Opinion
No. 01-05-01037-CV
Opinion filed filed April 26, 2007. Do not publish. Tex. R. App. P. 47.2(b).
On Appeal from the 182nd District Court, Harris County, Texas, Trial Court Cause No. 940251.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
MEMORANDUM OPINION
Appellant, Darian Sebastian Sam, was charged with capital murder. He pleaded guilty to the lesser-included offense of aggravated robbery, without an agreed recommendation as to punishment. Following a presentence investigation (PSI), the trial court entered an affirmative deadly weapon finding and assessed punishment at 60 years' confinement. In three points of error, appellant contends that (1) the evidence is legally and factually insufficient to support the affirmative deadly weapon finding and (2) the trial court erred by taking judicial notice of evidence presented at a codefendant's trial. We affirm.
BACKGROUND
The following summary of the facts was adduced at the PSI hearing. Appellant and his codefendant, Harold Manning, stole a substantial amount of marihuana and cash from the apartment of Randal Ainsworth. During the robbery, Ainsworth and James Wilson were stabbed multiple times. Ainsworth died at the scene and Wilson was severely injured. After their arrest, Manning and appellant each gave statements that implicated the other in the stabbings. Appellant, in fact, gave several inconsistent statements to police. At first, he denied any knowledge that Manning had stabbed the victims. He later said that he learned about the stabbings when Manning told him to watch the news. Later, appellant admitted holding a gun on the victims during the robbery, but said that he waited in the car while Manning went back inside. He later saw Manning toss a knife out of the window of the car. In contrast, Manning's girlfriend stated that both appellant and Manning had knives when they went to Ainsworth's apartment. When appellant and Manning returned, she heard appellant say that he had wiped blood off of his knife and had thrown it away somewhere on Beltway 8.DEADLY WEAPON FINDING
In points of error one and two, appellant contends the evidence is legally and factually insufficient to support a deadly weapon finding based on the law of parties because [a]ppellant did not know a co-actor would use a deadly weapon in committing the offense." However, it was unnecessary for the trial court to make a deadly weapon finding based on the law of parties. Appellant pleaded guilty, and, as a part of his plea, read and signed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession," which contained the following information:In open court and prior to entering my plea, I waive the right of trial by jury. I also waive the appearance, confrontation, and cross-examination of witnesses, and my right against self-incriminattion. The charges against me allege that in Harris County, Texas, DARIAN SEBASTIAN SAM, hereafter styled the Defendant, heretofore on or about NOVEMBER 25, 2002, did then and there unlawfully, while in the course of committing and attempting to commit the ROBBERY of RANDAL AINSWORTH, intentionally cause the death of RANDAL AINSWORTH by STABBING RANDAL AINSWORTH WITH A DEADLY WEAPON, NAMELY A KNIFE.I understand the above allegations and I confess that they are true and that the acts alleged above were committed on November 25, 2002. Appellant's judicial confession is sufficient evidence that he used a deadly weapon, and the record need not provide further proof. Keller v. State, 125 S.W.3d 600, 605 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd). Accordingly, we overrule points of error one and two.