Fann v. State

OPINION ON STATE’S MOTION FOR REHEARING

W.C. DAVIS, Judge.

On original submission we held that although the trial judge assessed punishment, he had no authority to make an affirmative finding that appellant used or exhibited a deadly weapon when no such finding was made by the jury at the guilt-innocence stage. We granted the State’s motion for rehearing to address the issue of whether the trial judge had authority to make such an affirmative finding.

In Flores v. State, 690 S.W.2d 281 (Tex.Cr.App.1985) we discussed this issue and stated:

An affirmative finding by the trial court would still have been appropriate in this case, however, because the trial court was the trier of facts at the punishment stage of the trial. The appellant did not elect to have the jury set his punishment. As the trier of facts, the trial court had the power to add the affirmative finding to the judgment if the facts showed and he believed that the appellant himself used or exhibited a deadly weapon during the commission of this offense. This Court has approved this procedure. Polk v. State, [693] S.W.2d [391] (No. 294-84, May 22, 1985).

Also, in Polk v. State, 693 S.W.2d 391 (Tex.Cr.App.1985) we stated that the issue of an affirmative finding may be made by special issue submitted at the punishment stage. We noted that the trier of fact makes affirmative findings on special issues submitted at the punishment stage of a capital murder trial. See Art. 37.071, V.A.C.C.P. Thus, “[F]or the purposes of Art. 42.12, supra, an affirmative finding may be made if, during the punishment stage of trial, the trier of fact is presented with and responds in the affirmative to a special issue regarding the defendant’s use or exhibition of a deadly weapon or firearm during the commission of the offense.” Polk, 693 S.W.2d at 394. Consistent with Flores, supra, and Polk, supra, we hold that where, as in the instant case, the trial judge is the trier of fact at the punishment stage and he has heard evidence on the issue, he has the authority to make an affirmative finding as to the use or exhibition of a deadly weapon if the jury has not decided the matter. By including such an affirmative finding in the judgment, the court, in essence, responds to the special issue concerning the use or exhibition of a deadly weapon.

When the punishment hearing is held before the trial judge, the trial judge is the trier of fact as to the punishment issues. An affirmative finding can be and *605is perhaps more suited to be a punishment issue. See Polk, supra; see Art. 42.12, Sec. 3f, and Sec. 15(b), V.A.C.C.P.; see also Davis v. State, 684 S.W.2d 201, 208 (Tex.App.—Houston [1st] 1984).

Neither Ex Parte Thomas, 638 S.W.2d 905 (Tex.Cr.App.1982) nor Barecky v. State, 639 S.W.2d 943 (Tex.Cr.App.1982) conflict with our holding. In Barecky we explicitly stated that the affirmative finding “... must be made by the jury when the jury is the trier of fact.” (emphasis added) See also Ex parte Nino, 659 S.W.2d 436 (Tex.Cr.App.1983).

Ex Parte Thomas, supra, was a case in which the jury was the trier of facts at the guilt-innocence stage and at the punishment stage of trial. Therefore, the trial judge did not have the authority to make an affirmative finding on an issue of fact. Polk, supra.

The trial court in the instant case had authority to make the affirmative finding because the court was the trier of fact at the punishment stage. The judgment should not be reformed as it is correct as originally rendered. The State’s motion for rehearing is granted and the judgment of the trial court is affirmed.

ONION, P.J., dissents. CLINTON, J., not participating.