*1 given. Ap- Here no such instruction overruled, un-
pellant’s objections were impres- leaving jury the
doubtedly properly consider they could
sion Cherry, supra.
prosecutor’s remarks. find the of this record we the basis
On improper were both
prosecutorial remarks mo- Accordingly, the State’s harmful. for is overruled.
tion FANN, Appellant, Texas, Appellee.
The STATE of
No. 65784. Texas, Appeals of
Court of Criminal
En Banc.
July 1985. Rehearing
On 1986. Jan. Gray, Dallas, appellant.
Edward Wade, Atty. Henry Dist. and John D. Nation, LeNoir, Hugh Lucas Martin Dallas, Huttash, Attys., Asst. Dist. Robert Austin, Atty., for the State. State’s *2 003 OPINION 38.04, V.A.C.C.P., and applying and the statutory rules of construction and the TEAGUE, Judge. (Article 5429b-2, Code Construction Act Fann, appellant, was tried 3.03, V.A.C.S.), Sec. we conclude that when a the by committing convicted of of the trier the facts the ‘affirm- aggravated offense of sexual abuse. finding’ ative mentioned in said Article 42.- twenty- 3f(b), Sec. as whether a firearm was (25) years’ Depart- five confinement during or used exhibited of commission reforming the ment of Corrections. After etc., offense, must be made conviction, judgment of we will affirm. In jury.” parte Barecky, Ex 639 S.W.2d Appellant presents grounds er- three of 943, 945 (Tex.Cr.App.1982), Court, this review, ror for will we overrule. speaking through Davis, Judge Tom ex- None of them sufficiency concern the of holding parte Thomas, tended the in Ex the evidence. supra, and held: “We no see reason to Appellant ground asserts of second distinguish between find- ‘affirmative error that the trial should not have 3f(a) ing’ Sec. which this cause [under entered of a conviction and the finding1 ‘affirmative in Sec. falls] deadly weapon that a or was used 3f(b), respect with question to the of iswho during the exhibited commission of the of- finding.” Thus, to make such a if the aggravated fense of sexual abuse. We fact, it, is the trier of and not agree, but also find that because judge, must make the was convicted of one of the enumerated 3f(a) mentioned in 3f(b) either Sec. or Sec. 42.12, offenses listed Section 42.12, of supra. Also see Polk v. 3f(a)(l), V.A.C.C.P., amendment, prior to State, 693 (Tex.Cr.App.1985). 42.12, 15(b), also see Art. Section V.A.C. in this cause The indictment did not C.P., amendment, prior to improper af- or deadly weapon was used allege any firmative will not have effect of- during the commission of the exhibited upon eligible when will become fense, charge nor does “regular” for release on parole. Neverthe- anything about a guilt mention less, because the trial should not Thus, without an “affirmative weapon. have made the finding, we will of finding” jury, who was trier by the reform and correct the of convic- had fact by deleting tion following: therefrom the find- the “affirmative to enter “The court finds that defendant Thomas, supra; parte Ex ing”. parte Ex used a deadly weapon during or exhibited State, supra. The supra; Polk v. Barecky, the commission of said offense.” will be reformed judgment of conviction charged ap- The indictment in this cause deleting corrected this Court pellant committing ag- with the offense of following: “The court finds therefrom gravated allege sexual abuse. did It used or exhibited defendant herein deadly weapon that a was exhibited of during the commission offense, the commission of the nor said offense.” issue, was the instructed on the have disposition that we of the Because weapon a deadly whether used or ex- error, ground of second of appellant’s made hibited of al- commission day a discussion for another pretermit we leged offense. ground of in his first of issue he raises In parte Ex 638 S.W.2d error, an “affirmative namely, that before Court, finding,” deadly weapon was used that a speaking Onion, through Presiding Judge of- during the commission of an 3f(b), “Reading held: Article Sec. may fense be entered V.A.C.C.P., together with Articles 36.13 must conviction, charging instrument (Tex. allegation. contain this Cf. Polk v. Flores v. Clinton, J.) Cr.App.1985) (Concurring Opinion by we discussed this issue and stated: error, appel ground In his third finding by An affirmative the trial court lant asserts that the order of transfer of appropriate would still in this have been from one his cause district court Dallas *3 case, however, the trial court because County to another district court of Dallas punishment was the trier of facts the County deprived is the invalid and trans stage The did not appellant of the trial. jurisdiction feree court of because it was punishment. elect to set his have the properly signed by presiding judge not the facts, As the trier of the trial court had of the court from which the cause was finding power the to add the affirmative disagree. transferred. We the if the facts and to showed The record reflects that did not himself he believed that the complain the trial transfer order the deadly weapon used or exhibited a dur- court, but does so for the first time on ing the commission of this offense. This that appeal. 480, to properly complain In Torres v. (1955), State, this Court of a transfer 161 Tex.Cr.R. held Polk 294-84, Court has May State, approved [693] 1985). S.W.2d procedure. [391] (No. appeal, order on the defendant must first Also, State, 693 391 Polk v. S.W.2d questioned in trial court show that he the (Tex.Cr.App.1985)we stated that the issue validity By the of the transfer order. wait- finding may by of an affirmative be made ing complain until now to of the transfer punishment special issue submitted at the order, appellant complaints has waived stage. We noted that fact that the transfer order is invalid and de- findings special makes affirmative is- prived jurisdiction the transferee court of punishment stage of sues submitted at the signed by because it not the was 37.071, capital murder trial. See the court from which the cause was trans- Thus, purposes the V.A.C.C.P. “[F]or ferred. Also see Duran v. 505 42.12, supra, finding an affirmative the S.W.2d 863 and if, during punishment may be made Appellant’s third cases cited therein. trial, presented stage of the trier of fact is ground of error is overruled. responds and in the affirmative to a with reformed, judgment in as special regarding the defendant’s use issue is affirmed. deadly weapon or firearm or exhibition of a commission of the offense.”
CLINTON, J.,
participating.
Polk,
693
at 394. Consistent with
Flores,
Polk,
supra,
and
we hold
WHITE, JJ.,
MILLER and
dissent.
where,
case,
instant
that
as
punishment
judge is the trier of fact at
OPINION ON STATE’S MOTION
stage
he has heard evidence on the
FOR REHEARING
issue,
authority
an
he has the
to make
finding
as to the use or exhibi-
DAVIS, Judge.
W.C.
deadly weapon
if the
has not
tion of a
original
we held
submission
On
including such an
By
decided the matter.
although
punish
finding
judgment,
ment,
authority
make an af
he had
to
essence,
court,
responds
appellant used or
firmative
concerning
use or exhibition of a
issue
deadly weapon
no such
when
deadly weapon.
guilt-
made
at the
is
stage.
granted
innocence
We
the State’s
When
judge,
issue
held before the
motion for
to address the
punishment
of fact as to the
had
is the trier
of whether the trial
finding.
An affirmative
can be
issues.
make such an affirmative
court,
perhaps
more suited to be a
“The court
finds that defendant
Polk,
supra;
issue. See
see Art.
herein used or exhibited a
3f,
15(b),V.A.C.C.P.;
Sec.
and Sec.
see also
offense,”
commission of
Davis v.
(Tex.
684 S.W.2d
supported by
appeal.
the record on
1984).
App.
[1st]
— Houston
agree
Because
am unable to
that the
Neither Ex Parte
638 S.W.2d
support
us
will
nor Barecky v.
(Tex.Cr.App.1982)
statement,
compelled
I am
to file this dis-
State,
record. majority opinion
The does not mention or undisputed
discuss the above omissions in
the record. It nevertheless holds that the supports
record court’s of conviction. The
majority opinion reaches its conclusion
making following incredible statement: EAST, Wayne Appellant,
“By including such an affirmative court, essence, judgment, re- sponds special concerning to issue Texas, Appellee. STATE deadly of a weapon.”1 use exhibition 69057. No. record, light In of this find that majority opinion essence really what the Appeals Texas, Court Criminal although stating is to anyone unknown En Banc. world, himself, in the except he, judge, mentally gave July himself a 1985. issue on the issue that was then,
held day, next
out of the attorney’s pres-
ence, secret, apparently but in out of the
blue, anyone for reasons unknown to but statement, judge, making on the record
1. In it is obvious declaration assuming that the opinion that he can be the majority clearly for the moment author of the looked the has over- entry in the provisions of Art. "trier of fact.” The Section V.A.C.C.P., 3f(a)(2), amendment, "Upon an affirmative prior expressly conditioned to light clearly finding [by record, of this fact].” states that that a dead- ly weapon the record of "an affirm- the omission entry deadly finding" of the prior commission of the offense shall be the ative weapon finding entered in judgment, to a amounts there must be on the first weapon issue. either a written statement "no verdict" on the or an oral