*1 110 appeal appellant’s Because notice of appeal.2
Ms notice of Shute v. came thirty-one (Tex.Cr.App.1988) days day after the sentence was n. court, J., (Clinton, untimely it concurring). imposed open See also Stokes v. 41(b)(1). (Tex.Cr.App.1985); appeals Rule The court of there- (Tex. Renier, juris- correctly concluded that it lacked 734 S.W.2d fore J., appeal. Accordingly, dissenting). over the Cr.App.1987) (Teague, In diction appeals of the court of appealable appeal by criminal affirmed. other cases— 44.01, supra, the State under Article appeal from an adverse after is order corpus of habeas other than
suance writ application post-conviction for habeas cor
pus brought under Article ap of timetable for notice
V.A.C.C.P.—the
peal begins day sigmng of the of the on the order,
appealable dismissing the order trial, indictment, sup granting a new HOOKS, Appellant, Cassandra Yolanda evidence, corpus pressing denying or habeas v. relief.3 of Texas. The STATE reminds us that in State v. Rosenbaum, (Tex.Cr.App. No. 1532-92. appeal we held that a State’s notice Court of Criminal dismissing portion from an order En Banc. begins the trial court indictment signed For of Article order. June 1993. 44.01(d), V.A.C.C.P., we construed “entered “signed by by the to mean court” 41(b)(1).
judge,” keeping with Rule Thus provisions. two But
we harmonized those
nothing holding in con about the Rosenbaum holding today,
flicts with our or renders it notice of
any less definite. That
appeal following partial dismissal of in days within fifteen
dictment must come signing order Rule under both
41(b)(1), and, we it in Rosen- construed
baum, 44.01(d), impede Article our following appeal
conclusion that notice
judgment of conviction must be filed within days imposed
thirty after the sentence is or court,
suspended open according to 41(b)(1).
plain terms of Rule determining starting point exclusive timeli- 2. A motion for new which definition conviction, time, State, supra after comes and at no other appeal. ness notice of Rodarte any must be filed and be amended at time at 785. thirty days within after the date sentenced is imposed suspended open or court. Tex. illegal appeal an The State authorized is also R.App.Pro., When Rule 31. a motion for new ruling question of law if the sentence or "a filed, 41(b)(1) contemplates trial has Rule been appeals defendant is convicted in the case ninety days appeal that notice of be filed within 44.01(b) (c), & V.A.C.C.P. imposition suspension open of sentence immediately apparent event in It is not appeals, court. Like believe we this 41(b)(1) appeal Rule time- activates notice is, signifies "ordinary” appeal, that in the table in nature. leave State's conviction, appeal imposition from a however, day. problem, for another suspension of sentence in
HI 22.02(a)(4). Code, § In a V.T.C.A. Penal plea guilty, bench her of not the trial trial on and assessed punishment at confinement for a term of ten $300; however, years and a fine of suspended imposition of sentence and probation ordered released on for a 2(2) like term. Article V.A.C.C.P. discretionary petition to determine whether the court of
review correctly held that “the limitation of 42.12, § 3g(a)(2), applies [Article V.A.C.C.P.] [appellant],” so that the trial court was precluded placing appellant proba from tion, judge “effectively in that the trial deadly weapon;” holding consequently judg further perforce remanding below is “void” and ment the cause for “a new trial consistent with [its] opinion.” Hooks v. 1992).1 — Dallas
The instant offense was committed on or about October 1990. Then Section 3g(a)(2) provided: “(a) provisions of Section 3 Mason, Edgar Anton, Dallas, A. Bruce E. apply: article do not appellant. Vance, Atty., John Dist. and Sharon
Batjer, Dallas, Atty., Asst. Dist. Robert Hut- (2) to a defendant when shown tash, Austin, Atty., for the State. deadly or a
the defendant used exhibited 1.07(a)(ll), weapon as defined in Section Code, during Penal the commission of a OPINION ON STATE’S PETITION FOR during flight offense or immediate DISCRETIONARY REVIEW Upon finding that therefrom. CLINTON, Judge. the defendant used or exhibited a weapon during the commission of an of- aggravated The offense is assault threat flight awith to-wit: a firearm. fense or immediate there- duly peace judge engaged appellant following was on collo- officer she committed instant assault. A probation required condition “submit "THE COURT: Court was under the [T]he she time, resignation Department” impression, her to the Dallas Police at that that the court could copy give probated “present [and] certain to the sentence this case do, Instead, following day. you was it Court" on the is what were told that could not, for new Miss filed motion trial. Brooks? DEFENDANT: Yes. gravamen of the motion is that she "was not informed Counsel that the Court did not Well, Court, having statutory authority punish- have the THE COURT: heard assess testimony is denied.” ment in a case such as the offense motion —the (All throughout supplied by involving herein the use here and the writer unless otherwise indi- sentence would void.” of this cated.) hearing After evidence on the motion the trial
from,
that “Polk
enter the
says
applies
shall
The State
exclu
the trial court
sively
trier
of the court.
to cases which
is the
affir-
fact,”
mativefinding as its
invokes
sole
Lucke,
was (Tex.App.—
defendant used
exhibited
1987)
finding Ap-
Houston
no PDR. Brief for
the court shall enter
its
[1st]
*3
entirely
pellee, at 2-3.
relies
on
Polk, applied
as
to a bench trial.
State,
v.
Polk
(Tex.Cr.App.
H3 alleged defen ring problem, again App.1988). and to its resolution here The indictment “by shoot we now turn. dant caused the death of another ing handgun” him with a (Tex. Brooks, In Ex “guilty in the indict defendant Cr.App.1986), the trial court did not enter an ment;” described the offense finding, despite the ease with “Murder, entry, Handgun.” to-wit a That “implied” which it could have made an affir said, will not “constitute a punishment phase at the finding that the defendant used or exhibited specific finding separate then entered deadly weapon during the ly judgment. Department Yet the charged” which he was be offense with calculating applicant’s parole Corrections language satisfy cause “such does eligibility date from “the recitation *4 entry requirement separate specific judgment,” verdict in the as an affirmative judgment finding use and aof judgment “as if the reflected the Id. at 875. exhibition aof entry finding concerning of an affirmative Again, explained: the Court deadly weapon.” the use or exhibition of a “... The three alternative methods of a Polk, Alluding teachings Id. at 142. affirmative delineated in explained: the Court Polk, supra, merely serve as factual “... is not Such affirmative basis on which a of use and exhibi- judgment in recitation deadly weapon justifiably tion of ‘firearm,’ ‘deadly weapon,’ with the words judgment.” phrases or other similar added to the of- Brooks, “... As we made clear in Ex fense for which a defendant is convicted. supra, a recitation of the offense in the Nor is an affirmative made and ‘deadly judgment weapon’ the words judgment entered when the reflects the Likewise, a reference is insufficient.... jury verdict of the refers verdict se, weapon, deadly per in to a which is weapon.” (emphasis original) to a in is also an insufficient in n n n n n n Although jury’s “... verdict parte Empey, Id. at 876. Accord: Ex 757 may trier of fact in certain circumstances (mak- (Tex.Cr.App.1988) finding being constitute an affirmative entering ing finding is not affirmative find- made, Polk, supra; necessary for an ing; separate must enter separate- affirmative to be entered specific deadly weap- ly specifically in and, weapon if on was used or exhibited the trial court.” “firearm,” that find- must enter also). ing Id. at 142.6 parte Hughes, Accord: Ex (Tex.Cr.App.1987) Applying our consistent construc (affirmative finding judg not entered when in tion of the second and third sentences merely referring ment reflects verdict Brooks, § 3g(a)(2), Hughes, determined in
weapon; “separate specific must enter Empey, may Poe and all while we finding” in to recitation addition acknowledge recognize and the three recita adjudicated). of offense judgment factually tions describe convicted, conducted much the same anal offense of which still Court Poe, ysis that the trial court did not we must conclude 393-394, allege and the found defendant caused Id. at n. 1. shooting person "by the death a him with appeals distinguished 6. The court of Brooks on se, gun." deadly weapon per While not a Brooks ground the murder, it "involves a conviction for gun deadly weapon surely confirmed his proven without under "the manner of its use or intended use" that a was used.” Hooks v. Code, 1.07(a)(ll)(B). Never- V.T.C.A. Penal supra at 645. theless, because the trial court did enter an not Court proposition may this While that be true in the ab- stract, improper determination of the facts in Brooks are that the indictment relief from cause; specific “a separate of his thus of the trial finding” below that void. deadly weapon during “used a the commis- Accordingly, of the court of of [the]
sion offense.”7 reversed, appeals is and the is remand- cause Therefore, appel- will not ed to the court of consider operate point of error. a bar facts lant’s second
APPENDIX AND THE OF NOT JUDGMENT PROBATION-TRIAL BEFORE COURT-PLEA GUILTY- THE #3 OF COUNTY, MINUTES OF CRIMINAL DISTRICT COURT DALLAS TEXAS
NO. sh F-90-05062-VJ 259/79 THE STATE TEXAS TERM, OF April VS. May 10,
CASSANDRA YOLANDA HOOKS JUDGMENT having been in the above and numbered for Defendant indicted entitled cause felony third the indictment. DW being this cause called the State her assistant Criminal District John Nelms trial, appeared by Attorney being and the Defendant Cassandra Yolanda Hooks and his counsel Irwin also Walter appeared person present, right writing having both announced and the Defendant in his waived parties ready *5 jury, being of trial and of of such waiver with the consent the Court and now entered record on the minutes by approval being of the Court with consent of the Criminal District of Dallas and such waiver the and Attorney County, approval writing, signed in in before the Texas, him, herein, and filed the of this cause the Defendant entered his by papers plea arraigned charge and in to and indictment; defendant was Court NOT GUILTY the contained the duly pleaded having the Court heard the the of Not the evidence read, thereto, submitted, indictment defendant’s plea Guilty argument guilty charged. of as counsel, found the defendant guilty IT IS FOUND AND BY THE that Defendant is of the COURT, felony THEREFORE ADJUDGED the said aggravated degree charged assault, of offense third as the indictment. DW felony and_— October, as found of Court, 1990, the the said Defendant committed said offense on the 16th by _further being adjudged heard the confinement Court, evidence the further Court that he be by punished by by $300,00, in the Texas of 10 YEARS A FINE that the of Texas do have Corrections for AND OF State Department and recover Defendant in this for will and that said issue; of the said all costs which execution prosecution expended, is to to await and it is herein; Defendant remanded the Sheriff of Dallas the further order of the Court County, Judgment further ordered the Court the of sentence of the of conviction of the herein shall Court by imposition during YEARS, for a of 10 and the Defendant on Probation the of time fixed the suspended period placed period by governing to be the Court in accordance of the law Adult Court, the conditions determined with the by provisions of Probation said State. eligibility disposing his based on recitations firmed those of parole solely representations the verdict. Id. at contention did. [3], as it accurate, But even the if observation by 7. From that conclusion it is the apparent being the court of is beside appeals point decision of the court of in this cause does appeals again Regardless here: of how the parte Ex conflict with one reason decision in the was con describe offense of which defendant Lucke, the headnote facts of case upon victed, to the must preclude probation with this except practically square one — reflect a of an affir separate and'specific guilty bargain. Lucke in a pled plea or exhibited that defendant used parte believed that Ex The court of appeals during the of the Lucke, Hughes and Ex both "differ flight there offense or immediate felony our not that] from case find [in be, and, as the if it be a from, case may 'guilty charged as the defendants in the indict- well. contain that as must Hughes ment.' 645. However, Hooks at of 3g(a)(2). forms 42.12, See, judgment went far beyond boilerplate Texas judgments & Blackwell, in McCormick adjudged recitation; instead, it in detail “that §§ and Trial Manual 59.- Criminal Forms 59.01, burglary guilty defendant of the 728, at 59.05 and 7 Texas Practice building theft while armed intent to commit see Reed 731, 733, 737; examples, pistol with a to-wit: a ...”— 357, at wrongly which this said was Court — Fort interpreted Worth no PDR. The at 871. Because neither asserts respective in Lucke party it but does failed quote show, brief, the record in this cause recite that Lucke contends that because "the judge enter the declined to alleged used "simply indictment of a deadly weapon, judgment,” additional the use of a deadly weapon, required Lucke, alleged we no reason to in the indict- guilty as in see and he supra pleaded ment,” grant grant our review to consider sepa the court was authorized expand Poe must have con- rate See question. supra probation;
H5 It appearingto understanding English language, Fine the Court that the Defendant is of the mentally competent is to be PAID/PROBATED. on as heretofore Court said Defendant and his counsel Defendant presence probation proceeded place determined the Court. by adjudged guilty IT THE THE to be Defendant, IS ORDER OF that the said who has been Court COURT, by assault a third in the indictment. DW has for 10 whose been assessed the Court at confinement in the Texas of Corrections by punishment Department YEARS, A in accordance YEARS AND FINE OF in this said cause be on for a of 10 placed probation period to the Court that the ends of $800.00 justice governing appearing with the of the law Adult Probation of said it provisions suspending and the will Defendant, best interests as well as the be subserved by imposition public, placing sentence herein the Defendant probation. IT THEREFORE AND BY THE that the of sentence ORDERED, COURT, IS ADJUDGED DECREED imposition for a herein be and the same is and that the Defendant be and he is hereby suspended hereby placed probation subject YEARS, law and the terms and conditions of this date the Court by period served imposed the Defendant the Clerk of the Court. upon Judgment.
Conditions of Probation are attached hereto and are for all as a incorporated part Court Costs assessed $84.50. (s) Mark Tolle JUDGE BAIRD, Judge, dissenting. bodily injury by with imminent use of the said majority ignores plain Because
wording of Tex.Code Crim.Proc.Ann. art.
judge
The
reflects that the trial
3g(a)(2),
respectfully
42.12
dissent.
“aggravated
assault
degree felony
a third
in the in-
ag
convicted
dictment. DW.”2
gravated
Tex.Penal Code Ann.
22.-
02(a)(4),
punishment
and assessed
at confine
appeal appellant contended the trial
years, probated.
ment for ten
grant probation
had
*6
Appeals
found the
was void and
and sentence were
State,
reversed. Hooks v.
person commits assault as defined in Sec- instances pause to note that some person: tion 22.01 of this code and the finding an will arise as a matter If the trier of fact finds law. (4) uses a pistol has been used in alleged: Specifically, the indictment under the circumstances de- above, it has found that a [Appellant] knowingly ... ... did ... scribed then pistol intentionally to-wit: has been used since use firearm, deadly weapon per se. omit- complainant] [citations to threaten is a [the ground indicated, all herein 1. The for review states: 2. Unless otherwise finding the author. erred in The Court supplied ineligible was for court-ordered appellant pro- bation. judge analysis entry judgment. to other The trial This would extend ted] per deadly no categorized instruments se retained discretion to do otherwise. weapons, such as a firearm.... (emphasis original). Id. Id., 693 Today judge majority holds the trial separate specific enter ‘a affir- “did not noted, alleged previously As the indictment finding.’” [Emphasis original.] mative deadly weapon; to wit: “used a Page holding ignores 113. Such the ex- firearm,” judge appel- and the trial found language 3g(a)(2) press art. 42.12 as well guilty charged lant indictment. interpreting own caselaw that article. as our judge appel- The trial could not have found majority’s an holding, Under indictment,” guilty lant “as discretionary is now used a without finding in judge trial “enter Thus, an weapon.3 the instant case affir- court’s] [the of law. In arises as a matter words, ap- other Appeals correctly interpret- indictment, pellant guilty ed, distinguished the relevant and followed an affirmative “made.” Ex was Be- from this Court. decisional (Tex.Cr.App.1988). Empey, 767 so, majority respectful- cause the fails to do Having made an ly dissent. required to “enter” that He to do otherwise. Tex. has discretion JJ., OVERSTREET, join this WHITE art. 42.12 Code Crim.Proc.Ann. opinion. provides:
... under this
subdivision, the trial court shall of the court. On court shall en- 42- art.
ter that its 3g(a)(2). *7 Poe, In Ex CORP., Appellant, VE App.1988), we held: [A]fter ... made fact,
by the trier of shall be YOUNG, Appellee. & ERNST the trial court.
No. 2-92-108-CV. stated, previously As Fort Worth. clearly that the trial 3[g](a)(2), mandates March used or exhibited offense, during the of an once 30, 1993. Rehearing March Overruled fact the trier of makes a case, per present finding as In the Polk. undoubtedly of fact made such an
the trier this determina- Once Hallman, T. Su- Kelly, Hart & Jonathan had been tion Worth, der, appellant. by making proper Fort required to reflect this Shaw, did not compare, guilt lesser included 3. See weapon. require (Tex.Cr.App.1988), use of a in which the trial court