                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-17-00063-CR


                           RUBEN ISREAL SANCHEZ, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 181st District Court
                                      Randall County, Texas
                  Trial Court No. 26,092-B, Honorable John B. Board, Presiding

                                           July 17, 2018

                                MEMORANDUM OPINION
                       Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       Appellant, Ruben Isreal Sanchez, was convicted of the offense of aggravated

assault with a deadly weapon and assessed a sentence of life imprisonment.1 On appeal,

appellant raises four issues, all related to the deadly-weapon finding. We will affirm.




       1   See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
                                        Background


       In July 2015, two teenagers met to fight in an elementary school parking lot.

Several adults came to observe the fight and, after it began, some of them joined the fray.

Appellant was among them. During the commotion, appellant pulled out a knife and

stabbed a fifteen-year-old boy in the back.


       Appellant was indicted for aggravated assault with a deadly weapon.              The

indictment alleged that appellant did “intentionally, knowingly, or recklessly cause bodily

injury to [I. R.] by stabbing him with a knife, and the defendant did then and there use or

exhibit a deadly weapon, to-wit: a knife . . . .” On February 8, 2017, a jury found appellant

guilty of the offense as alleged in the indictment.


       Appellant elected for the trial court to impose punishment, and the punishment

phase began the following day. The trial judge began by reciting that the jury had found

appellant “guilty of the offense of aggravated assault with a deadly weapon as alleged in

the indictment.” Appellant then pleaded “true” to an enhancement paragraph alleging a

prior aggravated assault with a deadly weapon. At sentencing, the trial judge stated that

he accepted the jury’s verdict of guilty and followed by, “I do find that a deadly weapon

was used in the commission of that crime and I also accept his plea of true to the

enhancement paragraph.” He then addressed appellant at length, ending with, “And so

all those things considered, having found you guilty, having found the enhancement to be

true, having found that a deadly weapon was used in the commission of the crime, I’ll

sentence you to life in prison.”




                                              2
       The proceedings concluded on February 9, and appellant’s sentence was

imposed, and judgment was signed and entered, on that same day.


                                          Analysis


       In appellant’s first of four issues, he contends that “no complete certainty is

possible regarding the trial court’s making or not making a deadly-weapon finding,”

requiring a remand to determine whether the trial judge actually made such a finding.

Well-settled case law requires that, “[f]or a trial court to enter a deadly-weapon finding in

the judgment, the trier of fact must first make an ‘affirmative finding’ to that effect.” Duran

v. State, 492 S.W.3d 741, 746 (Tex. Crim. App. 2016). Appellant’s argument is premised

on the notion that “the trial court did not make clear at sentencing that it would make a

deadly-weapon finding.” According to appellant, since factfinders have discretion to

decline to make a deadly-weapon finding, even when it is a necessary element of the

charged offense for which the defendant has been found guilty, the alleged lack of clarity

on the part of the trial court leaves him uncertain of whether an affirmative finding was

made. He argues that he is in the same position as the defendant in Guthrie-Nail v. State,

506 S.W.3d 1 (Tex. Crim. App. 2015), in that he had no chance to make any objections

or request a hearing and, consequently, remand is necessary.


       In our view, appellant’s situation is distinguishable from Guthrie-Nail. In that case,

the defendant’s plea papers did not mention a deadly weapon finding, the trial judge did

not orally refer to any such finding, and the written judgment said “N/A” under the section

titled “Findings on Deadly Weapon.” Guthrie-Nail, 506 S.W.3d at 3. Then, more than two

months later, the trial court entered a nunc pro tunc judgment adding the deadly-weapon



                                              3
finding, without notice to the defendant. Id. The Court of Criminal Appeals held that,

since the record did not conclusively establish that a deadly-weapon finding was made at

or before the time the judgment was signed, remand was necessary. Id. at 7.


       In contrast, the present case reflects no such inconsistency or uncertainty. Here,

the indictment alleged that appellant committed aggravated assault with a deadly

weapon. When the jury found that appellant was guilty of the offense “as alleged in the

indictment,” the trial court had an adequate basis for entering the finding in the judgment.

Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985) (“[I]f the indictment by

allegation specifically places the issue before the trier of fact . . ., then an affirmative

finding is de facto made when the defendant is found guilty ‘as charged in the

indictment.’”). In addition, the trial judge orally confirmed the deadly-weapon finding (“I

do find that a deadly weapon was used”). Immediately prior to imposing the sentence,

he again affirmed the finding (“having found that a deadly weapon was used”). His

affirmative finding was borne out in the judgment, which he signed the same day (“The

Court FINDS Defendant used or exhibited a deadly weapon, namely, a knife, during the

commission of a felony offense . . .”).


       The record before us reflects no irregularity among the indictment, the jury’s

verdict, the judge’s oral pronouncement, and the judgment. Since nothing indicates that

the trial judge declined to make an affirmative finding of a deadly weapon, a remand for

clarification is unnecessary. Therefore, we overrule appellant’s first issue.


       By his second issue, appellant submits that the law on making a deadly-weapon

finding is unconstitutionally vague as applied to defendants in his position. By his third



                                             4
and fourth issues, appellant argues that disadvantaging one defendant by making a

deadly-weapon finding, while another defendant in similar circumstances is not so

disadvantaged, is a denial of equal protection under the U.S. and Texas Constitutions.


       The State urges that these issues have not been preserved for our review. To

preserve an issue for appellate review, the record must show: (1) a timely and specific

request, objection, or motion bringing the issue to the trial court’s attention; and (2) the

trial court’s ruling on the request, objection, or motion, or the trial court’s refusal to rule

and the party’s objection to that refusal. TEX. R. APP. P. 33.1(a).


       Appellant concedes that no objection or motion was made at trial concerning these

three points. He argues, however, that the ambiguity of the verdict below “is fatal to any

preservation requirement.” Specifically, he contends that no contemporaneous objection

was required because he had no cause to object until the deadly-weapon finding

appeared in the final judgment.


       As explained above, we are unpersuaded by appellant’s argument that the trial

court’s affirmative finding of a deadly weapon was ambiguous. Appellant was required to

object at trial to preserve for appeal his claims that his constitutional rights were violated

by the deadly-weapon finding. See Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim.

App. 2008) (appellant waived equal protection claim when he neglected to raise issue at

trial); Curry v. State, 910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995) (contention that

statute is unconstitutional as applied to an accused because of vagueness and

uncertainty must be asserted in the trial court or it is waived).


       We overrule appellant’s second, third, and fourth issues.


                                              5
                                       Conclusion


      The judgment of the trial court is affirmed.




                                                     Judy C. Parker
                                                        Justice


Do not publish.




                                            6
