Affirmed and Memorandum Opinion filed September 4, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00676-CR
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SAUL ANANIAS ALVAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 875,232
M E M O R A N D U M O P I N I O N
A jury found appellant guilty of aggravated robbery and assessed punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division and a fine of $10,000. Appellant now argues that (1) the trial court erred by entering an affirmative deadly weapon finding, and (2) the trial court erred by not explicitly applying the law of the parties in the jury charge. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and five men broke into the Quintanilla apartment. While inside, the six men bound the two Quintanilla sisters and beat their boyfriends with weapons. Appellant and the men raped the women and ransacked the apartment. They stole a truck, a large television, two stereos, a VCR, cash, credit cards, and all the jewelry on the victims and in the apartment.
At trial, one of the Quintanilla sisters testified she saw appellant in her apartment with a gun. The other sister testified appellant threatened her with death if she did not reveal her boyfriend=s password to his bank card. Because the victims were forced to lie with their faces on the floor covered with towels, they could not identify what items appellant specifically took from the apartment. Appellant objected to the jury charge arguing the application paragraph did not adequately apply the law of the parties to the facts. The trial court overruled appellant=s objection, and the jury found appellant guilty of aggravated robbery.
DISCUSSION
Appellant raises two points of error. First, he contends the trial court erred by entering an affirmative deadly weapon finding in the judgment. Second, he argues the trial court erred in the jury charge by not explicitly applying the law of the parties to the facts of the case.
I. Deadly Weapon Finding
Previously, this Court held that a trial court could not enter an affirmative deadly weapon finding if the trial court charged the jury on the law of the parties but did not submit a question asking whether the defendant used or exhibited a deadly weapon. See Pritchett v. State, 874 S.W.2d 168, 172 (Tex. App.CHouston [14th Dist.] 1994, no pet.); Mulanax v. State, 882 S.W.2d 68, 71 (Tex. App.CHouston [14th Dist.] 1994, no pet.); Tate v. State, 939 S.W.2d 738, 753B54 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d) (holding that A[i]n order for an affirmative finding to stand on the law of the parties, there must have been a specific finding that appellant knew a deadly weapon would be used or exhibited.@). Here, appellant raises this precise issue. However, recently, in an en banc opinion, we revisited this issue and held that a trial court may enter a deadly weapon finding if the jury, by its verdict, made the factual conclusion to support a deadly-weapon finding. Sarmiento v. State, 93 S.W.3d 566 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (en banc).[1]
In Sarmiento, a jury convicted appellant of aggravated robbery. See id. at 567. The jury did not make an affirmative finding that appellant used a weapon or knew a weapon would be used. Id. However, we held that the jurors first had to Abelieve beyond a reasonable doubt that appellant knew a deadly weapon would be used in the commission of the offense@ before they could find the defendant guilty. Id. at 570; see also Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985) (holding that when an indictment specifically alleges that a defendant used a deadly weapon and the jury finds the defendant guilty of the crime, the jury has made a de facto finding that the defendant used or exhibited a deadly weapon in the commission of the crime). We held, A[b]y its verdict, the jury necessarily made the factual finding to support the entry of an affirmative finding of the use or exhibition of a deadly weapon upon the judgment.@ Sarmiento, 93 S.W.3d at 570.
Here, as in Sarmiento, the State indicted appellant for aggravated robbery. The State did not present the jury with the specific question whether appellant used or knew that a deadly weapon would be used. Nonetheless, the jury through its verdict, found that appellant used or knew a deadly weapon would be used when committing the crimes. The trial court did not err when it entered an affirmative deadly weapon finding in the judgment, and we overrule appellant=s first issue.
II. Law of the Parties
Next, appellant contends the trial court erred by not explicitly applying a law-of-the- parties instruction to the facts of the case in the jury charge. Without determining that question, we find a law-of-the-parties instruction was innocuous and the trial court was not required to give that instruction.
First, this Court must determine whether the trial court was required to give an instruction on law of the parties. If ample evidence demonstrates appellant as a primary actor, the trial court is not obligated to properly charge the jury on law of the parties. See Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986) (holding that where the evidence clearly supports a defendant=s guilt as a primary actor, error in charging on the law of parties is harmless). On the other hand, if the evidence is not sufficient to sustain a conviction as a primary actor, the trial court should give an applicable law of the parties instruction. McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974). To determine whether appellant was a primary actor or was a party to the offense, we follow the guideline set forth in McCuin, which states the following:
Where the evidence introduced upon the trial of the cause shows the active participation in the offense by two or more persons, the trial court should first remove from consideration the acts and conduct of the non-defendant actor. Then, if the evidence of the conduct of the defendant then on trial would be sufficient, in and of itself, to sustain the conviction, no submission of the law of principals is required.
McCuin, 505 S.W.2d at 830; Durham v. State, 16 S.W.2d 1092, 1095 (Tex. Crim. App. 1929) (holding A[w]hen the evidence shows that the accused on trial was a principal actor in the commission of the offense, no charge on principals would be necessary, although the proof may also disclose that in doing the criminal act another took an equal part.@).
Here, removing the acts of every actor except appellant, sufficient evidence established that appellant was a primary actor. Three victims gave positive identifications that appellant was one of the six men who broke into the apartment. One of the Quintanilla sisters testified appellant brandished a gun when he first entered the apartment. Both sisters testified appellant tied their hands and covered their faces. One sister stated appellant demanded money and the password to her boyfriend=s bank account, and he threatened that she Abetter cooperate with them and give them the bank account number.@ He also said that if she Adidn=t tell them what number it was, they were going to kill [her] because the rest of them were already dead.@ The victims could not testify specifically that appellant was the individual who stole the victim=s truck, and many items from the apartment. However, they could testify that six men broke into their apartment with guns and stole all of these items. They all testified appellant was one of the six men.
We overrule appellant=s second issue, and affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed September 4, 2003.
Panel consists of Chief Justice Brister and Justices Fowler and Edelman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] In that opinion, we also overruled Pritchett, Mulanax, and Tate to the extent that those opinions contradicted Sarmiento. See Sarmiento, 93 S.W.3d at 570. Appellant relies upon Pritchett and Mulanax extensively for his argument.