Rashad Schency Kelly v. the State of Texas

Affirmed as Modified and Opinion Filed August 12, 2024




                                    S  In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-23-00164-CR

                    RASHAD SCHENCY KELLY, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

               On Appeal from the 363rd Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. F20-76833-W

                         MEMORANDUM OPINION
             Before Justices Partida-Kipness, Pedersen, III, and Garcia
                        Opinion by Justice Partida-Kipness
      Appellant Rashad Schency Kelly was convicted of murdering Lawrence

Guerra and sentenced to thirty years in prison. On appeal, Rashad contends the State

failed to establish a proper chain of custody for five items admitted into evidence. In

a single cross-issue, the State asks us to modify the judgment to include a deadly

weapon finding. We overrule Rashad’s sole appellate issue, sustain the State’s cross-

issue, and affirm the trial court’s judgment as modified.
                                  BACKGROUND

      In the early morning hours of October 26, 2020, Officer Brody Baggs of the

Dallas Police Department (DPD) was dispatched to a stabbing call. When he arrived

on scene, he went to the front door of the residence and made contact with Rhonda

Guerra, the victim’s mother, and Lawrence Guerra, the victim. According to Officer

Baggs, Rhonda was very upset and was crying and screaming, and Lawrence was

sitting on the floor inside the front door. Lawrence had a cut on his side, was sitting

in a pool of blood, and was groaning. Rhonda told Officer Baggs she was sleeping

and woke up when she heard a noise in the home. When she came out of her room,

she discovered Rashad Kelly had stabbed Lawrence in Lawrence’s bedroom.

Rhonda reported Rashad was dressed in black, wearing a hoodie, and left the house

in her GMC Yukon.

      DPD Crime Scene Analyst Carmen Fletcher arrived on scene at about

2:00 a.m. She met with responding officers, took notes and photographs of the crime

scene, diagramed the scene, and began to look for and collect evidence. In the

kitchen, Fletcher noticed knives were missing from the knife block. She found two

knives in the dishwasher and found a third knife in a bedroom tucked “partially

inside of the comforter” on the bed. She noticed a lot of blood on the bedding and

on the bed. Fletcher testified the knives she found in the dishwasher had the same

markings as the knife found in the comforter. Fletcher believes it is possible the knife

in the comforter would fit a slot in the knife block, but she did not test that theory

                                          –2–
because she collected and bagged the knife as evidence. While on scene, Fletcher

also collected swabs of possible blood and a box cutter located in the backyard. At

trial, Fletcher identified State’s Exhibit 27 as the knife she collected on the scene.

She testified her name, badge number, and element number were written on the

exhibit’s property tag, and the tube inside included in her handwriting the same tag

number and case number listed on the property tag.

      Detective Theodore Gross of the DPD Homicide Unit was the on-call

homicide detective on October 26, 2020, and was assigned to this case. While

another detective wrote the search warrant and went to the crime scene, Detective

Gross went to headquarters to interview the victim’s mother. When he arrived at

headquarters, Detective Gross knew from officers on the scene that Lawrence was

the victim and Rashad was the suspect. He also had information regarding a tan

GMC Yukon. During their interview, Rhonda provided Detective Gross with enough

information to issue an arrest warrant for Rashad. When DPD activated the warrant,

they also put out a state-wide be-on-the-lookout bulletin (BOLO) for the Yukon’s

license plate number and for Rashad in that Yukon.

      Rashad was located that evening driving the Yukon in Wichita County, Texas.

At 5:00 p.m., Wichita County Sheriff’s Office Deputy Amanda Ward received a

“check until officer satisfied” (COS) call for reckless driving concerning a tan GMC

Yukon. The 911 caller said the vehicle was impeding traffic by driving very slowly

on the highway and being unable to maintain a lane. Deputy Ward responded to the

                                         –3–
dispatch, found the vehicle, and observed the Yukon driving very slowly on the

highway. When she checked the vehicle’s tag with dispatch, she discovered the

registration was expired. She followed the Yukon for about fifteen minutes, during

which the Yukon maintained its slow speed. Deputy Ward eventually activated her

emergency lights and sirens and pulled the Yukon over. She made contact with the

driver and identified him as Rashad Kelly. He told Deputy Ward he was driving from

Irving and had left Irving about forty-five minutes before he was pulled over. He

could not answer where he was headed. Irving is about two and a half hours away

from where she pulled Rashad over. After getting his identification, Deputy Ward

returned to her patrol unit and checked Rashad through dispatch using the driver’s

license number and plate registration. That is when she learned Rashad had a full

extradition warrant for homicide out of Dallas County. She waited for back up

officers to arrive and then completed a felony stop. Rashad was taken into custody

without incident.

      Deputy Ward testified Rashad was wearing grey sweatpants and a dark-

colored hoodie at the time of his arrest. She identified State’s Exhibit 24 as a

photograph taken of Rashad after he was handcuffed and was starting to be escorted

to her patrol unit. The photo shows Rashad wearing grey sweatpants and a dark-

colored hoodie. After arresting Rashad, Deputy Ward secured the vehicle with

evidence tape and had it towed to the Wichita County Law Enforcement Center.

Deputy Ward then transported Rashad back to the Wichita County Sheriff’s Office,

                                       –4–
where he was given clothes to wear in custody. Deputy Ward took possession of the

clothes he was wearing at the time of the arrest and placed the clothing inside paper

evidence bags. She later turned those evidence bags over to DPD Detective Gross.

       When Detective Gross learned Rashad had been apprehended, he and another

detective drove to Wichita County to interview Rashad. When they arrived in

Wichita County, they were notified the Yukon had been seized and placed in a barn

for them. Detective Gross obtained and issued a search warrant for the Yukon. Texas

Ranger1 Jacob Weaver of the Texas Department of Public Safety Criminal

Investigations Division processed the Yukon after receiving the search warrant from

DPD.

       Special Agent Weaver testified the Yukon was parked in an indoor garage bay

at the Wichita County Law Enforcement Center. The Yukon was wrapped with

crime scene tape and all of the doors had been sealed with evidence tape. This told

Special Agent Weaver “that nobody had been in that vehicle since law enforcement

had come in contact with it and it was secure and its contents were secure.” He and

the other Texas Ranger assisting him both wore gloves before opening the Yukon’s

doors and while processing the vehicle. They found and seized five pieces of

evidence in the Yukon: a pair of black pants in the back seat of the car, a glove in

the console next to the driver’s seat, another glove with a red stain on it found in the



   1
    At the time of trial, Weaver was a Special Agent with Texas DPS. We will refer to him as Special
Agent Weaver.
                                               –5–
console area, a cell phone found in the console, and a receipt found in the driver’s

door panel. He tested the red stain on the second glove using Hemastix to determine

the presence of blood. The test strip turned blue indicating a positive presumptive

test for the presence of blood.

      At trial, Special Agent Weaver identified State’s Exhibits 33 through 40 as

photos showing the exterior and interior of the vehicle, the items located in and

seized from the vehicle, and the Hemastix strip showing a blue, positive result. He

testified that he seized the gloves and the black pants and packaged them to send to

the lab. Special Agent Weaver also confirmed he was given the items of clothing

removed from Rashad when he was arrested. He identified State’s Exhibits 29, 30A,

30B, and 31 respectively as a hoodie given to him by the Wichita County Sheriff’s

office after he finished processing the vehicle, the black pants he removed from the

vehicle, and the left and right gloves that were removed from the console and console

area of the vehicle. He testified it was his understanding Rashad was wearing the

hoodie at the time of the arrest. After sealing the items and marking the seals, Special

Agent Weaver gave the items to Detective Gross.

      Detective Gross testified he took possession of the items seized from the

vehicle as well as the items that were on Rashad’s person when he was arrested. He

also obtained a buccal swab from Rashad and deposited it into a secured bag. He

placed the sealed items in a locked container in the trunk of his car, drove back to

Dallas, and delivered the sealed items to the Southwestern Institute of Forensic

                                          –6–
Sciences (SWIFS) for DNA testing and analysis to compare the suspect’s DNA with

DNA found on other pieces of evidence and the victim. He also delivered the knife

to SWIFS for DNA analysis and testing. Detective Gross described the knife as an

approximately eight-inch long chef’s knife. At trial, he identified State’s Exhibit 22

as a photo of the knife found in Lawrence’s bed and State’s Exhibit 27 as the same

knife shown in State’s Exhibit 22 and the same knife he delivered to SWIFS.

      He also identified State’s Exhibit 29 as the hoodie Rashad was wearing at the

time of the arrest and testified the exhibit matches the hoodie Rashad is seen wearing

in State’s Exhibit 24, the photo taken at the time of his arrest. Detective Gross also

identified State’s Exhibits 30A, 30B, and 31 respectively as the gloves and black

pants found in the Yukon. He further confirmed the evidence bags marked as State’s

Exhibits 29, 30A, 30B, and 31 were the same bags the items were in when he

received them in Wichita County and delivered them to SWIFS. He also explained

the different types of tape and notations on the evidence bags:

      A. . . . So when the troopers had secured the evidence, they placed the
      white tape on it. Once the crime lab gained access to it, they cut a hole
      into it and they use the red tape that’s seen on the bags.

      Q. And there is a case number and a tag number written on the bag?

      A. Right.

      Q. Is that yours or was that Wichita Falls’[s] or is that the crime lab?

      A. That’s ours, yes.

      Q. And there’s this other writing that begins with IFS --

      A. That’s going to belong to the crime lab.
                                         –7–
      Courtney Ferreira, a forensic biologist at SWIFS, conducted the DNA testing

in this case. She was the State’s last witness during the guilt-innocence phase of trial.

Ferreira testified she performed DNA analysis on the following:

            Blood standard from the victim, Lawrence Guerra.

            Buccal swab standard from Rashad Kelly

            DNA samples from a left shoe, left glove, right glove,
             sweatpants, a hoodie, pants, a shirt, and a knife.

At trial, Ferreira identified State’s Exhibits 41 through 44 as the serologist’s sketches

of and notes regarding the left glove with the red stain, the hoodie, the pants, and the

knife, and State’s Exhibit 45 as her own report. Ferreira explained the sketches and

notes on State’s Exhibits 41 through 44 were from the serologist who would have

performed the screening for biological fluids and taken any samples. State’s Exhibits

41 through 45 were admitted without objection.

      The State then showed State’s Exhibits 27, 29, 30A, 30B, and 31 to Ferreira.

She identified those exhibits respectively as the knife, the hoodie, the left glove, the

right glove, and the black pants. She explained each exhibit included SWIFS’s

unique identifying number and the initials of the analysts who would have opened

the evidence bags and collected the samples. When the State moved to admit the

exhibits, Rashad’s counsel objected:

      Your Honor, and we would object. We don’t believe a proper predicate
      has been laid. More specifically, there’s no testimony before the Court
      as to who collected these items, whether they were inside the vehicle
      prior to Deputy Weaver getting the warrant. So we don’t know who

                                          –8–
        collected them, whether the Wichita County Sheriff’s people collected
        them. There’s no chain of custody.

        And furthermore, under Melinda Diaz2, the analyst here who took the
        samples that she’s going to testify about has not been made available to
        testify of taking the samples and for cross-examination.

The trial court overruled the objection, admitted the exhibits, and granted the defense

a running objection to those items. Ferreira then identified each item and the court

published them to the jury.

        Ferreira also described the results of the DNA analysis conducted on the

items. She told the jury a single source profile with one contributor matching

Lawrence’s DNA profile was found on the sample taken from the left-hand glove,

the sample taken from the black pants, two samples taken from the knife’s handle,

and the sample taken from the bottom of the knife’s blade. Because these were all

single source profiles, Rashad was excluded as being a potential contributor to those

samples. However, analysis of the sample from the hoodie showed a mixture of two

contributors. Both Lawrence and Rashad were included as potential contributors to

the mixture tested from the hoodie. Finally, a sample taken from the back edge of



    2
      In Rashad’s appellate brief, he states Melinda Diaz is the SWIFS serologist “who examined the items
for possible biological fluids and took samples from the items.” Nothing in the record supports Rashad’s
contention the serologist was named Melinda Diaz, and two of the serologist’s diagrams and notes are
signed by analysist Ola Moussa. The State asserts the reference to “Melinda Diaz” was a reference to
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 325-26 (2009), which held the defendant’s right of
confrontation was violated by the admission of affidavits by non-testifying analysts who attested the
substance tested was cocaine.
    The identity of the serologist is irrelevant to our analysis, and Rashad does not assert a Confrontation
Clause argument on appeal. We, therefore, make no determination of trial counsel’s meaning when he
referenced “Melinda Diaz” in his objection.
                                                   –9–
the knife near the handle produced a low level, single source sample in which both

Lawrence and Rashad were included as potential contributors. Ferreira testified

those results were not statistically significant due to the low-level of genetic

information obtained from that sample. In sum, Lawrence was included as a

contributor or potential contributor of the DNA found in samples taken from the

hoodie, the left-hand glove, the black pants, the knife’s handle, and the bottom of

the knife’s blade. Rashad’s counsel lodged no objections to Ferreira’s testimony

regarding the results of the DNA testing.

      The jury convicted Rashad of murder and sentenced him to thirty years in

prison. The trial court overruled Rashad’s motion for new trial, and this appeal

followed.

                           STANDARD OF REVIEW

      We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); Gonzalez

v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses its

discretion when its decision lies outside the zone of reasonable disagreement.

Beham, 559 S.W.3d at 478; Gonzalez, 544 S.W.3d at 370.

                              APPLICABLE LAW

      A chain of custody is conclusively proven if an officer is able to identify that

the officer seized the item of physical evidence, put an identification mark on it,

placed it in the property room, and then retrieved the item being offered on the day

                                        –10–
of trial. Jolliff v. State, No. 05-21-01159-CR, 2023 WL 2926459, at *2 (Tex. App.—

Dallas Apr. 13, 2023, no pet.) (mem. op., not designated for publication) (citing

cases). A chain of custody is sufficiently authenticated when the State establishes

the beginning and the end of the chain, particularly when the chain ends at a

laboratory. Id.; Simmons v. State, No. 05-11-01267-CR, 2013 WL 1614114, at *6

(Tex. App.—Dallas Feb. 20, 2013) (mem. op., not designated for publication) (citing

Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d)). Absent proof of tampering, most problems with the chain of custody do not

affect the admissibility of evidence, but rather go to the weight of the evidence.

Jolliff, 2023 WL 2926459, at *3 (citing Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim.

App. 1985)). Here, Rashad made no allegation in the trial court that any of the

objected-to items had been tampered with and makes no such argument in his brief

before this Court. Because appellant did not raise the issue of tampering, any issues

with the chain of custody go to the weight of the evidence, not its admissibility. See

id.

      Further, Texas does not require a showing of chain of custody for admission

of evidence that is readily identifiable. Hammett v. State, 578 S.W.2d 699, 708 (Tex.

Crim. App. 1979). “The State is not obligated to prove chain of custody on such

items as clothing.” Belcher v. State, 661 S.W.2d 230, 233 (Tex. App.—Houston [1st

Dist.] 1983, pet. ref’d) (citing Hackbarth v. State, 617 S.W.2d 944, 947 (Tex. Crim.

App. [Panel Op.] 1981)). A chain of custody showing is required when scientific

                                        –11–
tests or analyses are necessary to distinguish the evidence’s relevant characteristics.

Jolliff, 2023 WL 2926459, at *2; Davis v. State, 831 S.W.2d 426, 443 (Tex. App.—

Austin 1992, pet. ref’d) (first citing Hammett, 578 S.W.2d at 708; and then citing

Edlund v. State, 677 S.W.2d 204, 210 (Tex. App.—Houston [1st Dist.] 1984, no

pet.)). The chain-of-custody requirement generally applies to indistinguishable

objects, such as drug samples or test results. Davis v. State, 992 S.W.2d 8, 10–11

(Tex. App.—Houston [1st Dist.] 1996, no pet.) (“If the proponent is not able to

identify the physical evidence through distinctive markings or the like, or if the

evidence is fungible, as are drugs or test results, a chain of custody was required.”);

George v. State, No. 02-23-00261-CR, 2024 WL 2971678, at *2 (Tex. App.—Fort

Worth June 13, 2024, no pet. h.) (mem. op., not designated for publication) (quoting

Davis and collecting cases). Ultimately, the trial court must decide “whether the

proponent of the evidence has supplied facts that are sufficient to support a

reasonable jury determination that the evidence he has proffered is authentic.”

Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).

                                    ANALYSIS

      In a single issue, Rashad challenges the trial court’s admission of the

following pieces of evidence:

      1.     State’s Exhibit 27 – the knife that was recovered from the bed at
             the crime scene;

      2.     State’s Exhibit 29 – the dark hoodie appellant was wearing at the
             time of his arrest in Wichita County;

                                        –12–
      3.     State’s Exhibit 30A – the left-hand glove found in the console of
             the Yukon;

      4.     State’s Exhibit 30B – the right-hand glove found in the console
             area of the Yukon; and

      5.     State’s Exhibit 31 – the pair of black pants found in the back seat
             of the Yukon.

The State offered these items into evidence at trial during the testimony of the State’s

final witness, forensic biologist Courtney Ferreira. Rashad’s counsel lodged the

following objection to the admission of those items:

      Your Honor, and we would object. We don’t believe a proper predicate
      has been laid. More specifically, there’s no testimony before the Court
      as to who collected these items, whether they were inside the vehicle
      prior to Deputy Weaver getting the warrant. So we don’t know who
      collected them, whether the Wichita County Sheriff’s people collected
      them. There’s no chain of custody.

      And furthermore, under Melinda Diaz, the analyst here who took the
      samples that she’s going to testify about has not been made available to
      testify of taking the samples and for cross-examination.

The trial court overruled the objection and admitted the exhibits. On appeal, Rashad

notes the SWIFS serologist who took the samples from the items did not testify at

trial. Rashad maintains the State failed to prove the chain of custody of those exhibits

because “[n]o testimony was given regarding what happened to the items after the

DNA testing was completed and how the items arrived at court.” We disagree.

      The State was not required to show a chain of custody because each of these

items was readily identifiable from photos and testimony. See Jolliff, 2023 WL

2926459, at *2 (showing of chain of custody is not required for admission of

evidence that is readily identifiable). The knife, the hoodie, the gloves, and the black
                                          –13–
pants are not items for which the State’s witnesses required scientific tests or

analyses to identify the items and their relevant characteristics. They are readily

identifiable items for which no chain of custody showing is required.

      Moreover, multiple witnesses identified and authenticated the exhibits at trial.

Through that testimony the State established the beginning and the end of the chain

of custody for each item.

      1.     State’s Exhibit 27 – the knife

      Crime scene analyst Cameron Fletcher testified she found the knife in the

comforter at the crime scene, photographed it, collected it, bagged it, and wrote her

name, badge number, and element number on the property tag for the knife. Fletcher

identified State’s Exhibit 27 as the same knife she collected from the comforter at

the crime scene. Detective Gross identified State’s Exhibit 27 as the same knife

shown in the photo taken by Fletcher (State’s Exhibit 22), and as the same knife he

took to SWIFS. Finally, Ferreira identified State’s Exhibit 27 as the knife that was

tested pursuant to her report. She also testified three pieces of information were on

the exhibit: (1) SWIFS’s unique identifying number, (2) the analyst’s initials who

would have opened and collected the sample from the exhibit, and (3) the date the

analyst handled the item.

      2.     State’s Exhibit 29 – the hoodie

      Deputy Ward, the arresting officer in Wichita County, testified she collected

the clothing Rashad wore at the time of his arrest, placed the clothing into paper

                                        –14–
evidence bags, sealed the bags, marked the seals, and later gave the sealed items to

Detective Gross. She identified State’s Exhibit 24 as a photo of Rashad at the time

of his arrest wearing the hoodie in question. Detective Gross told the jury he placed

the sealed items he received from Deputy Ward in a locked container in the trunk of

his car, drove back to Dallas, and delivered the sealed items to SWIFs. He also

identified State’s Exhibit 29 as the hoodie Rashad is seen wearing in State’s Exhibit

24. Detective Gross further testified the sealed bag containing the hoodie that he

placed in his trunk and delivered to SWIFS was in the same bag he identified at trial

as State’s Exhibit 29. Finally, Ferreira identified State’s Exhibit 29 as the hoodie that

was tested at SWIFS. She also testified the following information was on the exhibit:

SWIFS’s unique identifying number, the analyst’s initials, and the date the analyst

handled the item.

      3.     State’s Exhibits 30A, 30B, and 31 – the left-hand glove, the
             right-hand glove, and the black pants

      Special Agent Weaver processed the Yukon after Detective Gross issued the

search warrant and asked DPS to process the vehicle. When he first saw the Yukon,

it was wrapped with crime scene tape and the doors were sealed with evidence tape.

He and another DPS officer who processed the vehicle wore gloves before opening

the doors and while processing the vehicle. Special Agent Weaver identified State’s

Exhibits 30A, 30B, and 31 collectively as the left-hand glove, right-hand glove, and

the black pants he collected from inside of the Yukon. He further testified that, after

processing the vehicle and collecting the items, he sealed the items, marked the seals,
                                        –15–
and gave the sealed bags to Detective Gross. During his testimony, Detective Gross

confirmed he placed the sealed items in a locked container in the trunk of his car,

drove back to Dallas, and delivered the sealed items to SWIFs. Detective Gross

further testified the sealed items he placed in his trunk and delivered to SWIFS were

in the same bags he identified at trial as State’s Exhibits 30A, 30B, and 31. Finally,

Ferreira identified State’s Exhibits 30A, 30B, and 31 respectively as the left-hand

glove, the right-hand glove, and the black pants tested at SWIFS. She also testified

the following was written on each of those exhibits: SWIFS’s unique identifying

number for the specific item, the analyst’s initials who opened and collected the

sample from each item, and the date the analyst handled each item.

      Under this record, we conclude the State established the beginning and the

end of the chain of custody for each of the exhibits Rashad challenges on appeal.

Although the State was not required to establish a chain of custody, the State

sufficiently authenticated the chain of custody for State’s Exhibits 27, 29, 30A, 30B,

and 31. See Jolliff, 2023 WL 2926459, at *2. (“A chain of custody is sufficiently

authenticated when the State establishes the beginning and the end of the chain,

particularly when the chain ends at a laboratory.”).

      Rashad also contends the State failed to establish a chain of custody for the

knife because Fletcher, the analyst who seized the knife at the crime scene, did not

testify when and by whom the knife was taken to the DPD property room or SWIFS,

and Detective Gross did not testify when and from where he retrieved the knife

                                        –16–
before taking it to SWIFS. To preserve error for appellate review, a defendant must

make his complaint to the trial court by a timely request, objection, or motion that

states the grounds for the ruling sought with sufficient specificity to make the trial

court aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A). Further, the complaint

on appeal must comport with the objection at trial. Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.

2002). Rashad did not object to the chain of custody for the knife on the grounds he

now raises on appeal. Those grounds are therefore not preserved for our review. See

See Delgado v. State, 635 S.W.3d 730, 749 (Tex. App.—Dallas 2021, pet. ref’d)

(objections not made at trial were not preserved for appellate review).

      Under this record, we conclude the trial court did not abuse its discretion by

admitting State’s Exhibits 27, 29, 30A, 30B, and 31. Finding no error, we overrule

Rashad’s sole appellate issue and do not address Rashad’s argument that admission

of the exhibits caused him substantial harm. TEX. R. APP. P. 47.1.

                         THE STATE’S CROSS-ISSUE

      In a single cross-issue, the State asks us to modify the judgment to correctly

reflect an affirmative deadly weapon finding. We have the power to modify a

judgment to speak the truth when we have the necessary information to do so. TEX.

R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993);

Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en

banc). To be effective, an affirmative deadly-weapon finding must be an “express”

                                        –17–
determination. Guthrie-Nail v. State, 506 S.W.3d 1, 4 (Tex. Crim. App. 2015). As

such, before modifying a judgment, we must determine whether the absence of the

deadly weapon finding was a clerical error and not a conscious decision by the trial

court. Thorton v. State, No. 05-16-00-CR, 2017 WL 1908629, at * 7 (Tex. App.—

Dallas May 9, 2017, no pet.) (mem. op., not designated for publication).

      Although a deadly weapon finding “may impact a sentence,” it is not part of

a “sentence” as contemplated by the legislature. State v. Ross, 953 S.W.2d 748, 751

(Tex. Crim. App. 1997). “While a deadly-weapon finding does affect a defendant’s

eligibility for probation and parole, it does not alter the range of punishment to which

the defendant is subject, or the number of years assessed.” Ex parte Huskins, 176

S.W.3d 818, 821 (Tex. Crim. App. 2005); Quiroz v. State, No. 03-19-00478-CR,

2021 WL 126777, at *8 (Tex. App.—Austin Jan. 14, 2021, no pet.) (mem. op., not

designated for publication). “[A] trial court is not required to orally announce a

deadly-weapon finding at sentencing if the allegation of use of a deadly weapon is

clear from the face of the indictment.” Huskins, 176 S.W.3d at 821.

      Here, the trial judge did not orally refer to a deadly weapon finding on the

record, and the judgment lists “N/A” under “Findings on Deadly Weapon.”

However, the indictment affirmatively referenced a deadly weapon in the murder

charge:

      That RASHAD SCHENCY KELLY, hereinafter called Defendant, on
      or about the 26th day of October, 2020 in the County of Dallas, State
      of Texas, did unlawfully then and there intentionally and knowingly

                                         –18–
      cause the death of LAWRENCE GUERRA, an individual, hereinafter
      called deceased, by STABBING DECEASED WITH A KNIFE, a
      deadly weapon,

Although the jury did not answer a specific jury question concerning whether Rashad

used a deadly weapon, the jury affirmatively found Rashad “guilty as charged in the

Indictment.” That finding is sufficient to authorize entry of a deadly-weapon finding.

Duran v. State, 492 S.W.3d 741, 746 (Tex. Crim. App. 2016) (one way in which “a

court can determine that the trier of fact actually made an affirmative finding of a

deadly weapon” is when “the indictment specifically alleged a ‘deadly weapon’ was

used (using the words ‘deadly weapon’) and the defendant was found guilty “as

charged in the indictment;’”).

      Accordingly, we sustain the State’s cross-issue and modify the judgment to

include an affirmative deadly weapon finding. See Crumpton v. State, 301 S.W.3d

663, 664 (Tex. Crim. App. 2009) (jury verdict finding defendant guilty “as included

in the indictment” constitutes a finding the defendant used a deadly weapon when

indictment alleges use of a deadly weapon); Polk v. State, 693 S.W.2d 391, 394 (Tex.

Crim. App. 1985) (if indictment by allegation specifically places the issue before the

trier of fact, affirmative finding is de facto made when the defendant is found guilty

“as charged in the indictment”); see also TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d

at 27; Asberry, 813 S.W.2d at 529.




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                                 CONCLUSION

      Under this record, we conclude the trial court did not abuse its discretion by

admitting State’s Exhibits 27, 29, 30A, 30B, and 31 into evidence. We also conclude

the judgment should be modified to include a deadly weapon finding. Accordingly,

we affirm the judgment as modified.




                                          /Robbie Partida-Kipness/
                                          ROBBIE PARTIDA-KIPNESS
                                          JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

230164F.U05




                                       –20–
                                  S
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                 JUDGMENT

RASHAD SCHENCY KELLY,                        On Appeal from the 363rd Judicial
Appellant                                    District Court, Dallas County, Texas
                                             Trial Court Cause No. F20-76833-W.
No. 05-23-00164-CR          V.               Opinion delivered by Justice Partida-
                                             Kipness. Justices Pedersen, III and
THE STATE OF TEXAS, Appellee                 Garcia participating.


   Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED to include an affirmative deadly weapon finding as follows:

      We DELETE “N/A” under “Findings on Deadly Weapon” and
      INSERT “YES, A KNIFE” in its place under “Findings on Deadly
      Weapon[.]”


      As MODIFIED, the judgment is AFFIRMED.



Judgment entered this 12th day of August 2024.




                                      –21–