LANARK MULKEY, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed November 2, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01364-CR
No. 05-88-01365-CR
No. 05-88-01366-CR
............................
LANARK MULKEY, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F88-84598-LM,
F88-96106-JM and F88-96107-JM
.................................................................
OPINION PER CURIAM
Before Justices Whitham, Rowe and Whittington
        Lanark Mulkey appeals his conviction for the offense of aggravated robbery and two convictions for the offense of aggravated assault. Punishment, enhanced in each case by a prior conviction, was assessed at thirty-five years' confinement in the aggravated robbery case, and ten years' confinement in each of the aggravated assault cases.
        Appellant's attorney has filed briefs in which appellant's attorney has concluded that the appeals are wholly frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's briefs have been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record in each of his cases and that he had a right to file a pro se brief in each case. No pro se brief has been filed in any of the cases.
        Appellant has noted for this Court what he claims is an error in the judgments. The judgments in each case recite that the jury made a finding that appellant used a deadly weapon in the course of committing each of the offenses; however, appellant claims that the record reflects that the trial court made these findings. Appellant asks that this Court reform the judgments to reflect that the judge made the deadly weapon findings. The record reflects that in each of the three cases, appellant was charged with an aggravated offense; in each of the cases, the aggravating element alleged by the State was "use of a deadly weapon, to-wit: a handgun". The jury found appellant guilty in each case "as charged in the indictment".
        The trial judge has the authority to make an affirmative finding concerning the use of a deadly weapon when he is the trier of fact at the punishment phase of trial. Fann v. State, 702 S.W.2d 602, 604 (Tex. Crim. App. 1985). However, this does not necessarily mean that when the trial judge is the trier of fact at the punishment phase of trial, he alone may make an affirmative finding. An affirmative finding may also be made when the indictment charges appellant with use of a deadly weapon and the jury in its verdict finds appellant "guilty as charged in the indictment". Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). We recognize that the court of criminal appeals has said that an affirmative finding on use of a deadly weapon "can be and is perhaps more suited to be a punishment issue." Fann v. State, 702 S.W.2d at 604-05. However, appellant cites no authority, and we find none, which requires that the affirmative finding be made only at the punishment stage of trial. In the present cause, the jury, by finding appellant "guilty as charged in the indictment" in each of the cases, made the affirmative finding necessary to include the finding in the judgments. Accordingly, the recitation in the judgments that the jury made the affirmative finding of use of a deadly weapon is correct; we decline to reform the judgment. Appellant's arguable point of error is overruled.
        We have carefully reviewed the records and counsel's briefs and agree that the appeals are wholly frivolous and without merit. Further, we find nothing in the records that might arguably support the appeals.
        The judgments are affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
881346.U05
 
 
File Date[11-02-89]
File Name[881364]