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Criminal Law No. 03-02-00624-CR, 4/17/2003. Click here for the full text of this decision FACTS: The appellant, Charlie Flenteroy, was indicted for aggravated robbery by the use or exhibition of a deadly weapon, “to wit: a screwdriver,” in the first count of the indictment. The second count of the indictment simply charged appellant with the offense of unauthorized use of a motor vehicle. There was no special pleading in the indictment regarding the use or exhibition of a deadly weapon. There was no written notice outside and independent of the indictment alerting the appellant of the state’s intention to seek an affirmative finding of the use of any deadly weapon other than the screwdriver. The jury found the appellant guilty of the lesser-included offense of robbery and of unauthorized use of a motor vehicle. At the penalty stage of the trial, the jury assessed punishment for the robbery offense at 20 years’ imprisonment, and found that a deadly weapon, “a hard metal-like object,” was used during the commission of the robbery offense. In addition, the jury assessed punishment for the offense of unauthorized use of a motor vehicle at two years’ confinement in a state jail. HOLDING: Affirmed as modified. Despite the continued viability of Grettenberg v. State, 790 S.W.2d 613 (Tex. Crim. App. 1990), and Ex parte Beck, 769 S.W.2d 525 (Tex. Crim. App. 1989), those cases did not involve a variance between the instrument named instrument in the notice, or the proof, or a second litigation of the deadly weapon issue during the same trial, or the use of a fill-in the blank verdict form permitting the jury to decide if the instrument it named or designated was a deadly weapon within the meaning of the law. The trial court also mentioned “Blackwell’s charge,” without giving any further reference or identification. This court found a suggested verdict form set out in 8 Michael J. McCormick, et al., Texas Practice: Criminal Forms and Trial Manual�97.07 (10th ed. 1995). If this is the form to which the trial court had reference, it is not authority for the action taken here. If it can be interpreted otherwise, the verdict form is wrong or certainly misleading. Likewise, the trial court’s reliance upon Grettenbergand Beckwas misplaced. Those cases make clear that the written notice requirement may take different forms. They do not support, however, a second submission of a deadly weapon issue to the trier of fact where the first submission has been resolved unfavorable to the state, where no further notice is given, and where it is left to the jury to determine the nature of the instrument or weapon alleged in the original notice and whether it was a deadly weapon as used or exhibited. The Grettenbergand Beckcases are distinguishable from the instant case. The appellant vigorously objected to the trial court’s proposed charge in the instant case, pointing out that no case law supported the trial court’s instructions and that the error would fundamentally violate his federal and state constitutional rights. The objections were overruled. All the points of error relate to the jury charge at the penalty stage of the trial. While the parties recognize the claimed error, they have not briefed the contentions as jury charge error. If a defendant timely objects to error in the charge, reversal is required if the error is “calculated to injure the rights of the defendant.” Texas Code of Criminal Procedure Art. 36.19. This means no more than that there must be some harm to the defendant from the error. Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000); Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g). Properly preserved error will require reversal so long as the error is not harmless. In reviewing jury charge error, “the actual degree of harm must be assayed in the light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record as a whole.” Almanza. The court concludes that the appellant preserved for review the error in the jury charge at the penalty stage of the trial and that he was harmed by having his liberty interest diminished by the erroneous deadly weapon finding. The judgment is modified to delete the deadly weapon finding. OPINION: Onion; Kidd, Patterson and Onion, JJ.

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