James v. State

Full title: CORDNEY KEYON JAMES, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 30, 2003

Nos. 05-02-01910-CR, 05-02-01911-CR, 05-02-01912-CR, 05-02-01913-CR, 05-02-01914-CR (Tex. App. Dec. 30, 2003)

Opinion

Nos. 05-02-01910-CR, 05-02-01911-CR, 05-02-01912-CR, 05-02-01913-CR, 05-02-01914-CR

Opinion Filed December 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 282^nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-23518-S, F02-23626-S, F02-23635-S, F-02-23637-S, and F02-23639-S. Affirmed.

Before Justices JAMES, FITZGERALD and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

Appellant Cordney Keynon James, in a single criminal episode, kidnapped and robbed a family of three. He was charged with two counts of aggravated robbery and three counts of aggravated kidnapping. A jury found appellant guilty of all five offenses and assessed punishment at fifty years in prison in each aggravated robbery case and twenty years in prison in each aggravated kidnapping case. The trial court rendered five judgments on the verdicts, with the sentences to run concurrently. The trial court also entered affirmative deadly weapon findings in each judgment. On appeal, appellant complains that the trial court erred when it entered the deadly weapon findings and when it gave the jury a modified parole/good conduct time charge instruction. We affirm the trial court's judgments.

BACKGROUND

Eulalio Alcocer returned home from work on the evening of the offense and parked his car in the apartment complex parking lot. As he exited his car, three people approached him. Appellant pointed a gun to his head and demanded that Alcocer get down on the ground. The men took his money and keys. After stealing a stereo and radar detector from Alcocer's vehicle, the men asked him who was at home in his apartment. Alcocer replied that his wife and son were at home. He lead them to his apartment while one of the men held a gun to his head. He could not tell which one because the man was behind him.¹ They all entered the apartment where Alcocer's wife and one-year-old son were present. The Alcocer family was ordered to get down on the floor. Two of the men proceeded to search the apartment while the third man guarded the Alcocers with the gun. After a five to ten minute search, they took Alcocer's wife's purse and left the apartment. Later that night, when police took Alcocer to view appellant, Alcocer identified appellant as one of his assailants.

DEADLY WEAPON FINDINGS

In his first issue, appellant maintains that the trial court erred when it entered affirmative findings that he used or exhibited a deadly weapon in the three aggravated kidnapping cases. The indictments alleged alternative manner and means of committing the offenses, one of which did not allege that a deadly weapon was used or exhibited during commission of the offense, but did allege that it occurred with "the intent to facilitate the commission of the felony of Aggravated Robbery." The jury returned a general verdict of ". . . guilty of the offense of aggravated kidnapping as charged in the indictment," and no special issue regarding the use or exhibition of a deadly weapon was presented to the jury. Appellant contends that the jury did not make affirmative findings and that the trial court erred by including the findings in the aggravated kidnapping judgments. An "affirmative finding" concerning a deadly weapon is the trier of fact's express determination that a deadly weapon or firearm was actually used or exhibited during the commission of the offense. LaFleur v. State, 106 S.W.3d 91, 94 (Tex.Crim. App. 2003). Generally, an affirmative finding of a deadly weapon may be entered when the (1) indictment includes an allegation of a "deadly weapon," and the verdict states the defendant is guilty as charged in the indictment, (2) the indictment does not allege "deadly weapon," but does allege a weapon that is per se a deadly weapon, and the verdict states the defendant is guilty as charged in the indictment, or (3) the jury has affirmatively answered a special charge issue on "deadly weapon" use or exhibition. Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App. 1985). Alternatively, if the application paragraph of the charge adequately describes the use or exhibition of a deadly weapon, then the verdict of "guilty" combined with the application paragraph constitute the "affirmative finding." LaFleur, 106 S.W.3d at 98. The process of looking to the application paragraph, the indictment and the verdict for the purpose of ensuring an "express finding" should not exalt form over substance to no discernible jurisprudential purpose. Id. However, a trial court cannot enter an implied deadly weapon finding based solely upon its own assessment of the evidence and a general guilty verdict. Id. at 95. In the aggravated kidnapping cases before us, the jury returned general verdicts of guilty based upon the following indictment allegations:

[defendant] did unlawfully, intentionally and knowingly abduct . . . complainant . . . with the intent to facilitate the commission of the felony of Aggravated Robbery,

And further defendant did unlawfully, intentionally and knowingly abduct . . . complainant . . . by threatening to use deadly force, and defendant did intentionally and knowingly use and exhibit a deadly weapon, namely: a firearm, during the commission of the offense and abduction . . .

The jury also returned general verdicts of guilty of aggravated robbery based upon the following indictment allegations:

[defendant] did unlawfully then and there while in the course of committing theft . . . did then and there intentionally and knowingly threaten and place the said complainant in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to-wit: a firearm.

The application paragraphs tracked the language in the indictments. The trial court was required, based on the jury's general verdict, to enter an affirmative deadly weapon finding in each aggravated robbery judgment because the aggravated robbery indictments specifically pleaded the use and exhibition of a per se deadly weapon. See Polk, 693 S.W.2d at 394. The indictments and court's charges on the aggravated robbery cases were before the jury when it decided the aggravated kidnapping cases. The indictment and charge on the aggravated kidnapping cases specifically include alternatives in the application paragraphs that refer to "use and exhibit a deadly weapon" as well as, alternatively, "with intent to facilitate the commission of the felony of Aggravated Robbery." The court's charge defined "aggravated robbery" as "uses or exhibits a deadly weapon in the commission of the robbery." As a result, because the jury found appellant guilty of aggravated robbery in which it expressly found appellant used or exhibited a deadly weapon, the jury necessarily found that the commission of aggravated kidnapping also involved the use or exhibition of a deadly weapon. See LaFleur, 106 S.W.3d at 96. The jury's express findings in the aggravated robbery verdicts also served as express findings in the aggravated kidnapping verdicts, if that, rather than the alternative, was the basis of the verdict. We hold that the trial court did not err when it entered affirmative deadly weapon findings in the three kidnapping judgments. We overrule appellant's first issue.

GOOD CONDUCT TIME INSTRUCTION

In his second issue, appellant argues that the trial court erred when it failed to include the complete parole and good conduct time instruction in the court's punishment charge. Tex. Code Crim. Proc. Ann. Art. 37.07, § 4(a) (Vernon Supp. 2003). Article 37.07, § 4(a) requires a trial court to include a jury instruction on parole eligibility and good conduct time in cases where the punishment is to be assessed by the jury and the convicted offense is listed in article 42.12, § 3g(a)(1). This mandate applies to appellant's convictions for aggravated robbery and aggravated kidnapping. See Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 1994), Tex. Pen. Code Ann. § 20.04(b), Tex. Code Crim. Proc. Ann. Art. 42.12, § 3g(a)(1)(D),(F) (Vernon Supp. 2003). In the case before us, the trial court included the parole portion of the mandatory instruction and omitted the good conduct time portion of the instruction. Because appellant failed to object to the exclusion at trial, we review this charge error under the "egregious harm" standard established in Almanza v. State. See Jimenez v. State, 32 S.W.3d 233, 236-38 (Tex.Crim. App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1984). We agree that the complete Article 37.07, § 4 instruction is statutorily required and that it constitutes error when the trial court fails to fully comply. See Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). However, appellant is not eligible for good conduct time consideration. See Tex. Gov't Code Ann. § 508.149(a) (Vernon Supp. 2003). The excluded instruction did not misstate the law applicable to appellant nor did it mislead the jury. Nothing in the record reflects that appellant was harmed by the unobjected-to jury instruction. Appellant has failed to establish "egregious harm" — error so fundamental that it deprived him of a fair and impartial trial. See Almanza, 686 S.W.2d at 171. We overrule appellant's second and final issue. Having found no reversible error, we affirm the trial court's judgments.