Nos. 05-08-01487-CR, 05-08-01488-CR
Opinion issued February 26, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause Nos. F08-51699-SY and F08-51700-PY.
Before Justices BRIDGES, LANG and LANG-MIERS.
Opinion By Justice BRIDGES.
Appellant Josue Israel Gonzalez appeals from his separate convictions for burglary of a habitation and aggravated assault with a deadly weapon and accompanying sentences. We affirm.
Background
Around 11:30 a.m. on February 12, 2008, Cesar Villa was at home with his father, Serafin Villa, and a neighbor girl. Cesar heard a knock on the door and looked outside without answering the door. Cesar saw two men, one of which was appellant, that he did not recognize. Serafin answered the door. After opening the door, Serafin stepped outside and the men asked him if they could borrow a gas can. Serafin told them they could use a gas can that was next to the house. Serafin turned around to go back inside and the other man got behind him, put a gun against his back, and told him to go inside the house. Cesar was looking out the window and saw the man pull a gun on his father. Cesar ran to the door, locked it, and then triggered the security alarm inside the house. He ran to the phone to call the police, but the phone was not working. Then, he ran to his bedroom to locate his cell phone and called 911. As Cesar was coming around the corner back into the living room, appellant and the other man kicked in the door and entered the house with Serafin. Appellant told his partner with the gun to "shoot that nigger." Cesar begged for his life. Appellant and his partner placed Cesar and Serafin face down on the kitchen floor. The security alarm continued to beep and the man with the gun told Cesar to turn it off. Cesar got up and when the gun was pointed away from him, he grabbed the gun, trying to get it. The gun fired into the kitchen, striking the refrigerator. Appellant noticed the cell phone, picked it up and ended the call to 911. As the men struggled over the gun, appellant left Serafin lying on the kitchen floor. Appellant began hitting Cesar in the head with his fists. Serafin got up slowly, went into his bedroom and retrieved his gun. When the men noticed Serafin with a gun, they fled the house. Serafin fired his gun in the direction of the assailants and a bullet struck appellant in the buttocks. Cesar chased the men, holding the gun he had taken from them. Cesar saw the two men get into a truck and drive away. A neighbor drove up and allowed Cesar to borrow her car. Cesar followed the truck and wrote the license plate number on his hand. He saw a police officer and told him what had just transpired, giving the officer the gun and license plate number. Meanwhile, the police called Cesar's cell phone in response to the 911 call he had made. Serafin answered the phone and told the police what happened. Since appellant was struck by a bullet as he fled the scene, he went to Baylor Hospital's emergency room and was taken into custody. Analysis
Appellant raises seven issues on appeal. First, he contends the trial court erred by including an affirmative finding on the use of a deadly weapon in the judgment for cause number F08-51700-PY (aggravated assault with a deadly weapon), when the jury made no affirmative finding in its verdict. In his second and third issues, appellant argues the State's closing argument was an improper plea to satisfy community demands. In issues four and five, appellant contends his sentence is illegal in cause number F08-51699-SY (burglary of a habitation) and in cause number F08-51700-PY (aggravated assault with a deadly weapon) because there is no finding that the enhancement paragraph was true. In his last two issues, appellant asserts the jury charge for both offenses erroneously authorized a first-degree felony punishment without requiring a finding of true on the enhancement paragraph. We first turn to appellant's contention that the deadly weapon finding contained in the judgment for aggravated assault with a deadly weapon was improper since the jury did not make a specific finding that appellant used or exhibited a deadly weapon. The indictment, contained in the record before us, alleged appellant used and exhibited a deadly weapon, specifically a firearm, during the commission of the assault. Appellant pleaded guilty to the offense of aggravated assault with a deadly weapon and requested a jury assess his punishment. The jury then convicted appellant of aggravated assault "as charged in the indictment." To obtain a conviction for aggravated assault with a deadly weapon, the State must prove the defendant used or exhibited a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02 (a)(2) (Vernon 2010). In felony cases, a plea of guilty before the jury admits the existence of all elements necessary to establish guilt and, in such cases, the introduction of evidence by the State is only to enable the jury to determine punishment. Stahle v. State, 970 S.W.2d 682, 688 (Tex. App.-Dallas 1998, pet. ref'd). We conclude that, since a deadly weapon is a required element of the offense, no specific finding on the use of a deadly weapon was required by the jury. See Rivers v. State 2009 WL 3321409, *4 (Tex. App.-Houston [1st Dist.] Oct. 15, 2009) (stating the trial court may enter an affirmative finding that a deadly weapon was used when a deadly weapon is pleaded in the indictment and the jury returns a verdict of guilt as charged in the indictment). We overrule appellant's first issue. In his second and third issues, appellant contends the State's closing argument was an improper plea to satisfy community demands and constitutes reversible error. Before an appellate court can review improper jury argument, the error must be properly preserved. The record before us demonstrates appellant failed to object to the State's argument at trial. Appellant acknowledges the rule that, in order to preserve error on appeal for improper jury argument, the defendant must object to the comment and pursue the objection until the trial court rules adversely. See, e.g., Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1993); Wilson v. State, 179 S.W.3d 240, 249 (Tex. App.-Texarkana 2005, no pet.) (stating a defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling on his objection to a jury argument forfeits his right to complain about the argument on appeal). We conclude the rule applies here and overrule appellant's second and third issues. In his fourth and fifth issues, Appellant claims his sentences are illegal because there is no finding that the enhancement paragraph was true. After pleading guilty to the offenses of aggravated assault with a deadly weapon and burglary of a habitation, appellant pleaded true to the enhancement paragraph in open court for each case. In light of his plea, we conclude a formal finding was unnecessary. See, e.g., Fuller v. State, 253 S.W.3d 220, 227 (Tex. Crim. App. 2008) (stating a verdict on the guilt of a person who pleads guilty is not necessary). We overrule appellant's fourth and fifth issues. In his final two issues, appellant argues the jury charge in both cases erroneously authorized a first-degree felony punishment range without requiring a finding of true on the enhancement paragraph. As noted above, appellant entered a plea of true to the enhancement paragraph in each case. Thus, the validity of the enhancement allegation was not at issue, and there was no need to submit its validity for the jury's consideration. Howell v. State, 563 S.W.2d 933, 936 (Tex. Crim. App. 1978). The trial court, therefore, complied with its duty to properly instruct the jury as to the applicable range of punishment and there is no error in the charge. We overrule appellant's sixth and seventh issues. Having overruled all of appellant's issues, we affirm the judgment of the trial court.