Opinion
No. 01-06-00330-CR
Opinion issued April 19, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 984058.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
MEMORANDUM OPINION
Appellant Patricia Gayle Praker pleaded guilty to the first-degree felony offense of felony murder. See TEX. PEN. CODE ANN. § 19.02(b)(3), (c) (Vernon 2003). Pursuant to a plea bargain with the State, the trial court deferred an adjudication of guilt and placed Praker on community supervision for a term of ten years. The State subsequently moved to adjudicate Praker's guilt. The trial court adjudicated Praker guilty of felony murder and assessed punishment at thirty years' confinement and a $2,000 fine. In four issues, Praker contends she did not receive adequate notice that the State was seeking a deadly weapon finding, and that the evidence is legally and factually insufficient to support the trial court's deadly weapon finding. We conclude that Praker received adequate notice that the State was seeking a deadly weapon finding, and that the evidence is sufficient to support the finding. We therefore affirm.
Background
Praker's indictment reads as follows:The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, PATRICIA GAYLE PRAKER, hereafter styled Defendant, heretofore on or about APRIL 4, 2004, did then and there unlawfully, intentionally and knowingly commit the felony offense of ARSON by intentionally and knowingly starting a fire with the intent to damage and destroy a building located at 7610 Kempwood in Harris County, Texas and the DEFEDNANT was reckless about whether the burning would endanger the life of a person and the safety of the property of another, and while in the course of and furtherance of the commission of said offense did commit an act clearly dangerous to human life, to-wit: by setting an occupied building on fire and did thereby cause the death of KEVIN KULOW.The trial court's deferred adjudication order includes a space where the court can make affirmative findings. In the space for deadly weapon findings, the trial court marked "N/A." After the State moved to adjudicate Praker's guilt based on allegations that she had violated the terms of her community supervision, the trial court held a hearing and adjudicated Praker guilty of murder. In its judgment, the trial court made an affirmative finding that Praker used a deadly weapon during the commission of the offense. On appeal, Praker requests that we modify the trial court's judgment and delete the deadly weapon finding.
Adequate Notice
In her third and fourth issues, Praker contends she did not receive adequate notice that the State was seeking a deadly weapon finding. The State responds that Praker received adequate notice in the indictment. "A defendant is entitled to notice that the State will seek an affirmative finding that a deadly weapon was used during the commission of the charged crime." Brooks v. State, 847 S.W.2d 247, 248 (Tex.Crim.App. 1993); see also Flenteroy v. State, 187 S.W.3d 406, 411 n. 8 (Tex.Crim.App. 2005). The notice does not have to be included in the indictment under which the defendant is ultimately tried. Brooks, 847 S.W.2d at 248. Rather, the defendant is simply "`entitled to notice in some form that the use of a deadly weapon will be a fact issue at the time of prosecution.'" Id. (quoting Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App. 1989)). The notice must be in writing. Id. The Texas Penal Code defines a "deadly weapon" as "(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PEN. CODE ANN. § 1.07(a)(17) (Vernon Supp. 2006). Depending on the manner of its use, fire can constitute a deadly weapon. Adame v. State, 69 S.W.3d 581, 584 (Tex.Crim.App. 2002); Sellers v. State, 961 S.W.2d 351, 352-53 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). In Ex parte Beck, the indictment alleged that the defendant caused the death of the victim by shooting him with a gun. 769 S.W.2d at 526. The court held that "[i]t is apparent that any allegation which avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, `in the manner of its use . . . capable of causing' (since it did cause) death." Id. (alteration in original) (quoting TEX. PEN. CODE ANN. § 1.07(a)(17)(B)). The court concluded that the allegation in the indictment that appellant caused the death of the victim by shooting him with a gun was sufficient notice that the State was seeking a deadly weapon finding. Id. at 526-27. Here, the indictment alleges that Praker "[set] an occupied building on fire and did thereby cause the death of KEVIN KULOW." The indictment therefore alleges that Praker's act of setting the building on fire caused Kulow's death. According to Beck, an allegation that asserts a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, "in the manner of its use . . . capable of causing death." Id. at 526; see also TEX. PEN. CODE ANN. § 1.07(a)(17)(B). The indictment therefore gave Praker sufficient notice that the State would attempt to prove that the fire was used in a manner that was capable of causing death. See Beck, 769 S.W.2d at 526. We hold that the indictment gave Praker adequate notice that the State was seeking a deadly weapon finding.Legal and Factual Sufficiency
In her first and second issues, Praker contends the evidence is legally and factually insufficient to support the trial court's deadly weapon finding. In Keller v. State, we determined the appropriate standard of review to apply in assessing the legal and factual sufficiency of the evidence in a guilty plea case tried to the court. 125 S.W.3d 600, 604-05 (Tex.App.-Houston [1st Dist.] 2003), pet. dism'd, improvidently granted, 146 S.W.3d 677, 677-78 (Tex.Crim.App. 2004). Unlike most jurisdictions, Texas has a procedural requirement that the State must offer sufficient proof to support a judgment based on a guilty plea in a felony case. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005); Keller, 125 S.W.3d at 604. This does not mean, however, that we use the traditional Jackson standard for reviewing legal sufficiency, or the Johnson standard for reviewing factual sufficiency, in a guilty plea case. Keller, 125 S.W.3d at 604-05 (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979), and Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). As we observed in Keller,Legal-sufficiency-review analysis under Jackson applies only when the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt. The Jackson standard does not apply when a defendant knowingly, intelligently and voluntarily enters a plea of guilty or nolo contendere. There is no federal constitutional requirement that a guilty plea in a state criminal prosecution must be corroborated by evidence of guilt, and Jackson does not apply. A plea of guilty waives all non-jurisdictional defenses, including challenges to the sufficiency of the evidence. Similarly, a defendant who pleads guilty to the court by executing a valid judicial confession waives any challenge to the factual sufficiency of the evidence.Id. at 605 (internal citations and footnote omitted). As we held in Keller, our "`sufficiency' review on appeal of felony pleas of guilty to the court is confined to determining whether sufficient evidence supports the judgment of guilt under article 1.15 of the Code of Criminal Procedure." Id. The State is not required to prove the defendant's guilt beyond a reasonable doubt; the supporting evidence must simply embrace every essential element of the offense charged. McGill v. State, 200 S.W.3d 325, 330 (Tex.App.-Dallas 2006, no pet.). "A judicial confession alone is sufficient evidence to sustain a conviction upon a guilty plea under article 1.15." Stewart v. State, 12 S.W.3d 146, 148 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (citing Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979)). "The judicial confession may take the form of an affirmative acknowledgment by the defendant that the indictment was true and correct." Id. Here, Praker pleaded guilty and confessed that the allegations in the indictment were true. This judicial confession, standing alone, is sufficient under article 1.15 to support the trial court's deadly weapon finding. See McGill, 200 S.W.3d at 330; Keller, 125 S.W.3d at 605-06; Stewart, 12 S.W.3d at 148; Sellers, 961 S.W.2d at 352-53. We therefore hold that the evidence is sufficient to support the trial court's deadly weapon finding.