Garcia, Randall Anthony v. State

Opinion issued on May 30, 2002 In The Court of Appeals For The First District of Texas NO. 01-00-00073-CR RANDALL ANTHONY GARCIA, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 486198 O P I N I O N A jury convicted appellant, Randall Anthony Garcia, of murder, and the trial court assessed punishment at confinement for 80 years. In thirteen points of error, appellant complains the trial court erred in admitting evidence of appellant's extraneous offenses; admitting the former testimony of a witness; denying appellant's request for a jury instruction; admitting photographs obtained following an illegal arrest; denying appellant's request for a limiting instruction; vindictively sentencing appellant; and (7) finding appellant had used a deadly weapon. We affirm. BACKGROUND Appellant and his wife, complainant, were married in 1983, and had a child in 1984. The couple separated in 1987. While the divorce was pending, complainant was awarded temporary custody of the child. Appellant was dissatisfied with the arrangement, and, in September 1987, during a period of visitation, he took the child to Miami. Complainant reported appellant to police, who arrested appellant at a Miami airport. Appellant returned to Houston, where he was charged with interference with child custody. The divorce court terminated appellant's rights to visitation. On October 8, 1987, appellant was formally arraigned for interfering with child custody. The next morning, police found complainant dead in her apartment; she had been beaten, strangled, and stabbed. In June 1989, a jury found appellant guilty of murder, and Judge Jay Burnett assessed punishment at 40 years confinement. Appellant successfully appealed his conviction. (1) In February 1997, appellant was retried. The jury was unable to agree on a verdict, and, in March 1997, Judge Burnett declared a mistrial. In September 1999, appellant was tried for the third time. A jury found appellant guilty of murder, and Judge Woody Densen assessed punishment at 80 years confinement. This appeal followed. EXTRANEOUS OFFENSES In point of error one, appellant asserts the trial court erred in admitting evidence of his extraneous offenses because the State did not give him notice as required by rule 404(b) of the Texas Rules of Evidence. Rule 404(b) states: (b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction. Tex. R. Evid. 404(b). Prior to the second trial, on August 16, 1994, appellant's attorney, Allen C. Isbell, filed a "request for notice of [S]tate's intention to introduce evidence of other crimes, wrongs or acts (adjudicated or unadjudicated[)] in punishment pursuant to article 37.07 C.C.P." In response, the State filed, on September 1, 1994, a notice of intent to use the following extraneous offenses: interference with child custody; harassment; stalking; domestic violence; and terroristic threat. Prior to the third trial, on June 24, 1999, appellant's current attorney, Dan Cogdell, filed a notice of request for 37.07, 38.37(b), 404(b), and 609(f) evidence. In response, the State filed, on June 25, 1999, a notice of intent to use evidence of other crimes, wrongs, or acts. The notice alleged that appellant, "while incarcerated in the Texas Department of Corrections, violated prison rules by possessing contraband, namely, cold medicine." At the third trial, the State offered, during its case-in-chief, evidence that appellant had, in the past, interfered with child custody, stalked complainant, and assaulted complainant with a gun. Appellant objected that he had not been given notice of the State's intent to introduce such evidence, as required by rule 404(b). He argued: "The only thing we got notice pursuant to our written request for notice was this cough syrup remedy." The State agreed, but added: "[T]here are prior notices on file that were made by the prosecutors before on the two trials." Appellant did not contest that notice had been given to prior counsel. He was "satisfied that [the prior notices were] in the Court's file," but argued new notice was required. The trial court found the State had complied with the notice requirement in rule 404(b) and admitted the evidence. The purpose of rule 404(b) is to remove the element of surprise. The record shows Codgell was not surprised by the State's introduction of extraneous offense evidence. It was clear Cogdell was familiar with the trial court's file and the records from the prior trials. Given such knowledge, Cogdell was provided sufficient notice to prepare a defense to counter such evidence. He demonstrated his preparation by cross-examining the State's witnesses about the extraneous offenses. Cogdell's filing of a motion in limine is further evidence he had actual knowledge of the extraneous offenses and the State's intent to use them. Under these facts, we cannot conclude the trial court erred in admitting the evidence of appellant's extraneous offenses. Appellant relies on Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995), Neuman v. State, 951 S.W.2d 538, 540 (Tex. App.--Austin 1997, no pet.), and Dodgen v. State, 924 S.W.2d 216, 218-19 (Tex. App.--Eastland 1996, pet. ref'd), for the proposition that the mere opening of the State's file does not satisfy the requirement that the State give notice of intent to introduce, in its case-in-chief, evidence of appellant's extraneous offenses. Unlike Buchanan, Neuman, and Dodgen, this case involves the trial court's file, and, therefore, appellant's reliance on these cases is misplaced. We overrule point of error one.FORMER TESTIMONY In points of error two, three, and four, appellant asserts the trial court violated his Sixth Amendment right to confrontation of witnesses when it admitted the former testimony of Debra Hill, complainant's neighbor. See U.S. Const. amend. VI. He complains Hill's former testimony was not admissible as a hearsay exception because the State did not use due diligence to find her. Former testimony is "testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Tex. R. Evid. 804(b)(1). Former testimony is admissible as a hearsay exception if the declarant is unavailable as a witness. Id. A declarant is unavailable if she is absent from the hearing, and the proponent of the declarant's statement has been unable to procure her attendance or testimony by process or other reasonable means. Id. at 804(a)(5). Hill's testimony from the first trial shows she lived with her two children in the "[n]ext apartment over." The two apartments, which were "exactly the same except they're opposite," shared a common stairwell. Facing the stairwell are windows. On October 9, 1987, between 7:00 a.m. and 7:15 a.m., Hill heard loud noises next door. There was "bumping, like somebody being slammed against the wall." A woman was making noises "like it hurt to be banged around." Hill reported the noises to the manager. A couple of minutes later, Hill looked outside the window. At first, Hill saw nothing; she only heard someone approaching the stairwell. Then, she saw a man fitting appellant's description coming up the stairs. Hill testified: "He was male, under 30, squarely built, pretty solidly built, olive complexion. He was probably Hispanic, possibly. He wasn't white . . . . He had clothes on[:] jeans, faded blue jeans, shortsleeved shirt, hat, [and] glasses." The man "hurried up the stairs, went in next door and shut the door and that stopped the noise from being so loud." Four or five minutes passed before the noises stopped. More than 10 years had passed since the first trial, and Hill had moved to another state. The State wanted to present, by transcript, Hill's testimony from the first trial. Appellant objected, arguing the State had not used due diligence to find Hill. The trial court found Hill was unavailable and admitted Hill's testimony by transcript. To introduce the former testimony of an unavailable witness, the proponent of the testimony must have made a good faith effort to obtain the witness's presence at trial. Barber v. Page, 390 U.S. 719, 724-25, 88 S. Ct. 1318, 1321-22 (1968); Urbano v. State, 808 S.W.2d 519, 521 (Tex. App.--Houston [14th Dist.] 1991, no pet.). The rules, however, do not require a proponent to perform every improbable effort that, in hindsight, might have produced the witness. Urbano, 808 S.W.2d at 522. "Rule 804(a)(5) does not require a proponent to butt his head against a wall just to see how much it hurts." Id. The State's investigator, Bruce Frank, testified that he tried to find Hill to testify in appellant's second and third trials. Frank checked driver's license records to find a current address. He found that Hill, who had changed her name to Givens, at one point had an address in Oklahoma City, Oklahoma. Frank searched telephone records, but he was unable to find a phone number for her. The State had an out-of-state subpoena issued for the Oklahoma address in June 1999. Hill was not present at the September 1999 trial. On cross-examination, Frank admitted he had not: (1) contacted any utility companies to find a current address; (2) visited Hill's last known address; (3) spoken to Hill's relatives; (4) traced any car Hill might have registered in Oklahoma; or (5) spoken with her last known employer. Appellant relies on Reyes v. State, 845 S.W.2d 328, 331-32 (Tex. App.--El Paso 1992, no pet.), and Otero-Miranda v. State, 746 S.W.2d 352, 355 (Tex. App.--Amarillo, pet. ref'd, untimely filed). However, unlike Reyes and Otero-Miranda, the State in this case used means other than the mere issuing of a subpoena to find Hill. Frank checked driver's license records and found that Hill had a new name and address. The State then issued a subpoena for Hill at the new address. Frank also checked telephone records, but was unsuccessful. More than ten years had passed since Hill had testified at the first trial. The trial court could have concluded from the evidence that the State exercised due diligence by pursuing other reasonable means to find Hill. Under such evidence, we cannot conclude the trial court abused its discretion in holding Hill was unavailable. See Urbano, 808 S.W.2d at 522 (reviewing a trial court's determination of availability for abuse of discretion). We overrule points of error two, three, and four. LESSER-INCLUDED OFFENSE In point of error five, appellant complains that, at the guilt/innocence phase of trial, the trial court erred reversibly in denying his request for an instruction on voluntary manslaughter as a lesser-included offense of murder. A defendant is entitled to an instruction on a lesser-included offense if (1) the lesser included offense is included within the proof necessary to establish the offense charged, and (2) some evidence exists in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty of only the lesser-included offense. Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996); Caicedo v. State, 981 S.W.2d 817, 818-19 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd). A person commits murder if he (1) "intentionally or knowingly causes the death of an individual," or (2) "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Pen. Code Ann. §19.02 (b) (Vernon 1994). A person commits voluntary manslaughter "if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from adequate cause." (2) Moore v. State, 969 S.W.2d 4, 16 (Tex. Crim. App. 1998). Sudden passion is "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Id. at n.1. Adequate cause is "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id. Appellant contends, and the State agrees, that voluntary manslaughter is a lesser-included offense of murder. The issue, then, is whether some evidence exists that would permit a jury to rationally find that, if appellant is guilty, he is guilty only of voluntary manslaughter. Appellant contends there is such evidence. Webster Police Detective W. Corbin conducted the investigation of complainant's murder. Appellant relies on Corbin's testimony that the murder was a "crime of passion." Corbin's testimony, however, does not describe any mental or emotional state. He merely testified the evidence at the scene--"no forced entry, nothing missing, the wounds on the complainant"-- showed the crime was one of passion, not property. Santos Flores was appellant's friend. Appellant relies on Flores's testimony that appellant was upset about the custody arrangement. After appellant lost all visitation rights, "he was emotional, crying and he was upset." Two days before complainant was killed, appellant called complainant from Flores's house. Appellant asked complainant if he could see the child, but complainant refused. He then told Flores "he was so mad that he could kill [complainant]." Evidence of prior arguments or discord, as in this case, will not establish the needed provocation. Willis v. State, 936 S.W.2d 302, 309 (Tex. App.--Tyler 1996, pet. ref'd). Passion resulting from former provocation is insufficient. Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App. 1983). Even if complainant's refusal to let appellant see their son provided adequate cause for appellant's passion, the passage of two days shows that appellant did not act immediately under the influence of that passion. See Gaston v. State, 930 S.W.2d 222, 225 (Tex. App.--Austin 1996, no pet.). Further, when, as in this case, the defendant creates the circumstances that instigate the inflaming of his passion (i.e., termination of visitation rights following appellant's taking the child to Miami), an instruction on voluntary manslaughter is not necessary. See Willis, 936 S.W.2d at 308-09. Under the evidence, an instruction on the lesser-included offense of voluntary manslaughter was not required, and, therefore, the trial court did not err in denying appellant's request. We overrule point of error five. PICTURES In points of error six, seven, and eight, appellant complains the trial court erred reversibly in admitting pictures obtained following an illegal arrest, in violation of his rights against unreasonable search and seizure. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2001). The State introduced pictures of appellant's face and clothed, upper body. Appellant objected, arguing these pictures were the fruits of an illegal arrest. The State agreed the pictures were taken following the warrantless arrest of appellant, but argued the pictures could be used to rebut a false impression. The trial court overruled appellant's objections and admitted the pictures. On appeal, the State contends the pictures were necessary to establish appellant's identity and to show "how appellant looked on the day of the crime, and to dispel any suggestions by the defense that appellant did not match [McNelley's] description . . . ." A defendant's face is not a suppressible fruit of an illegal arrest. U.S. v. Crews, 445 U.S. 463, 478, 100 S. Ct. 1244, 1253 (1980); Pichon v. State, 683 S.W.2d 422, 426 (Tex. Crim. App. 1984); Blondett v. State, 921 S.W.2d 469, 473 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd); Mungia v. State, 911 S.W.2d 164, 166 n.5 (Tex. App.--Corpus Christi 1995, no pet.). Therefore, the trial court did not err in admitting appellant's pictures. We overrule points of error six, seven, and eight. LIMITING INSTRUCTION In point of error nine, appellant complains the trial court erred reversibly in denying his request for a limiting instruction. Reverend Dominic J. Pistone counseled appellant. Prior to the first trial, Pistone gave police the following statement: I first met Randall Garcia a few months before October 1987. He came to my church to discuss problems he was having with his wife . . . . I received a call one morning from Randall Garcia. He said the police think I killed her. I asked him what happened, what he did mean [sic]. He told me that he went to the parking lot of her [apartment] before she left for work to see if she was with another man and to see about the safety of his son. He said he saw someone around the [apartment] but did not go up to the [apartment]. He waited and then went to the [apartment] and knocked, but no one answered. He said he thought that someone saw him around the [apartments] and [therefore] they think I did it. I asked Randall if he did it. He said no. He said he would not do anything to hurt her or his son. I told him that he should not have been there. He said I know. At the first trial, Pistone testified, in relevant part: Q: On the morning of the death of Ileana Patricia Garcia, did you receive a phone call from the defendant, Randall Garcia? A: Yes. Q: Sir, I want to direct your attention to the morning when Patricia Ileana was killed, October [9], 1987. Did you have an occasion that morning to receive a call from Randall? A: Yes. Q: Will you tell the ladies and gentlemen of the jury what, if anything, he said to you? A: He told me in essence that they think I killed Ileana. Q: Did he tell you why they thought he killed Ileana? A: Because he said somebody saw me at the apartments. Q: And did he, in fact, tell you that he was at the apartments? A: Yes. Q: Then what explanation did he offer for why he was at the apartment? A: He was going to see Ileana, see where she got to work, see how his son was doing, see the safety of his son. . . . . Q: Other than him saying somebody saw him at the apartment, did he say he got to see Ileana? A: I don't remember him saying that. Q: Did he say whether he got to see his child? A: I don't remember him saying that. Q: He did tell you he was at the apartment that morning; is that correct? A: Before she went to work. At the third trial, the State called Pistone and questioned him about his statement and testimony. Even after refreshing his memory by looking over the statement and transcript of his testimony, Pistone insisted he could not remember the details of either document. The State then asked to read into evidence the transcript of Pistone's testimony. Appellant objected the evidence was hearsay and asked the trial court to limit the jury's consideration of such evidence to the purpose for which it was admitted--impeachment. The State responded it was offering the evidence under rules 613(a), 801(e)(1(A), 804(a)(3), and 804(b)(1) of the Texas Rules of Evidence. The trial court held impeachment was just "one of the reasons" he was admitting the evidence and denied appellant's request for a limiting instruction. Former testimony is admissible as a hearsay exception if the declarant is unavailable as a witness. Tex. R. Evid. 804(b)(1). A declarant is unavailable if he testifies to a lack of memory of the subject matter of the declarant's statement. Tex. R. Evid. 804(a)(3). If a prior inconsistent statement is given under oath, subject to perjury at a trial, hearing, or other proceeding, it is not hearsay and is admissible to prove the truth of the matter asserted. See Tex. R. Evid. 801(e)(1)(A). Prior inconsistent statements, which do not qualify as nonhearsay under rule 801(e)(1)(A), may still be admissible for impeachment purposes. See Tex. R. Evid. 613(a). Appellant correctly states testimony admitted solely for impeachment is without probative value and cannot be considered as substantive evidence. Goodman v. State, 665 S.W.2d 788, 792 n.2 (Tex. Crim. App. 1984); Adams v. State, 862 S.W.2d 139, 147 (Tex. App.--San Antonio 1993, pet. ref'd). When testimony is offered and admitted for impeachment purposes only, it should be limited in the court's charge. Adams, 862 S.W.2d at 148. When, as in this case, the testimony is admitted for purposes other than just impeachment, no limiting instruction is required. Cantrell v. State, 731 S.W.2d 84, 95 (Tex. Crim. App. 1987). Therefore, the trial court did not err in denying appellant's request for a limiting instruction. We overrule point of error nine. VINDICTIVE SENTENCING In points of error 10 and 11, appellant complains about his sentence. In June 1989, Judge Burnett assessed punishment at confinement for 40 years. Appellant successfully appealed his conviction. More than ten years later, in September 1999, Judge Densen assessed punishment at confinement for 80 years. Appellant contends Judge Densen acted vindictively in imposing a harsher sentence on retrial following a successful appeal, in violation of federal and state constitutional rights to due process. Due process of law requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. North Carolina v. Pearce, 395 U.S. 711, 725, 89 S. Ct. 2072, 2080 (1969); Wiltz v. State, 863 S.W.2d 463, 464 (Tex. Crim. App. 1993); Wilson v. State, 810 S.W.2d 807, 809-10 (Tex. App.--Houston [1st Dist.] 1991, no pet.). If a judge increases a defendant's sentence after a new trial, the reasons for the increase must affirmatively appear on the record. Pearce, 395 U.S. at 726, 89 S. Ct. at 2081. The reasons must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. Id. Absent reasons affirmatively appearing on the record, a presumption of vindictiveness arises. Wiltz, 863 S.W.2d at 464. The State has the burden of rebutting the presumption by affirmative proof. Pearce, 395 U.S. at 726, 89 S. Ct. at 2081. When, as in this case, a defendant is sentenced by a different judge, the Pearce presumption does not apply. See Jackson v. State, 766 S.W.2d 518, 521 (Tex. Crim. App. 1988); but see Bingham v. State, 523 S.W.2d 948, 949-50 (Tex. Crim. App. 1975) (applying Pearce presumption when second judge was familiar with former proceedings, and there was no danger of retaliation against defendant). Where the Pearce presumption does not apply, a defendant may still obtain relief if he can show actual vindictiveness. Texas v. McCullough, 475 U.S. 134, 140, 106 S. Ct. 976, 979 (1986); Wilson, 810 S.W.2d at 810. Judge Densen indicated that he had not read the record from the first trial, and defense counsel doubted if Judge Densen had "done so since." Under such evidence, we cannot conclude Judge Densen was familiar with the former trial or had a "personal stake in the prior conviction." See Jackson, 766 S.W.2d at 521. To presume Judge Densen acted vindictively would call for speculation. See id. Judge Densen stated, for the record, various non-vindictive reasons for increasing appellant's sentence. First, he made the following observations: The Court did hear testimony from Mr. Jacobson, which is new testimony, the assault extraneous offense against the victim-plaintiff in her apartment. Furthermore, the Court has Exhibit 73, which is a part of the pen packet which makes a finding of misconduct on the part of the Defendant while serving time in prison and a disciplinary report and, I assume, punishment. So, for the record, the Court has heard some additional testimony it hadn't heard in the first trial . . . . Judge Densen then held: . . . . The Court finds that there was additional evidence of extraneous offenses offered in this trial that were not tried or offered in the 1989 trial, specifically, without going into them, Groves, the father and son investigators, the stalking incidents, the assault against Mr. Jacobson and the deceased victim-Complainant, also--and I agree that it's a minor thing--the punishment that he received in prison. But these are additional facts that were introduced into this trial that were not in the other trials. As far as vindictiveness, the Court finds that this trier of facts, as far as punishment, is a different trier of facts; and there's no vindictiveness. Appellant points to the presentence investigation report (PSI) from the first trial as evidence Judge Densen did not rely on new or additional evidence. He contends the PSI "outline[s] the exact same conduct which [Judge Densen] in the instant case purportedly relied upon in increasing appellant's sentence from 40 to 80 years incarceration." The State asserts, and we agree, the PSI "does not provide the detail afforded by the trial testimony." Appellant complains "there was insufficient information concerning appellant's subsequent conduct to justify a 40-year increase" in punishment. He was punished, in prison, for having cough medicine, which was considered contraband. Such conduct, appellant contends, "does not rise to the level of subsequent conduct which would give any court sufficient reason to double appellant's punishment upon retrial." Judge Densen was entitled to consider events subsequent to the first trial that could have shed new light upon appellant's "life, health, habits, conduct, and mental and moral propensities." See Pearce, 395 U.S. at 723, 89 S. Ct. at 2079. Therefore, Judge Densen properly considered appellant's prison record. We conclude Judge Densen stated, on the record, sufficient, objective, and nonvindictive reasons that justify his decision to increase appellant's sentence. See Wilson v. State, 810 S.W.2d at 811-12 (acknowledging evidence from a witness previously unheard and holding new judge properly considered prison infractions, even though minor and nonviolent). Judge Densen, in determining appellant's sentence, had wide discretion. See Wasman v. United States, 468 U.S. 559, 563, 104 S. Ct. 3217, 3220 (1984). Because Judge Densen provided on-the-record, nonvindictive reasons for increasing appellant's sentence, there was no abuse of discretion. See McCollough, 475 U.S. at 140, 106 S. Ct. at 979. In a footnote, appellant complains about his "motion for court to predetermine punishment." He alleged the evidence was insufficient to justify an increase in punishment and asked the court to "determine the range of punishment . . . and . . . determine that the range of punishment cannot exceed the sentence previously imposed upon the defendant for the same offense." Appellant contends that, by not hearing this motion prior to trial, Judge Densen violated his rights to make an informed decision about punishment election and to have effective representation. This, appellant argues, is evidence of the Judge Densen's vindictiveness. For the reasons provided above, appellant's complaint is without merit. Appellant has not shown Judge Densen acted vindictively in assessing punishment, and, therefore, his rights to due process were not violated. We overrule points of error 10 and 11. DEADLY WEAPON FINDING In points of error 12 and 13, appellant complains the trial court's deadly weapon finding violates his rights under the double jeopardy clause of the United States and Texas Constitutions. He contends the trial court erred reversibly in making an affirmative deadly weapon finding because such a finding was collaterally estopped by the trial court's previous ruling that a deadly weapon finding was "not applicable." The previous ruling "constituted an implied finding against such a conclusion." The principle of collateral estoppel means that, "when an ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443-45, 90 S. Ct. 1189, 1194 (1970); Dedrick v. State, 623 S.W.2d 332, 334 (Tex. Crim. App. 1981); Shute v. State, 945 S.W.2d 230, 231 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Generally, when a trial court's judgment is reversed on appeal, the trial court's judgment is no longer valid for purposes of collateral estoppel. Shute, 945 S.W.2d at 231-32. There is an exception when the factfinder or an appellate court determines the prosecution has not proved its case; in that event, the defendant is protected from re-prosecution to the extent of that acquittal. Shute, 945 S.W.2d at 232. The exception does not apply here because, in a bench trial, the trial court, regardless of the evidence, is not required to make an affirmative deadly weapon finding. Id.; Ex parte Lucke, 742 S.W.2d 818, 820 (Tex. App.--Houston [1st Dist.] 1987, no pet.). The first trial court noted a deadly weapon finding was "not applicable." Because the decision to make such a finding was a matter of discretion for the first trial court, we hold the third trial court was not collaterally estopped from making an affirmative deadly weapon finding. See Shute, 945 S.W.2d at 232. Relying on Travelstead v. State, 693 S.W.2d 400, 402 (Tex. Crim. App. 1985), appellant complains the trial court erred in entering an affirmative finding that he used a deadly weapon because (1) the State tried him as a party to the offense, and (2) there was no evidence he used or exhibited a deadly weapon. Travelstead states that, if the guilt of the defendant is as a party, there must be a specific finding by the trier of fact that the defendant personally used or exhibited a weapon. Id. at 402. Unlike Travelstead, appellant, in this case, was not tried only as a party. The jury was charged on whether appellant himself committed the offense and whether appellant was a party to the offense. The trial court did not err in entering an affirmative finding, and, therefore, appellant's rights against double jeopardy were not violated. We overrule points of error 12 and 13. CONCLUSION We affirm the judgment. Margaret Garner Mirabal Justice Panel consists of Justices Mirabal, Jennings, and Duggan. (3) Do not publish. Tex. R. App. P. 47. 1. See Garcia v. State, 829 S.W.2d 796 (Tex. Crim. App. 1992). 2. At the time of the offense, October 9, 1987, voluntary manslaughter was defined by section 19.04 of the Penal Code. Moore v. State, 969 S.W.2d 4, 16 n.1 (Tex. Crim. App. 1998). Effective September 1, 1994, this version of section 19.04 was repealed. Id. The former law was continued for offenses committed before the effective date. Id. For offenses committed after the effective date, sudden passion is an issue to be considered at the punishment phase of trial. See Tex. Pen. Code §19.02(d) (Vernon 1994). 3. The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.