                                   NO. 07-06-0460-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                  NOVEMBER 25, 2008

                          ______________________________


                           GARY JACK HELLA, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 53,278-E; HON. ABE LOPEZ, PRESIDING

                         _______________________________

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


                                MEMORANDUM OPINION


       Appellant Gary Jack Hella plead guilty to the jury of the offense of attempted capital

murder with a deadly weapon.         The jury assessed punishment of thirty-five years

confinement in the Institutional Division of the Texas Department of Criminal Justice.1

Appellant presents two points of error. We will affirm the trial court’s judgment.



       1
       The trial court cumulated appellant’s sentence with his twelve-year sentence in
another cause.
                            Procedural and Factual Background


       During an early-morning encounter with police in April 2006, appellant pulled a .9

mm pistol and shot an Amarillo police officer. The bullet hit the officer’s wristwatch and

wrist. Appellant’s attempted capital murder indictment included the allegation that, with the

specific intent to commit the offense of capital murder, appellant attempted to intentionally

or knowingly cause the death of the peace officer, “by shooting at him.”2 The indictment

also included a Deadly Weapon Notice paragraph, alleging that “during the commission

of this offense, the defendant did use or exhibit a deadly weapon, namely, a firearm.”


       Appellant elected to allow the jury to assess his punishment. Following voir dire, he

entered a guilty plea, without a plea agreement. After excusing the jury and admonishing

appellant, the trial court accepted his plea. The court instructed the jury to find appellant

guilty and instructed them to find he used or exhibited a deadly weapon, a firearm. No

objection was made to the charge. The jury found appellant guilty “as charged in the

indictment,” and, via a special issue included on the verdict form, made the deadly weapon

finding.3




       2
            See Tex. Penal Code Ann. § 19.03(a)(1) (Vernon 2005).
       3
         The trier of fact is responsible for making a deadly weapon finding. Asberry v.
State, 813 S.W.2d 526, 529 (Tex.App.–Dallas, 1991, pet. ref’d), modified by Lockett v.
State, 874 S.W.2d 810, 818 (Tex.App.–Dallas 1994, pet. ref’d). In a jury trial, the trial
court is authorized to enter a deadly weapon affirmative finding in three instances: (1)
where the indictment specifically alleges the words “deadly weapon”; (2) where the
indictment names a weapon which is per se a deadly weapon and the verdict reads “guilty
as charged in the indictment”; and (3) where a special issue is submitted to the trier of fact
and answered affirmatively. Polk v. State, 693 S.W.2d 391, 395-96 (Tex.Crim.App. 1985).
       At the conclusion of the punishment evidence, the jury assessed punishment as

noted.4 This appeal followed.


                                           Analysis


       Through two issues, appellant asserts there was no evidence to support the

affirmative deadly weapon finding and the court abused its discretion in striking a

prospective juror for cause.


Deadly Weapon Finding


       Before appellant entered his plea of guilty, the State read the one-count indictment,

including the paragraph entitled “deadly weapon notice.” Appellant’s contention on appeal

is that his plea of guilty applied only to the charging paragraph of the indictment, and the

court did not separately ask whether he acknowledged the truth of the deadly weapon

allegation. Thus, appellant argues, the guilty plea provides no support for the jury’s deadly

weapon finding. We disagree, and overrule the issue.


       It is well established that in felony cases, a plea of guilty before the jury admits the

existence of all elements necessary to establish guilt and, in such cases, the introduction

of evidence by the State is only to enable the jury to intelligently exercise the discretion

which the law vests in them to determine punishment. Addicks v. State, 15 S.W.3d 608,

612 (Tex.App.–Houston [14th Dist.] 2000, pet. ref’d) (citing Holland v. State, 761 S.W.2d


       4
          See Tex. Penal Code Ann. § 12.32 (Vernon 2003) (setting forth punishment range
for first degree felony at a term of imprisonment for life or not more than 99 years or less
than five years).

                                               3
307, 312 (Tex.Crim.App. 1988)); see also Williams v. State, 674 S.W.2d 315, 318

(Tex.Crim.App. 1984) (noting that no evidence need be entered when appellant pleads

guilty before a jury; evidence is necessary for a guilty plea before the court only). In such

cases, the plea of guilty is conclusive as to the defendant's guilt and there is no question

of the sufficiency of the evidence on appeal. Ex parte Martin, 747 S.W.2d 789, 792

(Tex.Crim.App. 1988) (op. on reh’g); Ratthamone v. State, 111 S.W.3d 784, 785-86

(Tex.App.–Fort Worth 2003, no pet.); Stahle v. State, 970 S.W.2d 682, 688

(Tex.App.–Dallas 1998, pet. ref’d).


       Appellant cites us to no authority requiring that we dissect the deadly weapon notice

allegation from his plea of guilty in the manner his argument suggests. As noted, the single-

count indictment, with its deadly weapon notice, was read immediately prior to his plea, and

nothing in the record suggests appellant’s plea of guilty applied to less than the entirety of

the indictment’s allegations.    Cf. Rudnick v. State, No. 03-02-00767-CR, 2003 WL

22023435, *2 (Tex.App.–Austin, August 29, 2003) (mem. op.) (not designated for

publication) (defendant’s acknowledgment of guilt to “each and every allegation” of multiple-

count indictment included deadly weapon allegation). A plea of guilty to an indictment that

includes an allegation the defendant used a deadly weapon authorizes an affirmative deadly

weapon finding.5 Meza v. State, No. 01-97-01345-CR, 1999 WL 11742 (Tex.App.–Houston


        5
         Appellant analogizes to Dorsey v. State, 117 S.W.3d 332 (Tex.App.–Beaumont
2003, pet. ref’d), in which the appellate court reformed a judgment to delete a deadly
weapon finding. The murder indictment charged that the defendant caused “the shooting
death” of the victim, “by shooting her.” The jury found the defendant guilty “as charged in
the indictment,” without an express finding as to the use of a deadly weapon. Id. at 343.
By contrast, we find here that appellant plead guilty to an indictment that contained an
explicit deadly weapon allegation.

                                              4
[1st Dist.] January 14, 1999, pet. ref’d) (mem. op., not designated for publication), citing

Alexander v. State, 868 S.W.2d 356, 361 (Tex.App.–Dallas 1993, no pet.) We find

appellant’s plea of guilty to this indictment supported the jury’s affirmative answer to the

special issue.6


Striking of Prospective Juror


       During voir dire, a member of the venire indicated she had some trouble with the type

of case involved and the applicable range of punishment. She told the court she had a son

near the age of appellant. The State included her in its list of challenges for cause.

Appellant objected. Counsel said, “I think she needs an opportunity to discuss,” and argued

the panel member did not say she could not deliberate or be fair. The trial court and both

parties then questioned the prospective juror further, after which the trial court excused her

without objection from appellant.


       On appeal, appellant contends that the trial court abused its discretion in excusing

the prospective juror. Both the State and appellant cite Kemp v. State, 846 S.W.2d 289

(Tex.Crim.App. 1992). In Kemp, the defendant sought further questioning of a panel

member. After the further questioning, the State challenged the member for cause and the

trial court granted the State’s challenge without objection from the defendant. Id. at 302.



        6
        As the State also notes, appellant testified on punishment. During his testimony,
he identified the pistol he used to shoot the officer, and acknowledged its deadly nature.
We express no opinion whether appellant’s evidentiary sufficiency complaint with respect
to the deadly weapon finding was foreclosed by his admission of use of a deadly weapon
in the commission of the offense. See Leday v. State, 983 S.W.2d 713, 725-26
(Tex.Crim.App. 1998).

                                              5
The appellate court noted the settled rule that if an appellant does not object when a

member of the venire is excused for cause, the appellant may not challenge the trial court’s

decision on appeal. Id. It found that the defendant’s action seeking further questioning of

the panel member did not give the trial court an indication he was opposed to the court’s

ruling. We think the same is true here. Appellant’s objection sought further questioning of

the panel member but no objection was raised to her release from service after she was

questioned in detail. We find appellant’s issue presents nothing for our review.


       Moreover, having reviewed the panel members’ responses during voir dire, we find

the court did not abuse its discretion by granting the State’s challenge for cause. Her

responses to the questions of counsel and the court were vacillating, equivocal and to some

extent contradictory. In reviewing a trial court's decision to dismiss a potential juror on a

sustained challenge for cause, considerable deference is given to the trial judge, who is in

the best position to evaluate the potential jurors; the judge benefits from observation of the

individual’s demeanor and responses while an appellate court has only the cold record.

Chambers v. State, 866 S.W.2d 9, 22 (Tex.Crim.App. 1993), citing Cantu v. State, 842

S.W.2d 667, 681 (Tex.Crim.App. 1992). When the potential juror's answers are vacillating,

unclear or contradictory, the trial judge's observation is particularly important. Chambers,

866 S.W.2d at 22. In reviewing the trial judge's decision to sustain a challenge for cause,

we ask whether the totality of the voir dire testimony supports the trial judge's finding “that

the prospective juror is unable to take the requisite oath and follow the law as given by the

trial judge,” and only if a clear abuse of discretion is demonstrated will the trial judge's




                                               6
decision be reversed. Id. Appellant’s second point of error is overruled. Having overruled

appellant’s points of error, we affirm the trial court’s judgment.




                                    James T. Campbell
                                         Justice

Do not publish.




                                               7
