The indictment charged agg assault by a knife, a deadly weapon, and the jury found Def guilty as charged in the indicment. Does the judge have discretion in failing to enter a deadly weapon finding and grqanting probation? I have found cases that say the judge can enter a finding based upon the verdict/application paragraph. But having trouble finding whether it is error if the judge fails to enter the finding, especially if the judge is assessing punishment.

This seems to be one:

"Here, the indictment specifically alleged the use of a "deadly weapon," and the jury's verdict reads "guilty as charged in the indictment." Therefore, the affirmative finding of deadly weapon is supported by the first basis listed in Polk, as well as the first basis of our holdings in Johnson and Vasquez. See Polk, 693 S.W.2d at 394; Vasquez, 25 S.W.3d at 827-28; Johnson, 6 S.W.3d at 714. Once the jury made the affirmative finding, the trial court was required to enter the finding on the judgment. See Johnson, 6 S.W.3d at 714. In other words, entering the affirmative finding in the judgment was mandatory and the trial court had no discretion. See Johnson, 6 S.W.3d at 714. Therefore, the trial court did not err by entering an affirmative finding that a deadly weapon was used." Harris v. State, Not Reported in S.W.3d, 2003 WL 360264 at *2 (Tex.App.-Houston [1 Dist.] Feb 20, 2003)

Or this:
" We note, however, that appellant was indicted for aggravated robbery with a deadly weapon, to-wit: a firearm. The jury charge included instructions regarding the use of a deadly weapon. Further, the jury found appellant guilty as charged in the indictment. A firearm is a deadly weapon per se. See Tex.Pen .Code Ann. § 1.07(a)(17)(A) (Vernon 1994); Polk v. State, 693 S . W.2d 391, 394 (Tex.Crim.App.1985); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.--Dallas 1991, pet. ref'd). Therefore, by finding appellant guilty as charged in the indictment, the jury found appellant used or exhibited a deadly weapon during the commission of the offense. See Polk, 693 S.W.2d at 394; Asberry, 813 S.W.2d at 529. The code of criminal procedure requires that upon an affirmative finding that a deadly weapon was used or exhibited, the trial court shall enter the finding in its judgment. See Tex.Code Crim.Proc.Ann. art. 42.12, § 3g(a)(2) (Vernon Supp.2001). The trial court had no discretion to do otherwise. See Ex parte Poe, 751 S.W.2d 873, 876 (Tex.Crim.App.1988)"
Linarez v. State, Not Reported in S.W.3d, 2000 WL 1801110 (Tex.App.--Dallas Dec 08, 2000)

If a prosecutor has not had a special issue submitted at guilt and obtained a specific finding from the jury on a special issue, I believe a reasonable argument can be made that the judge is not required to enter a finding. The better practice, particularly for an aggravated assault, is to submit the special issue to the jury at the guilt stage. For more discussion on this, see The Perfect Plea.