Enlow v. State

• Decision Date: 16 March 2001
• Docket Number: No. 06-00-00101-CR,06-00-00101-CR
• Citation: 46 S.W.3d 340
• Parties: (Tex.App.-Texarkana 2001) KENNETH WAYNE ENLOW, II, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 340

46 S.W.3d 340 (Tex.App.-Texarkana 2001)

KENNETH WAYNE ENLOW, II, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-00-00101-CR

Court of Appeals of Texas, Texarkana.

Submitted March 13, 2001

Decided March 16, 2001

On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 17751

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Opinion by Chief Justice Cornelius

Kenneth Wayne Enlow, II and John Thomas Parker were charged with aggravated robbery and were tried as co-defendants in a jury trial. The jury convicted Enlow as a party to aggravated robbery and set his punishment at forty years' confinement. He appeals, challenging the legal and factual sufficiency of the evidence, and contending that the trial court erred by entering a deadly weapon finding in the judgment, refusing to submit an "independent impulse" instruction to the jury, and allowing a summation of the evidence before the testimony was completed. He also challenges the constitutionality of Article 37.07 of the Texas Code of Criminal Procedure.¹

Enlow first challenges the legal and factual sufficiency of the evidence. He specifically contends that the evidence is insufficient to support his conviction for aggravated robbery as a party because it does not show that he intended to promote the aggravated robbery or that he should have anticipated that his co-defendant Parker would use a deadly weapon in the robbery.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995).

In reviewing the factual sufficiency of the evidence, we view the evidence in a neutral light, comparing the evidence that tends to prove the element in dispute with the evidence that tends to disprove the element. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); see Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We set aside the verdict only if the evidence is so weak as to be clearly wrong and manifestly unjust, or if the finding is against the great weight and preponderance of the evidence. Clewis v. State, 922 S.W.2d at 129.

At trial, the State prosecuted Enlow as a party, not as a principal. The State's first task was to prove that Parker, the principal, committed aggravated robbery. A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he knowingly or intentionally threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (Vernon 1994). A person commits aggravated robbery if he uses or exhibits a deadly weapon in the course of a robbery. Tex. Pen. Code Ann. § 29.03 (Vernon 1994).

Next, the State was required to establish that Enlow was criminally liable for Parker's actions. The court's charge allowed the jury to hold Enlow criminally responsible for Parker's conduct if the evidence proved (1) that Enlow solicited, encouraged, directed, aided, or attempted to aid Parker in committing the offense with intent to promote or assist in the commission of the offense, Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 1994), or (2) that in an attempt to carry out a conspiracy to commit one felony, Parker committed another felony, even though Enlow had no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that Enlow should have anticipated as a result of the carrying out of the conspiracy, Tex. Pen. Code Ann. § 7.02(b) (Vernon 1994).

The evidence, which consisted of testimony from several witnesses and the written statements of Parker and Enlow showed that in the early morning hours of September 1, 1999, after a day of drinking beer, Parker and Enlow drove around the Maxey community, near Paris, Texas, looking for things they could steal. They chose the country home of Loretta and Aud Brown as their target. Loretta Brown testified that at the time of the robbery, her bedside light was on, and Detective Joe David Tuttle testified that there were two pickup trucks and two cars parked at the home.

After searching through a barn and a storage shed, Parker and Enlow decided to enter the Browns' residence. On this hot September night, the Browns had left the front door open, and Parker simply tore through a flimsy screen door, unlocked it, and he and Enlow entered the home. According to Enlow's voluntary statement, Parker carried into the house a wooden stick that "looked like a splitting mall or sledge hammer handle." Parker unhooked a VCR that was in the front room and told Enlow to hold it while he explored the rest of the house. Mrs. Brown, who had fallen asleep in her bed while reading, awoke and discovered Parker in her bedroom. When she awoke, Parker beat her severely in the face with the wooden stick. He also injured her right hand when she raised it to protect herself. Parker and Enlow fled the house with the Browns' VCR and a chainsaw that they had taken from the storage shed. Parker and Enlow were arrested the next day.

Based on the evidence, we conclude that the jury could reasonably find that Enlow should have been aware that Parker might commit aggravated robbery during the course of the robbery. There was evidence that four vehicles were parked at the home, that a bedside light was on, and that Enlow knew that Parker entered the home with a large wooden stick. This evidence shows that Enlow should have known that people were in the home and that a confrontation might occur. He knew that Parker carried a weapon into the house and must have known that the purpose of carrying a weapon into the house was to threaten or injure anyone who might confront them in the house. Moore v. State, 24 S.W.3d 444, 447 (Tex. App.-Texarkana 2000, pet. ref'd). Considering this evidence, any reasonable juror could have found the elements of conspiracy or aiding and abetting beyond a reasonable doubt; moreover, the jury's verdict is not clearly wrong or unjust or against the great weight and preponderance of the evidence. The evidence is legally and factually sufficient to support the conviction.

In his second point of error, Enlow contends that the trial court erred by entering a deadly weapon finding in its judgment. The deadly weapon finding is significant because it makes Enlow ineligible for parole until his actual calendar time served equals one half of the sentence or thirty years, whichever is less, so long as it is not less than two calendar years. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2001); Tex. Gov't Code Ann. § 508.145(d) (Vernon Supp. 2001).

In a jury trial, a trial court may enter an affirmative deadly weapon finding in three situations: where the jury has (1) found guilt "as alleged in the indictment" and the deadly weapon was specifically pleaded, using the "deadly weapon" nomenclature; (2) found guilt "as alleged in the indictment" but, though not specifically pleaded as a deadly weapon, the weapon is per se a deadly weapon; or (3) affirmatively answered a special issue on deadly weapon use. Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995); Polk v. State, 693 S.W.2d 391, 395-96 (Tex. Crim. App. 1985). If, however, the defendant is convicted under the law of parties and not as a principal, the jury must specifically find that the defendant either personally used a deadly weapon or knew that a deadly weapon would be used or exhibited. Tate v. State, 939 S.W.2d 738, 753 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd); Pritchett v. State, 874 S.W.2d 168, 172 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd).

The jury did not specifically find that Enlow used a deadly weapon or knew that one would be used or exhibited. The trial court's entry of a deadly weapon finding was therefore improper. But the State argues that the trial court's error was harmless because reforming the judgment to eliminate the deadly weapon finding would not affect Enlow's parole eligibility, since his aggravated robbery conviction alone subjects him to the same parole restrictions as would a deadly weapon finding. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(F) (Vernon Supp. 2001); Tex. Gov't Code Ann. § 508.145(d).

Although correct in its argument that the minimum time required before Enlow will be eligible for parole will not change with the redaction of the deadly weapon finding, the State fails to consider the possibility that Enlow might suffer some other harm because of the deadly weapon finding. The deadly weapon finding might affect the decision of the Parole Board when Enlow becomes eligible for parole consideration. If Enlow were ever tried for another offense, this conviction might be admitted against him in that trial. The effect of the deadly weapon finding could reach beyond simply increasing the prison time required of Enlow before he will be considered for parole. We cannot know all of the possible effects that the deadly weapon finding could have on Enlow, so we cannot say with any certainty that the finding is harmless. See Edwards v. State, 21 S.W.3d 625, 627-28 (Tex. App.-Waco 2000, no pet.). We will therefore reform the judgment to eliminate the deadly weapon finding.

Enlow also contends that the trial court erred in failing to submit an independent impulse charge to the jury. Specifically, he argues that the court's refusal to include the requested language in the jury charge allowed the jury to convict him using a charge that failed to inform the jury of the circumstances requiring a conviction or acquittal. See Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998). Enlow objected to the court's proposed jury charge and requested that it contain the following...