Williams v. State

970 S.W.2d 566 (1998)

Michael Thomas WILLIAMS, Appellant, v. The STATE of Texas.

No. 1198-97.

Court of Criminal Appeals of Texas, En Banc.

July 1, 1998.

Robert Ford, Fort Worth, for appellant.

Tim Curry, Criminal District Attorney, Charles M. Mallin, Helena F. Faulkner, David M. Curl and Anne E. Swenson, Assistant District Attorneys, Fort Worth, Matthew Paul, State's Attorney, Austin, for State.

Before the court en banc.

McCORMICK, Presiding Judge, delivered the opinion of the Court.

A jury convicted appellant of the felony offense of driving while intoxicated and sentenced him to fifteen years' confinement. The Court of Appeals affirmed the conviction but ordered a new trial on punishment holding that the evidence was insufficient to support a finding that appellant used or exhibited a deadly weapon during the commission of the offense. Williams v. State, 946 S.W.2d 432 (Tex.App.Fort Worth 1997). We granted discretionary review on grounds related to the Court of Appeals' decision on the deadly weapon issue (grounds one through five) and the remedy it provided (grounds six and seven).

We have decided our decision to grant discretionary review on grounds one through five and ground seven was improvident. In ground six, the State argues the Court of Appeals erred by ordering a new trial on punishment instead of deleting the deadly weapon finding. We agree. The proper remedy is to delete the deadly weapon finding. See, e.g., Narron v. State, 835 S.W.2d 642 (Tex.Cr.App.1992). Therefore, the deadly weapon finding in the trial court's judgment is ordered deleted.

We sustain ground six of the State's petition, reverse the judgment of the Court of Appeals, and affirm the judgment of the trial court as reformed. Grounds one through five and ground seven of the State's petition for discretionary review are dismissed as improvidently granted.