NELSON ANTONIO ESPINAL, Appellant v. STATE OF TEXAS, Appellee

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AFFIRM; Opinion Filed December 18, 2006.
                                
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01600-CR
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NELSON ANTONIO ESPINAL, Appellant
V.
STATE OF TEXAS, Appellee
.............................................................
On Appeal from Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F04-72157-SK
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OPINION
Before Justices Wright, O'Neill, and Lang-Miers
Opinion By Justice Lang-Miers
        Appellant Nelson Antonio Espinal pleaded nolo contendere to the charge of aggravated kidnaping, and the trial court convicted him of aggravated kidnaping and made a deadly weapon finding. See Tex. Pen. Code Ann. § 20.04. The trial court sentenced him to ten years' confinement. On appeal, appellate counsel examined five possible grounds for relief and concluded that there were no arguable grounds for reversal, citing Anders v. California, 386 U.S. 738 (1967). Counsel did, however, argue that we should reform the judgment to delete the deadly weapon finding. In response, the State filed a motion to strike appellant's brief, arguing that counsel had violated the briefing requirements for a frivolous appeal. We denied the State's motion, treated appellant's brief as a traditional brief on the merits, and ordered the State to file a brief. We affirm.         In his only point of error, appellant argues that the written judgment including a deadly weapon finding is erroneous because the trial court failed to orally pronounce the finding. He further argues that we cannot assume that appellant was convicted under the paragraph with a deadly weapon allegation because the trial court did not specify the paragraph under which it found appellant “guilty as charged,” and only one of the three charged paragraphs contained a deadly weapon allegation. The State argues in response that the trial court is not required to orally pronounce a deadly weapon finding and, further, that when the trial court is the factfinder for both phases of trial, it has the authority to make a deadly weapon finding without specifying the paragraph under which it found the defendant guilty. We agree.
        The expectation of having the oral pronouncement match the written judgment applies only to sentencing issues, like the term of confinement and whether the defendant will serve multiple sentences concurrently or consecutively. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005) (citing Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) and Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998)). A deadly weapon finding is not part of the sentence. State v. Ross, 953 S.W.2d 748, 751 (Tex. Crim. App. 1997). While a deadly weapon finding does affect a defendant's eligibility for probation and parole, it does not alter the range of punishment to which the defendant is subject or the number of years assessed. Huskins, 176 S.W.2d at 820 (citing Tex. Gov't Code Ann. §§ 508.145, 508.149, 508.151). Consequently, a trial court is not required to orally announce a deadly weapon finding if the face of the indictment clearly reflects a deadly weapon allegation. Id. When the trial court is the factfinder at both stages of trial, it has the authority to make an affirmative deadly weapon finding even though it did not specify the paragraph under which it found the defendant guilty. Mixon v. State, 781 S.W.2d 345, 345-46 (Tex. App.-Houston [14th Dist.] 1989 (citing Fann v. State, 702 S.W.2d 602, 605 (Tex. Crim. App. 1985) (op. on reh'g) (deleting deadly weapon finding that judge made when jury determined guilt and the indictment did not allege a deadly weapon nor did the jury receive an instruction on the issue)), aff'd, 804 S.W.2d 107 (Tex. Crim. App. 1991) (adopting part of court of appeals' opinion holding that a factfinder may assess a deadly weapon finding even if the indictment does not specifically identify the weapon).         
        Appellant relies on Flores v. State, 690 S.W.2d 281 (Tex. Crim. App. 1985) and Patterson v. State, 950 S.W.2d 196 (Tex. App.-Dallas 1997, pet. ref'd) to support his contention that a factfinder may not make a deadly weapon finding following a general verdict. In both of these cases, the jury assessed guilt, and the trial court later made the deadly weapon finding. In Flores, the court of criminal appeals reformed the judgment and deleted the judge-made deadly weapon finding because the jury assessed a general verdict without specifying whether the defendant was guilty as a party or a principal. In Patterson, this Court reformed the judgment and deleted the judge-made deadly weapon finding because the jury assessed a general verdict on a multi-paragraph indictment. In this case, the trial court was the factfinder at both guilt and punishment, found appellant guilty, referred back to the indictment when he pronounced appellant “guilty as charged,” and the indictment contained a paragraph with a deadly weapon allegation. The trial court was not required to orally pronounce the finding and had the authority to make it. We overrule appellant's issue.
CONCLUSION
 
         We conclude that appellant has failed to demonstrate that the trial court erred in making a
 
 
 
 
deadly weapon finding. Tex. R. App. P. 43.2(a).
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051600f.u05
        
 
 

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