NO. 07-00-0252-CR

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL D

	APRIL 26, 2001

	______________________________

	KEVIN EUGENE TUCKER,

			Appellant

	v.

	THE STATE OF TEXAS, 

			Appellee

	_________________________________

	FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

	NO. 41,797-A; DAVID L. GLEASON, PRESIDING

	_______________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.

	Kevin Eugene Tucker (appellant) appeals from a final judgment under which he was

convicted of forging a financial instrument.  Normally, a conviction for that offense would

constitute a state jail felony.  However, the State endeavored to enhance the penalty by

including in the indictment and purporting to establish at trial that appellant had been

convicted of a felony made manifest by a judgment containing an affirmative finding that

a deadly weapon was used or exhibited.  Through one point of error, appellant contends

that the “State’s evidence was legally and factually insufficient to prove that [his] prior felony conviction used to enhance his current charge contained an ‘affirmative finding’ of

the use of a deadly weapon.”  We sustain the point, reverse the judgment, and remand the

cause.

	Authority

	The standard of review applicable to allegations of legal and factual insufficiency

are well-settled and need not be reiterated.  We find it adequate to merely refer the

litigants to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and King v. State, 29 S.W.3d 556, 562-563 (Tex.Crim.App.2000) for a discussion of same.

	Next, penal statute dictates that “. . . an individual adjudged guilty of a state jail

felony shall be punished for a third degree felony if it is shown on the trial of the offense

that . . . the individual has previously been finally convicted of any felony . . . for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure.”  Tex. Pen. Code Ann. §12.35(c)(2)(B) (Vernon 1994) (emphasis supplied).  Next, §3g(a)(2) of art. 42.12, prohibits one from being granted community

supervision

	when it is shown that a deadly weapon as defined in Section 1.07 , Penal	

Code, was used or exhibited during the commission of a felony offense or	

during immediate flight therefrom, and that the defendant used or exhibited

the deadly weapon or was a party to the offense and knew that a deadly

weapon would be used or exhibited.  On an affirmative finding under this	

subdivision, the trial court shall enter the finding in the judgment of the court

	. . . .

Tex. Code Crim. Proc. Ann. art. 42.12, §3g(a)(2) (Vernon Supp. 2001) (emphasis supplied).  

	In determining what constitutes an affirmative finding for purposes of §3g(a)(2), our Court of Criminal Appeals took care to distinguish between a finding by the fact-finder that

a deadly weapon was used and the inclusion of that finding by the court in its subsequent

judgment .  See, e.g., Hooks v. State, 860 S.W.2d 110, 113 (Tex.Crim.App. 1993) (quoting Ex parte Poe, 751 S.W.2d 873, 875-76 (Tex.Crim.App.1988)).  Both are needed to satisfy the terms of §3g(a)(2).  Ex parte Poe, 751 S.W.2d at 875-76.  Thus, once the fact-finder determines that a deadly weapon was utilized or exhibited, it is encumbent upon the court

to affirmatively express that finding in its judgment.  Furthermore, the court must do so by

something other than the mere “recitation of the offense in the judgment with the words

‘deadly weapon’, ‘firearm used’, or other similar phrases added to the offense . . . .”  Ex parte Brooks, 722 S.W.2d 140, 142 (Tex.Crim.App.1986) (accord Ex parte Poe, 751 S.W.2d at 876 (reiterating the statement in Brooks)).  So too must it do more than simply reiterate in the judgment the jury’s verdict even if that verdict mentions the use or exhibition

of a deadly weapon.  Ex parte Brooks, 722 S.W.2d at 142; see Ex parte Poe, 751 S.W.2d at 875 (holding that the court did not satisfy 3g(a)(2) by incorporating in its judgment the

phrase “‘Murder, to-wit Handgun’”).  Rather, a separate and specific finding expressly

disclosing that a deadly weapon was so used or exhibited must be included in the decree. 

Hooks v. State, supra; Ex parte Poe, supra; Ex parte Brooks, supra.       

	That we discuss Poe, Brooks, and Hooks, is important given the wording of §12.35(c)(2)(B) of the Penal Code.  The latter provision speaks in terms of a “judgment contain[ing] an affirmative finding under Section 3g(a)(2).”   (emphasis added).  In so

speaking, the provision focuses not on the existence of a fact-finder affirmatively finding

that a deadly weapon was used or exhibited but on the explicit inclusion of the fact finding in the judgment.  And, that being its focus, it effectively mirrors that portion of 3g(a)(2) also

requiring inclusion of such a finding in the judgment.  Consequently, Poe, Brooks, Hooks and their progeny provide guidance in determining when such a finding has satisfactorily

been stated in the judgment not only for purposes of §3g(a)(2) of the Code of Criminal

Procedure but also §12.35(c)(2)(B) of the Penal Code.

	Application of Authority

	The only evidence of a “judgment contain[ing] an affirmative finding under Section

3g(a)(2)” at bar appears in appellant’s confession and the pen pack admitted at trial.  As

to the former, appellant executed a judicial confession wherein he attested:

	I, defendant, state that I have read the indictment . . . filed in this case and

	that I committed each and every allegation it contains.  I am guilty of the	

offense alleged as well as all lesser included offenses.  I swear to all the	

foregoing and I further swear that all testimony I give in this case will be 	the

truth . . . .

Furthermore, the indictment not only charged him with forging a check.  It also contained

the allegation that appellant was “finally convicted of the felony offense of Aggravated

Battery (Deadly Weapon) in cause no. CRCR 91-1626/91-1628 of the Second Judicial

District Court of Bernalillo County, New Mexico on the 27th day of August, 1997.”  So,

through his confession, appellant not only admitted that he committed the crime charged

in the indictment but also that he was previously convicted of “Aggravated Battery (Deadly

Weapon).”.  Yet, neither the allegation nor anything else in the indictment mentions the

existence of a judgment which contains a separate and specific affirmative finding that

appellant used or exhibited a deadly weapon while committing the New Mexico crime.  At

most, the document describes the offense for which appellant was convicted and, in describing that offense, incorporates the parenthetical “(Deadly Weapon).”.  Yet, as we

were told in Brooks, the mere recitation of the offense accompanied by the words “deadly weapon” does not constitute the inclusion in a judgment of an affirmative finding

concerning the use of a deadly weapon.  Ex parte Brooks, 722 S.W.2d at 142.  Thus, we are unable to hold that appellant’s confession provided any evidence satisfying the

requirement of §12.35(c)(2)(B).

	  As to the pen pack, included therein are several documents containing the title

“Order and Commitment” or some variation thereof.  Like the State’s indictment, each

expresses that he was convicted of three counts of  “Aggravated Battery (Deadly

Weapon).”.  However, nowhere else in the documents is there a separate affirmation

distinctly indicating that a deadly weapon was used or exhibited during the crime or

anyone’s flight therefrom.  Furthermore, the holding in Brooks prevents us from deeming the phrase “Aggravated Battery (Deadly Weapon)” such an affirmative finding for purposes

of §12.35(c)(2)(B).  Again, the mere recitation of the offense accompanied by the words

“deadly weapon” is not enough.  Ex parte Brooks, 722 S.W.2d at 142.

	In sum, the record is replete with evidence that appellant committed an offense in

New Mexico described as “Aggravated Battery (Deadly Weapon).”.  And, it is arguable that

one could reasonably infer from the phrase that the fact-finder decided as a matter of fact that a deadly weapon was somehow involved in the crime.  Yet, as per Hooks, Poe, Brooks and like precedent, there is a difference between the fact-finder determining that the

accused used or exhibited a deadly weapon and the court including in the judgment an

affirmative finding that a deadly weapon was used or exhibited.  Furthermore, §12.35(c)(2)(B) focuses upon the existence of a prior judgment containing an affirmative

finding that a deadly weapon was used or exhibited (as opposed to the fact-finder merely

determining as a matter of fact that such a weapon was so involved), and no evidence of

record established that the New Mexico decrees were of that ilk.  So, we conclude that the

evidence was and is legally insufficient to support the decision to enhance appellant’s

conviction from a state jail felony to a felony of the third degree.1  

	Accordingly, we reverse that portion of the judgment enhancing appellant’s

conviction to a third degree felony “pursuant to Sec. 12.35(c)(2)(B)” and remand the cause

for a new punishment hearing.        

							Brian Quinn

							   Justice

Publish.