Austin Burge-Porras v. The State of Texas Appeal from 16th District Court of Denton County (memorandum opinion)
Annotate this Case
Download PDF
In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00127-CR ___________________________ AUSTIN BURGE-PORRAS, Appellant V. THE STATE OF TEXAS On Appeal from the 16th District Court Denton County, Texas Trial Court No. F19-2563-16 Before Sudderth, C.J.; Wallach and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION In a single issue, appellant Austin Burge-Porras contends the trial court erred by including a deadly-weapon finding in the judgment for his aggravated-assault conviction when the trial court had not asked the jury a separate deadly-weapon question in the charge. Based on controlling Texas Court of Criminal Appeals authority, we affirm. I. BACKGROUND A jury convicted Burge-Porras of aggravated assault, after a short trial at which the complainant testified that––while the two were driving on the same road and after the complainant had honked at Burge-Porras––Burge-Porras drove up beside the complainant, made angry faces and “jerky” hand motions, and then showed the complainant a firearm that Burge-Porras had “pointed up” in his lap. See Tex. Penal Code Ann. § 22.02(a)(2) (providing that a person commits aggravated assault if he commits assault under Penal Code Section 22.01 and also “uses or exhibits a deadly weapon during the commission of the assault”). The indictment had charged BurgePorras with “intentionally or knowingly threaten[ing the complainant] with imminent bodily injury by pulling up next to [him] and staring at [him] while holding a firearm, and . . . during the commission of said assault, us[ing] or exhibit[ing] a deadly weapon, to-wit: a firearm.” Although the jury charge did not include a specific deadly-weapon question, the jury found, “unanimously,” that Burge-Porras was “guilty of the offense of Aggravated Assault as alleged in the indictment.” [Emphasis added.] In doing so, the 2 jury rejected Burge-Porras’s self-defense claim, on which the trial court had instructed the jury. II. ANALYSIS Burge-Porras argues in his sole issue on appeal that because the jury was not asked, and did not answer, a specific deadly-weapon question in the charge, the trial court erred by including that affirmative finding in the judgment. It is true that before a trial court may include a deadly-weapon finding in a judgment, “the trier of fact must first make an ‘affirmative finding’” that the defendant used or exhibited a deadly weapon in committing the charged offense. Duran v. State, 492 S.W.3d 741, 746 (Tex. Crim. App. 2016); see Tex. Code Crim. Proc. Ann. arts. 42.01, § 1(21), 42A.054(b)–(d). But in very limited circumstances, a trial court may infer that a jury did make such an affirmative finding, even if the jury did not make an express, separate finding. Duran, 492 S.W.3d at 746 (citing Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985) (listing limited circumstances in which trial court may infer finding)). One of those circumstances is present here: the indictment specifically alleged that the defendant used a firearm, and the jury found the defendant guilty “as charged in the indictment.” Id.; Polk, 693 S.W.2d at 396; see Lafleur v. State, 106 S.W.3d 91, 92 (Tex. Crim. App. 2003) (“[W]e reaffirm our decision in Polk v. State.”); cf. Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009) (“Having found that the defendant was guilty of homicide, the jury necessarily found that the defendant used something that in the manner of its use was capable of causing—and did cause—death.”). 3 Although the Court of Criminal Appeals has emphasized that this exception is limited, it has not overruled Polk or its subsequent opinions relying on Polk’s reasoning applicable to this case. E.g., Duran, 492 S.W.3d at 746; Lafleur, 106 S.W.3d at 92. Nor has Burge-Porras asserted that Polk is no longer valid based on new authority or argument. Thus, we overrule his sole issue. III. CONCLUSION Having overruled Burge-Porras’s sole issue on appeal, we affirm the trial court’s judgment. /s/ Brian Walker Brian Walker Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: August 4, 2022 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
