Duran v. .State
2016 Tex. Crim. App. LEXIS 102
| Tex. Crim. App. | 2016Background
- Defendant entered victim’s apartment with others and a DVD player was thrown at the victim; indicted on two counts: burglary of a habitation (Count I, alleged commission/attempted commission of aggravated assault) and aggravated assault with a deadly weapon (Count II).
- Jury convicted on both counts at guilt/innocence; before punishment the State announced it was abandoning Count II to avoid double jeopardy.
- Jury assessed punishment only on Count I (burglary) and found a prior felony enhancement true; trial court’s initial judgment nonetheless recited convictions for both counts but no deadly-weapon finding.
- The State later moved to modify the judgment to add an affirmative deadly-weapon finding based on the jury’s guilty verdicts; the trial court granted the motion over defense objection.
- Court of appeals affirmed in part but declined to vacate the aggravated-assault conviction and upheld the deadly-weapon finding; the Texas Court of Criminal Appeals granted review.
Issues
| Issue | State's Argument | Duran's Argument | Held |
|---|---|---|---|
| Whether conviction for aggravated assault (Count II) should remain in judgment after State abandoned it post-jeopardy | Count II conviction stands because jury found guilt; judgment may reflect that conviction even if punishment assessed only on Count I | Abandonment after jeopardy is tantamount to acquittal; conviction should be vacated to avoid double jeopardy consequences | Vacated Count II conviction; abandonment after jeopardy bars use of that verdict and it must be removed from the judgment |
| Whether trial court properly entered an affirmative deadly-weapon finding in judgment for burglary (Count I) | Deadly-weapon finding is supported because jury found guilty of aggravated assault with a deadly weapon (so jury necessarily found weapon use) | Jury verdict on burglary did not expressly or necessarily make an affirmative deadly-weapon finding; Polk and progeny require an affirmative finding or specified circumstances | Reversed modification; no deadly-weapon finding may be entered for Count I absent an authorized affirmative finding (deleted from judgment) |
| Whether a jury verdict on an abandoned/ dismissed count can be used to support a deadly-weapon finding on the remaining count | The abandoned aggravated-assault verdict could supply the necessary finding to support a deadly-weapon entry on Count I | An abandoned count is tantamount to acquittal once abandoned post-jeopardy and cannot be resurrected to support a deadly-weapon finding | Rejected: an abandoned verdict cannot be relied on to support a deadly-weapon finding for the surviving conviction |
| Standard for when a deadly-weapon finding may be entered in judgment | (State) Affirmative finding may be inferred from verdicts showing guilt "as charged" or from facts | (Duran) Such inferences are improper; Polk requires one of limited, authorized scenarios for an affirmative finding | Court reiterates Polk framework and related authorities: only specified scenarios (indictment language, per se weapon, or express special issue/other Polk/Lafleur/Crumpton circumstances) justify entry |
Key Cases Cited
- Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985) (defines "affirmative finding" requirement and lists scenarios authorizing deadly-weapon entries)
- Lafleur v. State, 106 S.W.3d 91 (Tex. Crim. App. 2003) (adds scenario where lesser-included offense application paragraph requires weapon finding and jury convicts of that lesser offense)
- Crumpton v. State, 301 S.W.3d 663 (Tex. Crim. App. 2009) (applies deductive reasoning where verdict referred to conviction "as included in the indictment" with an express deadly-weapon allegation)
- Ex parte Preston, 833 S.W.2d 515 (Tex. Crim. App. 1992) (State may dismiss/abandon a charge, but abandonment after jeopardy attaches is tantamount to acquittal)
- Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) (remedy for multiple punishments is to affirm the most serious conviction and vacate the other(s))
- Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (clarifies factors for selecting which conviction to retain when double jeopardy violation occurs)
- Blount v. State, 257 S.W.3d 712 (Tex. Crim. App. 2008) (discusses notice and the connection between aggravated assault and deadly-weapon allegations)
- Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008) (observes that statutory aggravated-assault aggravators involve use of a deadly weapon)