dissenting.
Because the majority ignores the plain wording of Tex.Code Crim.Proc.Ann. art. 42.12 § 3g(a)(2), I respectfully dissent.
The trial judge convicted appellant of aggravated assault, Tex.Penal Code Ann. § 22.-02(a)(4), and assessed punishment at confinement for ten years, probated. The Court of Appeals found the judgment was void and reversed. Hooks v. State, 838 S.W.2d 643 (Tex.App.—Dallas 1992). We granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in holding that the trial judge made and entered an affirmative finding appellant used or exhibited a deadly weapon under to Article 42.12, § 3g(a)(2). If such a finding was made, appellant was not eligible for court-ordered probation.1 I would affirm the judgment of the Court of Appeals.
Appellant was indicted for aggravated assault under § 22.02(a)(4), which provides:
(a) A person commits an offense if the person commits assault as defined in Section 22.01 of this code and the person:
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(4) uses a deadly weapon.
Specifically, the indictment alleged:
... [Appellant] ... did ... knowingly and intentionally use a deadly weapon, to-wit: a firearm, to threaten [the complainant] with imminent bodily injury by use of the said deadly weapon.
The judgment reflects that the trial judge found appellant guilty of “aggravated assault a third degree felony as charged in the indictment. DW.”2
On appeal appellant contended the trial judge had no authority to grant probation and that the judgment and sentence were void as a matter of law. The Court of Appeals agreed. Hooks v. State, 838 S.W.2d at 645.
In Polk v. State, 693 S.W.2d 391 (Tex.Cr.App.1985) we held:
“... if the indictment by allegation specifically places the issue before the trier of fact (i.e. “... by stabbing him with a knife, a deadly weapon_”), then an affirmative finding is de facto made when the defendant is found guilty “as charged in the indictment.”
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We pause to note that in some instances an affirmative finding will arise as a matter of law. If the trier of fact finds that a pistol has been used in the commission of the offense under the circumstances described above, then it has found that a deadly weapon has been used since a pistol is a deadly weapon per se. [citations omit*116ted] This analysis would extend to other instruments categorized as per se deadly weapons, such as a firearm.... ”
Id., 693 S.W.2d at 394.
As previously noted, the indictment alleged that appellant “used a deadly weapon; to wit: a firearm,” and the trial judge found appellant guilty as charged in the indictment. The trial judge could not have found appellant guilty “as charged in the indictment,” without finding that appellant used a deadly weapon.3 Thus, in the instant case an affirmative finding arises as a matter of law. In other words, when the trial judge found appellant guilty as charged in the indictment, an affirmative finding was “made.” Ex parte Empey, 767 S.W.2d 771 (Tex.Cr.App.1988). Having made an affirmative finding, the trial judge was required to “enter” that finding. He has no discretion to do otherwise. Tex. Code Crim.Proc.Ann. art. 42.12 § 3g(a)(2) provides:
... On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment, art. 42-12, § 3g(a)(2).
In Ex parte Poe, 751 S.W.2d 873 (Tex.Cr.App.1988), we held:
... [A]fter an affirmative finding is made by the trier of fact, the finding shall be entered in the judgment by the trial court.
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As previously stated, Article 42.12, § 3[g](a)(2), clearly mandates that the trial judge enter in the judgment a finding that a deadly weapon was used or exhibited during the commission of an offense, once the trier of fact makes a proper affirmative finding as per Polk. In the present case, the trier of fact undoubtedly made such an affirmative finding. Once this determination had been made the trial judge was required to reflect this by making a proper entry in the judgment. The trial judge retained no discretion to do otherwise.
Id. at 875-876 (emphasis in original).
Today the majority holds the trial judge “did not enter ‘a separate and specific affirmative finding.’” [Emphasis in original.] Page 113. Such a holding ignores the express language of art. 42.12 § 3g(a)(2) as well as our own caselaw interpreting that article. Under the majority’s holding, the entry of an affirmative finding is now discretionary and the trial judge may “enter that finding in [the court’s] judgment.” Id.
The Court of Appeals correctly interpreted, distinguished and followed the relevant decisional authority from this Court. Because the majority fails to do so, I respectfully dissent.
WHITE and OVERSTREET, JJ., join this opinion.. The State’s ground for review states:
The Court of Appeals erred in finding that appellant was ineligible for court-ordered probation.
. Unless otherwise indicated, all emphasis herein is supplied by the author.
. See and compare, Ex parte Shaw, 724 S.W.2d 75, 77 (Tex.Cr.App.1988), in which the trial court found guilt of a lesser included offense did not require a finding of use of a weapon.