Drake Jordan Finch v. State
07-15-00104-CR
| Tex. App. | Jul 15, 2015Background
- Drake Jordan Finch was indicted for aggravated assault on a household member alleging he "use[d] or exhibit[ed] a deadly weapon, to-wit: his hand or an unknown object," and pleaded not guilty.
- The guilt-phase jury charge mirrored the indictment and allowed conviction if the jury found "use or exhibit" of a deadly weapon; the jury returned a verdict finding him "guilty of Aggravated Assault as alleged in the indictment."
- At punishment the court instructed the jury the applicable range was that for first-degree aggravated assault (5–99 years); the jury assessed 40 years.
- The judgment labels the offense as a first-degree felony and imposes the 40-year sentence; no enhancement paragraphs were pleaded or proved.
- Appellant's claim: because the indictment/charge authorized conviction on "use or exhibit" (a second-degree offense) rather than the statutory "use" element required to elevate to first-degree, the 40-year sentence is illegal or, alternatively, the sentencing charge produced egregious harm warranting remand for resentencing under the proper (second-degree) range.
Issues
| Issue | Plaintiff's Argument (Finch) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Legality of 40-year sentence given indictment alleged "use or exhibit" | Indictment/charge/verdict authorized only second-degree aggravated assault ("use or exhibit"); first-degree requires a jury finding the actor actually "used" a deadly weapon; sentence (40 yrs) exceeds the statutory maximum for second-degree (2–20 yrs) and is therefore illegal. | State likely to argue the evidence shows "use" (not mere exhibition), or that the verdict/charge supports the first-degree judgment; or harmless error. | Appellant seeks reformation/remand for new punishment hearing under second-degree range (disposition not contained in brief). |
| 2. Egregious harm from sentencing charge listing first-degree range | Sentencing charge authorized punishment beyond lawful range for the convicted offense; allowing a 40-year sentence deprived Finch of the right to be sentenced under correct statutory range—this constitutes egregious harm requiring remand. | State likely to contend any charge error was harmless because evidence justified higher range or because no timely objection was made (Almanza standard). | Appellant requests resentencing; argues Alm anza egregious-harm standard is met because sentence exceeds lawful maximum (disposition not in brief). |
| 3. Whether evidence can cure the charging/elemental defect | Finch: the sufficiency or strength of evidence cannot cure a sentencing defect where the indictment/charge/verdict did not require the jury to find the specific "use" element necessary for first-degree elevation. | State: may argue the record demonstrates "use"—so any error is harmless. | Finch relies on precedents holding the record cannot be reshaped to amend what the jury was instructed to find (disposition not in brief). |
| 4. Availability of relief given precedent on reformation/remand | Finch: Under Bowen and related authority, judgment should be reformed and remand ordered for resentencing within the correct range. | State: may urge affirmance or that any reformation is unnecessary because trial record supports first-degree designation. | Finch asks court to reform judgment to second-degree and remand for punishment hearing (disposition not in brief). |
Key Cases Cited
- Prytash v. State, 3 S.W.3d 522 (Tex. Crim. App.) (jury must find every element of the offense at guilt stage)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.) (use of hypothetically correct jury charge for sufficiency review)
- Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App.) (judgment reformation to reflect true offense and remand for punishment when appropriate)
- Miller v. State, 86 S.W.3d 663 (Tex. App.—Amarillo) (distinguishing "use" from "exhibit" in aggravated assault context)
- Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App.) ("use" and "exhibit" are not synonymous; different conduct is implicated)
- Almanza v. State, 686 S.W.2d 171 (Tex. Crim. App.) (standards for reversible jury-charge error and egregious harm analysis)
- Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App.) (an illegal sentence is void and may be corrected at any time)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App.) (application paragraph, not abstract law, authorizes a conviction)
- Crenshaw v. State, 378 S.W.3d 460 (Tex. Crim. App.) (the application paragraph is the operative portion that authorizes conviction)