. See Pope v. State, No. 02-05-00378-

CR, 2007 WL 866232, at *7 (Tex. App.—Fort Worth Mar. 22, 2007 no pet.)

(mem. op., not designated for publication) (citing Ward v. State, 113 S.W.3d 518,

523 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)). In turn, Ward had relied on

Powell for that proposition. 113 S.W.3d at 522–23. So the State argues that we

effectively have adopted the Powell analysis. But Pope did not involve

irreconcilably inconsistent verdicts. There, when specifically asked, the jury did

not find that the defendant had used a “computer desk top” as a deadly weapon.

2007 WL 866232, at *7. Other evidence showed, however, that the defendant


                                         6
had used a heavy pipe as a deadly weapon, so the court held that was sufficient

to support the conviction. Id. at *6–7.

      To the extent that we have not expressly adopted Powell before, we do so

now. As the Supreme Court wrote, “Inconsistent verdicts . . . present a situation

where ‘error,’ in the sense that the jury has not followed the court’s instructions,

most certainly has occurred, but it is unclear whose ox has been gored.” Powell,

469 U.S. at 65, 105 S. Ct. at 477. The Court reasoned that it would not review

inconsistent jury verdicts because of the State’s “inability to invoke review, the

general reluctance to inquire into the workings of the jury, and the possible

exercise of lenity” by the jury. Id. at 68–69, 105 S. Ct. at 479. The Court observed

that the defendant is given the benefit of the jury’s verdict in the one count, “and

it is neither irrational nor illogical to require [him] to accept the burden” of the

jury’s verdict on the other count. See id. at 69, 105 S. Ct. at 479. “[W]e note,” the

Court added, “that a criminal defendant already is afforded protection against jury

irrationality or error by the independent review of the sufficiency of the evidence

undertaken by the trial and appellate courts. This review should not be confused

with the problems caused by inconsistent verdicts.” Id. at 67, 105 S. Ct. at 478.

      And in Silva’s case, the evidence abundantly supports the deadly-weapon

finding in count two. The complainant and a second witness testified that they

saw Silva fire a gun inside the house. The complainant testified that Silva pointed

the gun at him, that he felt threatened by Silva’s use of the gun, and that he was

scared that Silva intended to cause him imminent bodily harm. In addition to the


                                          7
complainant, Silva threatened numerous other people in the house with the

gun—namely, the complainant’s brothers and his mother.

      Silva even pointed the gun at and threatened the complainant’s two-week-

old puppy.

      When the police arrested Silva in the complainant’s kitchen, they found a

small-caliber handgun in Silva’s front pants pocket. Viewing the evidence in the

light most favorable to the verdict, a rational factfinder could have easily found

that Silva used a deadly weapon beyond a reasonable doubt. 3 See Jenkins v.

State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).

                        After record supplementation,
             the evidence supports the assessment of court costs.

      In Silva’s second point, he contends that the evidence is insufficient to

support the judgment’s assessed court costs. He notes that the clerk’s record

does not contain a bill of costs and concludes that, without one, there is no

evidence supporting the trial court’s judgment.

      In response, the State notes that a supplemental clerk’s record containing

the bill of costs was filed and that the amount therein matches the judgment

amount. “[A] bill of costs is a relevant item that[,] if omitted from the record, can

be prepared and added to the record via a supplemental clerk’s record.” Johnson

      3
       In Silva’s case, the ox getting gored was the State’s, when the jury
declined to find that Silva brandished a deadly weapon in connection with count
one. Still, Silva’s windfall in that regard may be nonexistent: the jury assessed
identical 27-year sentences on both the first and second counts, and the trial
court ordered them to run concurrently.


                                         8
v. State, 423 S.W.3d 385, 392 (Tex. Crim. App. 2014). Once the bill of costs is

properly added to the appellate record, the appellate court must consider it. Id. at

394.

       We hold that the bill of costs in the supplemental clerk’s record supports

the judgment and thus that the evidence is sufficient. See id. at 396. We overrule

Silva’s second point.

                                    Conclusion

       Having overruled both points, we affirm the trial court’s judgments.


                                                   PER CURIAM

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 14, 2018




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