Larry Lee Gilbert v. The State of Texas--Appeal from 82nd District Court of Robertson County

NO. 10-90-089-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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LARRY LEE GILBERT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 82nd Judicial District Court

Robertson County, Texas

Trial Court # 14,383

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O P I N I O N

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A jury convicted Appellant of arson and, under two enhancement paragraphs, assessed his punishment at life in prison. See Tex. Penal Code Ann. art. 28.02 (Vernon Supp. 1991). The only point on appeal is that Appellant was not given adequate notice of the State's intent to obtain a deadly weapon finding. The judgment will be affirmed.

The State alleged in the indictment that Appellant "used and exhibited a deadly weapon, to wit: an unknown burning object and [a] 16 oz. Busch beer can with gasoline" during the commission of the offense. The jury found him guilty "as charged in the indictment."

A defendant is entitled to some form of notice that the use of a deadly weapon will be a fact issue at trial. Ex parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989). Although due process does not require that such notice appear in the indictment, it "probably should appear there." Ex parte Patterson, 740 S.W.2d 766, 776 (Tex. Crim. App. 1987). Furthermore, the Court of Criminal Appeals has held that, even when the state voluntarily abandons the portion of the indictment alleging use of a deadly weapon, the indictment still provides adequate notice that the use of a deadly weapon will be an issue at trial. Grettenberg v. State, 790 S.W.2d 613, 614-15 (Tex. Crim. App. 1990).

The indictment gave Appellant adequate notice that the use of a deadly weapon would be a fact issue at trial. When the jury found him guilty "as charged in the indictment," it affirmatively found that he used or exhibited a deadly weapon during the commission of the offense. See Ex parte Beck, 769 S.W.2d at 528. Thus, the court did not err when it included a deadly weapon finding in its judgment. Point one is overruled and the judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and Justice Vance

Affirmed

Opinion delivered and filed June 13, 1991

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