Nigel Edwards v. The State of Texas--Appeal from 54th District Court of McLennan County

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IN THE

TENTH COURT OF APPEALS

 

No. 10-99-163-CR

 

NIGEL EDWARDS,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 54th District Court

McLennan County, Texas

Trial Court # 97-877-C

OPINION DENYING MOTION FOR REHEARING

The State s brief on original submission argued that if the trial court erred in finding that Edwards used a deadly weapon, the error was harmless because the nature of Edwards conviction is such that he will suffer all of the same consequences of the deadly weapon finding. // However, as our opinion stated, we have recently rejected a similar argument. Rachuig v. State, 972 S.W.2d 170, 179 (Tex. App. Waco 1998, pet. ref d). In Rachuig, we said:

We do not presume to know the effect this improper finding might have on [the defendant] s parole eligibility under the guidelines established by the Board of Pardons and Paroles. See Tex. Gov t Code Ann. 508.144 (Vernon Supp. 1998). Moreover, article 37.12 requires the court to enter the proper judgment. Tex. Code Crim. Proc. Ann. art. 37.12 (Vernon 1981). Such a judgment must accurately recite any deadly weapon findings. Id. art. 42.01, 1(21), art. 42.12, 3g(a)(2) (Vernon Supp. 1998); cf. Asberry v. State, 813 S.W.2d 526, 529-31 (Tex. App. Dallas 1991, pet. ref d) (appellate court modified judgment to reflect jury s deadly weapon finding which trial court had improperly failed to include in judgment).

 

Id. Consequently, we applied the same reasoning in this case and sustained Edwards sole issue. Accordingly, the judgment was modified to delete the deadly weapon finding, and we affirmed the judgment as modified.

The State s motion for rehearing asserts that we erred in finding that Edwards suffered harm from the trial court s erroneous deadly weapon finding. The State relies on Upson v. State, for the proposition that a defendant convicted of a Section 3g offense does not suffer harm from an erroneous deadly weapon finding. 949 S.W.2d 531, 533-34 (Tex. App. Houston [14th Dist.] 1997, no pet.). In Upson, the Houston court stated that an error is harmless when an appellate court determines beyond a reasonable doubt that it has made no contribution to the conviction or punishment. // Id. at 533.

However, even if the error were harmless, we have the power and duty to correct and reform the judgment to speak the truth when we have the necessary data and information to do so. Satterwhite v. State, No. 01-97-00955-CR, slip op. at ___, 2000 WL 964641, at *3 (Tex. App. Houston [1st Dist.] July 13, 2000, no pet. h.). If a judgment improperly reflects the findings of a jury, the proper remedy is reformation of the judgment. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Joseph v. State, 3 S.W.3d 627, 643 (Tex. App. Houston [14th Dist.] 1999, no pet.).

Accordingly, we deny the State s motion for rehearing.

BILL VANCE

Justice

 

Before Chief Justice Davis

Justice Vance, and

Justice Gray

Motion for rehearing denied

Opinion delivered and filed July 19, 2000

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