Opinion filed January 6, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-10-00147-CR
                                        __________

                  ROBERTO CERDA ESQUIVEL, JR., Appellant

                                                V.

                                STATE OF TEXAS, Appellee


                           On Appeal from the 39th District Court
                                  Haskell County, Texas
                                Trial Court Cause No. 6302


                            MEMORANDUM OPINION

       This is an appeal from a judgment adjudicating guilt. We affirm.
       Roberto Cerda Esquivel, Jr. originally entered a plea of guilty to the offense of
aggravated assault with a deadly weapon. Pursuant to the plea bargain agreement, the trial court
deferred the adjudication of guilt, placed appellant on community supervision for two years, and
assessed a fine of $500. After a hearing on the State’s motion to adjudicate, the trial court found
that appellant had violated the terms and conditions of his community supervision, revoked his
community supervision, adjudicated his guilt, imposed a sentence of confinement for ten years,
and assessed a fine of $135.
       In his sole issue on appeal, appellant argues that the trial court erred when it entered a
deadly weapon finding in its judgment. Appellant contends that the written deadly weapon
finding in the judgment is void because the trial court failed to orally pronounce the deadly
weapon finding in open court when it adjudicated his guilt.
       Appellant waived an indictment and entered a plea of guilty to the offense alleged in the
information. The information alleged that appellant committed the offense of aggravated assault
with a deadly weapon by pointing a handgun at the victim. The information further alleged that
appellant used and exhibited a deadly weapon – a firearm – in the commission of the offense. In
his stipulation of evidence and judicial confession, appellant stated that he used a firearm in the
commission of the offense. In the order deferring adjudication of guilt, the trial court noted that
a deadly weapon – a firearm – had been used in the commission of the offense.
       At the conclusion of the proceedings on the State’s motion to adjudicate, the trial court
recounted appellant’s “history of assault” and advised him of the seriousness of the
consequences of his violation of deferred adjudication community supervision, stating:
               The Court believes that you should be punished and that your punishment
       should reflect how serious this matter is. A firearm was used in this case. As
       such, after reviewing the evidence in this matter and the defendant having nothing
       to say, it’s the order of the Court that you, Roberto Cerda Esquivel, Jr., who has
       been adjudged to be guilty of the offense of aggravated assault with a deadly
       weapon, a felony, in Cause No. 6302, whose punishment will be assessed at 10
       years’ imprisonment in the Texas Department of Criminal Justice – Institutional
       Division.

       In Ex parte Huskins, 176 S.W.3d 818 (Tex. Crim. App. 2005), the Court of Criminal
Appeals addressed a similar situation as is present in this case. Huskins had pleaded guilty to
deadly conduct. The indictment included the allegation that a deadly weapon – a firearm – was
used. Huskins was placed on deferred adjudication community supervision. When the trial court
revoked the community supervision and adjudicated Huskins’s guilt, the trial court sentenced
Huskins to confinement. While no mention of a deadly weapon finding was made in open court,
the trial court entered a deadly weapon finding in the written judgment. The Court of Criminal
Appeals found that the trial court did not err when it included the deadly weapon finding, stating:
          While a deadly-weapon finding does affect a defendant’s eligibility for
       probation and parole, it does not alter the range of punishment to which the
       defendant is subject, or the number of years assessed. A deadly-weapon finding
       may affect how the sentence is served, but it is not part of the sentence. Thus, a

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        trial court is not required to orally announce a deadly-weapon finding at
        sentencing if the allegation of use of a deadly weapon is clear from the face of the
        indictment (footnotes omitted).

Id. at 821.
        Appellant acknowledges the holding in Huskins but argues that the rule set forth
in Huskins “has substantial potential for abuse.” Appellant asks this court not to apply
the rule set forth by the Court of Criminal Appeals in Huskins. We decline appellant’s
request.
        The trial court did not err by entering a deadly weapon finding in its written
judgment. The sole issue is overruled.
        The judgment of the trial court is affirmed.




                                                       JIM R. WRIGHT
                                                       CHIEF JUSTICE


January 6, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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