Rayshun Gooden v. State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-150-CR

RAYSHUN GOODEN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2000-120-C

O P I N I O N

A jury convicted Rayshun Gooden of capital murder. Because the State did not seek the death penalty, the trial court sentenced Gooden to life in prison. We affirm the judgment as modified.

Background

Gooden and a juvenile accomplice decided to steal a car from a used car dealer in Waco, Texas. They broke into the office of the car dealer and waited for someone to arrive. When an employee, Edward Marshall Lee, arrived, they killed him. When the owner of the car lot arrived, Gooden threw a fire extinguisher at him, knocking two bank bags which included car titles and keys to all the cars on the lot out of his hands. The owner ran from the office and called the police. Gooden and his accomplice were located by the police in the immediate vicinity of the car dealer. Gooden had Lee s credit cards in his possession.

Deadly Weapon Finding

In his first issue, Gooden contends the trial court erred in entering a deadly weapon finding in the judgment. Where the jury is the trier of fact, the trial court has the authority to enter an affirmative deadly weapon finding only when the jury: (1) finds the defendant "guilty as charged in the indictment" and the indictment alleged the use of a "deadly weapon"; (2) finds the defendant "guilty as charged in the indictment" and the indictment alleged the use of a per se deadly weapon; or (3) affirmatively answers a special issue on deadly weapon use. Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995); Edwards v. State, 21 S.W.3d 625, 627 (Tex. App. Waco 2000, no pet.). The State agrees that none of these conditions were met. Thus, it concedes the trial court erred.

Gooden s first issue is sustained, and the trial court s judgment is modified to delete the deadly weapon finding.

Penal Code 12.31(b)

In his second issue, Gooden contends that the mandatory provisions of section 12.31(b) of the Texas Penal Code were not complied with and that, although he did not object, the error cannot be waived.

Section 12.31(b) provides in part:

...In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that a sentence of life imprisonment is mandatory on conviction of the capital felony.

Tex. Pen. Code Ann. 12.31(b) (Vernon 1994).

The State argues Gooden waived review of this issue because he did not object at the trial court level. We agree. Where a defendant does not point out a section 12.31(b) omission to the trial court, he cannot argue for the first time on appeal that the omission was error. Tex. R. App. P. 33.1; Flowers v. State, 959 S.W.2d 644, 646 (Tex. App. Houston [1st Dist.] 1996, pet. ref d). Gooden did not object, therefore, he has not preserved this issue for our review. The issue is overruled.

Conclusion

Having sustained Gooden s first issue but overruling his second, we affirm the trial court s judgment as modified by the first issue.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed as modified

Opinion delivered and filed February 6, 2002

Do not publish

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