DONALD WAYNE GOOD,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-87-01151-CR
DONALD WAYNE GOOD,FROM A DISTRICT COURT
 
                APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
                APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES BAKER AND WHITTINGTON
OPINION PER CURIAM
MAY 22, 1989
         Donald Wayne Good appeals his conviction for burglary of a habitation. Punishment was assessed at life imprisonment.
        Appellant has not filed a brief in this cause. Appellant has filed numerous motions and notices with this Court over the past seventeen months. In December 1987, appellant asked that the record be supplemented. This Court granted appellant's motion, and a supplemental record was filed with this Court on February 4, 1988. Appellant was also granted an extension of time to February 29, 1988 to file his brief. On February 15, 1988, appellant claimed that he had not received the material that was the subject of his motion to supplement. Pursuant to appellant's motion, this Court directed the court reporter to provide appellant with a copy of the supplemental material. During this period, appellant was also granted two more extensions of time to file his brief, making the brief due on June 6, 1988. Appellant next filed a motion for extension claiming that he had not been provided with either the transcript or supplemental transcript in this cause. On June 13, 1988, this Court granted appellant's motion for extension, and directed the trial court to make findings of fact concerning appellant's access to the transcript and supplemental transcript. The trial court made the findings of fact directed by this Court, finding that appellant had not been deprived of a statement of facts or transcript, but expressed doubt as to whether appellant had been provided a copy of the supplemental transcript. On August 29, 1988 this Court granted another extension to appellant to file his brief, and directed the trial court to provide appellant with a copy of the supplemental transcript.         
        In October and November, 1988, appellant again filed motions claiming that he had not been provided with a copy of the transcript and supplemental transcript. On November 17, 1988, this Court ordered the trial court to deliver within forty-five days of the date of the Order correct copies of both the transcript and supplemental transcript to the warden to deliver to appellant. We further ordered that appellant file his brief within seventy-five days of the date of the Order, and said that if no brief was filed by that date, the case would be submitted without appellant's brief. On December 8, 1988, this Court received an affidavit in which appellant acknowledged that he received the transcript and supplemental transcript on December 6, 1988. On January 20, 1989, appellant again filed a motion to supplement the record, claiming that the appellate record was incomplete. This Court denied his motion on February 2, 1989, and directed that he file his brief within ten days. As of the date of this opinion, appellant has tendered no brief to this Court.
        Since no brief has been filed, no contentions of error are properly before us for review. In our examination of the record we have found fundamental error with regard to the trial court having submitted a special issue on the issue of the use of a deadly weapon. The indictment did not allege the use of a deadly weapon in the commission of the burglary of a habitation. In the charge to the jury the court included a special issue as to the use of a knife. The jury found appellant guilty and affirmatively found that he used or exhibited a deadly weapon in the commission of the offense.
        The Court of Criminal Appeals has held that fundamental error occurs when a finding of a deadly weapon is made without the State having first given the accused notice of the State's intention to seek such a finding. Ex parte Patterson, 740 S.W.2d 766, 776 (Tex. Crim. App. 1987). The indictment does not put appellant on notice of the State's intention to seek an affirmative finding of a deadly weapon. Nor do we find any other evidence of notice in this record. Due to the failure of the State to give the appellant notice of its intent to seek an affirmative finding of deadly weapon we have no alternative but to reform the judgment to delete the affirmative finding of a deadly weapon. Accordingly, the judgment of the trial court will be reformed to delete the recitation of the jury's answer to the special issue, and the trial court's affirmative finding made thereon. Otherwise the judgment of the trial court is not disturbed.
        The Clerk of this Court is instructed to forward a copy of this opinion to the Texas Department of Corrections.
        
 
                                                          PER CURIAM
 
DO NOT PUBLISH
TEX. R. APP. P. 90
87-01151.F
 
 
File Date[01-02-89]
File Name[871151]