From the 187th Judicial District Court, Bexar County
The appellant appealed his conviction for aggravated assault with a deadly weapon. The appellate court noted that although the prosecutors might have stretched the limits of permissible advocacy, their conduct did not rise to the level of reversible error, because the trial court immediately addressed the borderline behavior from the beginning of the trial. The trial court promptly instructed the jury to disregard the errors as soon as they occurred, and the record did not show a course of conduct by the prosecutors calculated to inflame and prejudice the minds of the jurors, preventing the appellant from receiving a fair trial. The court further found that the appellant did not object to that portion of the jury charge, and did not request submission of a special issue on use of a deadly weapon. The jury returned a general verdict finding the appellant “guilty of aggravated assault as charged in the indictment.” Both of the alleged means of committing aggravated assault charged in the indictment involved the use of a deadly weapon. Therefore, the indictment’s allegation of both means of committing aggravated assault put the appellant on notice that use of a deadly weapon would be an issue at the trial and that an affirmative finding on use of a deadly weapon would be inherent in the return of a guilty verdict. Because use of a deadly weapon was pled in the indictment, and the jury found the appellant guilty of aggravated assault “as charged in the indictment,” the judgment properly contained an affirmative finding that a deadly weapon was used during commission of the offense. Accordingly, the trial court's judgment was affirmed.