Charles Eugene Harriman v. The State of Texas--Appeal from 296th District Court of Collin County

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Harriman v. State /**/




No. 10-95-117-CR









From the 296th District Court

Collin County, Texas

Trial Court # 296-80583-94




Appellant Harriman appeals from his conviction for aggravated assault, enhanced by a prior conviction, for which he was sentenced to 15 years and 6 months in the Texas Department of Criminal Justice.

The Wendells, the Kneedlers, and Appellant are neighbors. On January 1, 1994, Nancy Wendell heard what she believed to be gunshot in front of her house. John Wendell, her husband, also heard the gunshot. He went to investigate and saw Appellant running at the victim, Terry Kneedler, and shouting, "I'm going to kill you now." Diane Kneedler testified that Appellant stood in her front yard, cursing and threatening to kill her husband, and holding what she believed to be a handgun. Lawrence Vaughn, another neighbor, heard a gunshot, went to his window, and saw Appellant with a gun pointed toward the victim's home and shouting he would burn the house down and shoot the victim. Terry Kneedler, the victim, saw Appellant with a gun and was threatened by him.

The jury found Appellant guilty. After proof of a prior felony conviction, the judge sentenced Appellant to prison for 15 years and 6 months.

Appellant appeals on two points of error.

Point one: "The trial court erred in holding the evidence sufficient to sustain the conviction because the evidence was insufficient to prove beyond a reasonable doubt that Appellant used a deadly weapon, to-wit: a firearm."

A gun, firearm, or a pistol is a deadly weapon per se. Tex. Penal Code 1.07(17). Here, three people saw Appellant with a gun. Appellant fired the weapon, threatened to shoot, burn the house down, and kill the victim, while displaying the pistol aggressively.

The evidence is sufficient under the standard of review, i.e., after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could find each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Geesa v. State 820 S.W.2d 154 (Tex. Crim. App. 1991). Point one is overruled.

Point two: "Appellant's punishment is void because the punishment assessed is not authorized by statute."

The punishment range for Appellant's offense is not less than two years or more than twenty years with the finding of "true" to the enhancement paragraph of the indictment. The punishment range for Appellant's offense is not less than two or more than ten years with the finding of "untrue" to the enhancement paragraph. The judgment brought forward in the transcript showed "true" typed for the finding on the enhancements, and further showed a small handwritten notation "un" just prior to the typed "true." The trial judge signed the judgment. Without the enhancement being found to be "true," the punishment is outside the lawful range. Point two is sustained.

The judgment of guilty is affirmed. The judgment insofar as the sentence imposed is reversed. The cause is remanded for resentencing.


Chief Justice (Retired)


Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed in part; reversed and remanded in part

Opinion delivered and filed January 31, 1996

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