OPINION
Opinion by
Kenneth Wayne Enlow, II and John Thomas Parker were charged with aggravated robbery and were tried as co-defendants in a jury trial. The jury convicted Enlow as a party to aggravated robbery
Enlow first challenges the legal and factual sufficiency of the evidence. He specifically contends that the evidence is insufficient to support his conviction for aggravated robbery as a party because it does not show that he intended to promote the aggravated robbery or that he should have anticipated that his co-defendant Parker would use a deadly weapon in the robbery.
In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia,
In rеviewing the factual sufficiency of the evidence, we view the evidence in a neutral light, comparing the evidence that tends to prove the element in dispute with the evidence that tends to disprove the element.
Johnson v. State,
At trial, the State prosecuted En-low as a party, not as a principal. The State’s first task was to prove that Parker, the principal, committed aggravated robbery. A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he knowingly or intentionally threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (Vernon 1994). A person commits aggravated robbery if he uses or exhibits a deadly weapon in the course of a robbery. Tex. Pen. Code Ann. § 29.03 (Vernon 1994).
Next, the State was required to еstablish that Enlow was criminally liable for Parker’s actions. The court’s charge allowed the jury to hold Enlow criminally responsible for Parker’s conduct if the evidence proved (1) that Enlow solicited, encouraged, directed, aided, or attempted to aid Parker in committing the offense with intent to promote or assist in the commissiоn of the offense, Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 1994), or (2) that in an attempt to carry out a conspiracy to commit one felony, Parker committed another felony, even though Enlow had no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that Enlow should have anticipated аs a result of the carrying out of the conspiracy, Tex. Pen. Code Ann. § 7.02(b) (Vernon 1994).
The evidence, which consisted of testimony from several witnesses and the written statements of Parker and Enlow,
After searching through a barn and a storage shеd, Parker and Enlow decided to enter the Browns’ residence. On this hot September night, the Browns had left the front door open, and Parker simply tore through a flimsy screen door, unlocked it, and he and Enlow entered the home. According to Enlow’s voluntary statement, Parker carried into the house a wooden stick that “looked like a sрlitting mall or sledge hammer handle.” Parker unhooked a VCR that was in the front room and told Enlow to hold it while he explored the rest of the house. Mrs. Brown, who had fallen asleep in her bed while reading, awoke and discovered Parker in her bedroom. When she awoke, Parker beat her severely in the face with the wooden stick. He аlso injured her right hand when she raised it to protect herself. Parker and Enlow fled the house with the Browns’ VCR and a chainsaw that they had taken from the storage shed. Parker and Enlow were arrested the next day.
Based on the evidence, we conclude that the jury could reasonably find that Enlow should have been aware that Parker might cоmmit aggravated robbery during the course of the robbery. There was evidence that four vehicles were parked at the home, that a bedside light was on, and that Enlow knew that Parker entered the home with a large wooden stick. This evidence shows that Enlow should have known that people were in the home and that a confrоntation might occur. He knew that Parker carried a weapon into the house and must have known that the purpose of carrying a weapon into the house was to threaten or injure anyone who might confront them in the house.
Moore v. State,
In his second point of еrror, Enlow contends that the trial court erred by entering a deadly weapon finding in its judgment. The deadly weapon finding is significant because it makes Enlow ineligible for parole until his actual calendar time served equals one half of the sentence or thirty years, whichever is less, so long as it is not less than two calendar years. Tex. Code Crim. PROC. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2001); Tex. Gov’t Code Ann. § 508.145(d) (Vernon Supp. 2001).
In a jury trial, a trial court may enter an affirmative deadly weapon finding in three situations: where the jury has (1) found guilt “as alleged in the indictment” and the deadly weapon was specifically pleaded, using the “deadly weapon” nomenclature; (2) found guilt “as alleged in the indictment” but, though nоt specifically pleaded as a deadly weapon, the weapon is per se a deadly weapon; or (3) affirmatively answered a special issue on deadly weapon use.
Davis v. State,
The jury did not specifically find that Enlow used a deadly weapon or knew that one would be used or exhibited. The trial court’s entry of a deadly weapon finding was therefore improper. But the State argues that the trial court’s error was harmless because reforming the judgment to eliminate the deadly weapon finding would not affect Enlow’s parole eligibility, since his aggravated robbery conviction alone subjects him to the same parole restrictions as would a deadly weapon finding. Tex. Code Crem. Proc. Ann. art. 42.12, § 3g(a)(l)(F) (Vernon Supp. 2001); Tex. Gov’t Code Ann. § 508.145(d).
Although correct in its argument that the minimum time required before Enlow will be eligible for parole will not change with the redaction of the deadly weapon finding, the State fails to consider the possibility that Enlow might suffer some other harm because of the deadly weapon finding. The deadly weapon finding might affect the decision of the Parole Board when Enlow becomes eligible for parole consideration. If Enlow were ever tried for another offense, this conviction might be admitted against him in that trial. The effect of the deadly weapon finding could reach beyond simply increasing the prison time required of Enlow before he will be considеred for parole. We cannot know all of the possible effects that the deadly weapon finding could have on Enlow, so we cannot say with any certainty that the finding is harmless.
See Edwards v. State,
Enlow also contends that the trial court erred in failing to submit an independent impulse charge to the jury. Specifically, he argues that the court’s refusal to include the requested language in the jury charge allowed the jury to convict him using a charge that failed to inform the jury of the circumstances requiring a conviction or acquittal.
See Barrera v. State,
Having found that the defendant John Thomas Parker committed the aggravated robbery of Loretta R. Brown, if you further find that Kenneth Enlow did not agree and that he had no intent to participate in the aggravated robbery of Loretta R. Brown, and that he did nоt participate in any way in the furtherance of the purpose and design of John Thomas Parker in committing the offense of aggravated robbery of Loretta R. Brown, and never agreed to the commission of any offense, and if you so believe, or if you have a reasonable doubt thereof, you will acquit the defendant Kеnneth Enlow II.
The trial court should provide the jury with a statement of the law and, additionally, apply that law to the evidence presented in the case.
Riley v. State,
The charge the court submitted to the jury contained thе statutory language defining circumstances under which a party may be held responsible for the criminal act of another. Tex. Pen. Code Ann. § 7.02(a)(2), (b). Additionally, the charge applied the law to the facts of the case. With these definitions and applications in the charge actually given to the jury, the independent impulse instructiоn was not required. Moreover, the addition of the language requested by Enlow would have been superfluous, adding unnecessary information to an already long and detailed jury charge.
In points of error four, five, and six, Enlow contends that the court improperly allowed the attorneys to summarize the evidence at the end of thе first day of trial. In order to preserve error for appeal, a party must object and obtain a ruling from the trial court. Tex. R. App. P. 33.1(a)(1)(A);
Smith v. State,
In his seventh and final point of error, Enlow contends that Article 37.07 of the Texas Code of Criminal Procedure is unconstitutional. Enlow specifically challenges Section 3(a) of the statute, which allows the trial court to admit at the punishment stage of the trial any evidence that the court deems relevant to sentencing. Enlow argues that this statute violates the separation of powers provision of the Texas Constitution and denied him due process and due course of law.
Article II, § 1 of the Texas Constitution provides that the Texas government shall consist of three distinct departments: the legislative, executive, and judicial departments. “[N]o person or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.” Tex. Const, art. II, § 1. The Texas Court of Criminal Appeals has recognized that the separation of powers clause may be violated in two ways: (1) when one branch of government assumes or is delegated a power that is more properly attached to another branch, and (2) when one branch unduly interferes with another branch to the extent that the other branch cannot effectively exercise its constitutional powers.
State v. Williams,
Enlow asserts that Article 37.07 allows the Legislature to invade the province of the judiciary and allows the judiciary to invade the province of the Legislature. Through the Texas Constitution, the people have vested the Legislature with
The statute does not encroach on the fundamental areas of judicial authority, which are hearing evidence, deciding fact issues, deciding questions of law, rendering judgment, and executing the final judgment or sentence.
Kelley v. State,
We reform the judgment of the trial court to eliminate the deadly weapon finding. As reformed, the trial court’s judgment is affirmed.
Notes
. Article 37.07 permits either party to present evidence at the punishment stage as to any matter the court deems relevant to sentencing, including specific extraneous crimes or bad acts. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2001).
. Tex. Gov't Code Ann. § 22.109 (Vernon 1988) provides:
(a) The court of criminal appeals has the full rulemaking power in the promulgation of rules of evidence in the trials of criminal cases, except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.
(b) The court of criminal appeals may promulgate a comprehensive body of rules of evidence in the trials of criminal cases and from time to time may promulgate a specific rule or rules of evidence or an amendment or amendments to a specific rule or rules. Rules and amendments adopted under this subsection are effective at the time the court of сriminal appeals considers expedient in the interest of a proper administration of justice. The rules and amendments to rules remain in effect unless and until disapproved by the legislature. The secretary of state shall report the rules or amendments to rules to the next regular session of the legislature by mailing a copy of the rules or amendments to rules to each elected member of the legislature on or before December 1 immediately preceding the session.