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Ross v. State

When the trial court is the trier of fact at the punishment stage, the court has the authority to make an affirmative finding as to the use or exhibition of a deadly weapon if the jury has not decided the matter at the guilt stage.

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A jury convicted appellant Bart Ross of two counts of engaging in organized criminal activity. On appeal, this Court found the evidence legally insufficient to sustain a conviction for that offense, rendered judgment convicting appellant of the lesser included offense of aggravated assault, and remanded the cause for resentencing. Ross v. State, 9 S.W.3d 878, 884 (Tex. App.-Austin 2000, pet. ref’d). On remand, the district court assessed punishment for each count of aggravated assault at imprisonment for seven years. The judgments (one for each count) reflect an affirmative finding that a deadly weapon was used in the commission of the offenses. Appellant asserts in a single point of error that the district court “ignored the clear mandate of the court of appeals and overstepped its authority when it entered a deadly weapon finding.” We will overrule this contention and affirm.

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