While the presence of the accused at the scene of the crime is not alone sufficient to prove that person is a party to the crime, it is a circumstance tending to prove guilt, which, combined with other facts, may suffice to show that the accused was a participant. Escobar v. State, 799 S.W.2d 502, 506 (Tex. App.—Corpus Christi 1990, writ ref'd) (citing Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987)). Moreover, in determining whether the accused participated as a party, the trial court may look to events before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.
This principle is exemplified in a number of cases in which this Court and the courts of appeals have upheld affirmative findings of the use of a deadly weapon. See, Walker, supra, (defendant used automobile as deadly weapon by colliding with victim); Tyra, supra (same); Stanul v. State, 870 S.W.2d 329 (Tex.App. — Austin 1994) (defendant used floor as deadly weapon by striking victim's head against it); Lozano v. State, 860 S.W.2d 152 (Tex.App. — Austin 1993) (defendant used lighter as deadly weapon by using it to start a fire); Enriquez v. State, 826 S.W.2d 191 (Tex.App. — El Paso 1992) (defendant used soft drink bottle as deadly weapon by striking victim with it); Escobar v. State, 799 S.W.2d 502 (Tex.App. — Corpus Christi 1990) (baseball bat used to bludgeon victim constituted deadly weapon); Cooper v. State, 773 S.W.2d 749 (Tex.App. — Corpus Christi 1989) (defendant used hands as a deadly weapon by dropping infant to floor); Rice v. State, 771 S.W.2d 599 (Tex.App. — Houston [14th Dist.] 1989) (defendant used gasoline as deadly weapon by pouring it over victim and then igniting it); Johnson v. State, 770 S.W.2d 72 (Tex.App. — Texarkana 1989) (defendant used hands and feet as deadly weapons by beating and kicking victim to death); Roberts v. State, 766 S.W.2d 578 (Tex.App. — Austin 1989) (defendant used truck as deadly weapon in colliding with car, injuring and killing occupants); Harper v. State, 753 S.W.2d 516 (Tex.App. — Houston [1st Dist.] 1988) (defendant used rope or cord as deadly weapon by tying it around victims's neck, restricting her breathing); Shockley v. State, 747 S.W.2d 470 (Tex.App. — Houston [1st Dist.] 1988) (defendant used fabric or hands as deadly weapon by strangling victim); Cervant
This point is well-reasoned in the brief of the amicus curiae: See, e.g., Martinez v. State, 883 S.W.2d 771 (Tex.App. — Ft. Worth 1994, no pet. history)) (automobile was deadly weapon in involuntary manslaughter, driving while intoxicated case); Hill v. State, 881 S.W.2d 897 (Tex.App. — Ft. Worth 1994, pet. granted) (metal rods, belts, and locks used to restrain child from obtaining food were deadly weapons in injury to child by omission case); Stanul v. State, 870 S.W.2d 329 (Tex.App. — Austin 1994, pet. granted) (floor against which defendant struck victim's head was deadly weapon); Escobar v. State, 799 S.W.2d 502 (Tex.App. — Corpus Christi 1990, pet. ref'd) (baseball bat was deadly weapon in murder case); Lozano v. State, 860 S.W.2d 152 (Tex.App. — Austin 1993, pet. ref'd) (lighter used to start fire that killed or badly burned five people was deadly weapon); Johnson v. State, 770 S.W.2d 72 (Tex.App. — Texarkana 1989) (hands and feet used to strike victim were deadly weapon in murder case), aff'd, 815 S.W.2d 707 (Tex.Crim.App. 1991); Roberts v. State, 766 S.W.2d 578 (Tex.App. — Austin 1989, no pet.) (truck was deadly weapon in aggravated assault with deadly weapon case); Shockley v. State, 747 S.W.2d 470 (Tex.App. — Houston [1st Dist.] 1988, no pet.) (fabric or hands were deadly weapon in murder by strangulation case); Kirkpatrick v. State, 747 S.W.2d 521 (Tex.App. — Ft. Worth 1988, pet ref'd) (hands were deadly weapon in murder case); Fegurgur v. State, 734 S.W.2d 103 (Tex.App. — Austin 1987, no pet.) (knife or knuckles were deadly weapon in murder case); Cervantes v. State, 706 S.W.2d 685 (Tex.App. — Houston [14th Dist.] 1986, n
Although light in weight, they believed the gun could be used to hit Bush about the face and eye, and concluded it was a deadly weapon capable of causing bodily injury. Stanul v. State, 870 S.W.2d 329 (Tex. App.-Austin 1994, pet. dism'd, pet. ref'd [2 pets.]) (defendant used floor as deadly weapon by striking victim's head against it); Lozano v. State, 860 S.W.2d 152 (Tex. App.-Austin 1993, pet. ref'd) (defendant used lighter as deadly weapon by using it to start a fire); Enriquez v. State, 826 S.W.2d 191 (Tex. App.-El Paso 1992, no pet.) (defendant used soft drink bottle as deadly weapon by striking victim with it); Escobar v. State, 799 S.W.2d 502 (Tex. App.-Corpus Christi 1990, pet. ref'd) (baseball bat used to bludgeon victim constituted deadly weapon); Cooper v. State, 773 S.W.2d 749 (Tex. App.-Corpus Christi 1989, no pet.) (defendant used hands as a deadly weapon by dropping infant to floor); Rice v. State, 771 S.W.2d 599 (Tex. App.-Houston [14th] 1989, no pet.) (defendant used gasoline as deadly weapon by pouring it over victim and igniting it); Johnson v. State, 770 S.W.2d 72 (Tex. App.-Texarkana 1989) (defendant used hands and feet as deadly weapons by beating and kicking victim to death), aff'd, 815 S.W.2d 707 (Tex. Crim. App. 1991); Roberts v. State, 766 S.W.2d 578 (Tex. App.-Austin 1989, no pet.) (defendant used truck as deadly weapon in colliding with car, injuring and killing occupants); Harper v. State, 753 S.W.2d 516 (Tex. App.-Houston [1st] 1988, pet. ref'd) (defendant used rope or cord as deadly weapon by tying it around victim's neck, restricting her breathing); Shockley v. State, 747 S.W.2d 470 (Tex. App.-Houston [1st] 1988, no pet.) (defendant used fab
Although light in weight, they believed the gun could be used to hit Bush about the face and eye, and concluded it was a deadly weapon capable of causing bodily injury. Stanul v. State, 870 S.W.2d 329 (Tex.App.-Austin 1994, pet. dism'd, pet. ref'd [2 pets.]) (defendant used floor as deadly weapon by striking victim's head against it); Lozano v. State, 860 S.W.2d 152 (Tex.App.-Austin 1993, pet. ref'd) (defendant used lighter as deadly weapon by using it to start a fire); Enriquez v. State, 826 S.W.2d 191 (Tex.App.-El Paso 1992, no pet.) (defendant used soft drink bottle as deadly weapon by striking victim with it); Escobar v. State, 799 S.W.2d 502 (Tex. App.-Corpus Christi 1990, pet. ref'd) (baseball bat used to bludgeon victim constituted deadly weapon); Cooper v. State, 773 S.W.2d 749 (Tex.App.-Corpus Christi 1989, no pet.) (defendant used hands as a deadly weapon by dropping infant to floor); Rice v. State, 771 S.W.2d 599 (Tex.App.-Houston [14th Dist.] 1989, no pet.) (defendant used gasoline as deadly weapon by pouring it over victim and igniting it); Johnson v. State, 770 S.W.2d 72 (Tex.App.-Texarkana 1989) (defendant used hands and feet as deadly weapons by beating and kicking victim to death), aff'd, 815 S.W.2d 707 (Tex.Crim.App. 1991); Roberts v. State, 766 S.W.2d 578 (Tex.App.-Austin 1989, no pet.) (defendant used truck as deadly weapon in colliding with car, injuring and killing occupants); Harper v. State, 753 S.W.2d 516 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd) (defendant used rope or cord as deadly weapon by tying it around victim's neck, restricting her breathing); Shockley v. State, 747 S.W.2d 470 (Tex.App.-Houston [1st Dist.] 1988, no pet.) (defendan
However, when utilized in a manner which causes or has the potential to cause death or serious bodily injury, objects which are not inherently dangerous may be found to be deadly weapons under Section 1.07(a)(17)(B) of the Texas Penal Code. See Hill v. State, 913 S.W.2d 581 (Tex. Crim. App. 1996) (the use of belts, chains, and locks to prevent a child from eating constituted the use of a deadly weapon in denying food to the child); Stanul v. State, 870 S.W.2d 329 (Tex. App.-Austin 1994, pet. dism'd, pet ref'd [2 pets.]) (defendant used floor as deadly weapon by striking victim's head against it); Lozano v. State, 860 S.W.2d 152 (Tex. App.-Austin 1993, pet. ref'd) (defendant used lighter as deadly weapon by using it to start a fire); Enriquez v. State, 826 S.W.2d 191 (Tex. App.-El Paso 1992, no pet.) (defendant used soft drink bottle as deadly weapon by striking victim with it); Escobar v. State, 799 S.W.2d 502 (Tex. App.-Corpus Christi 1990, pet. ref'd) (baseball bat used to bludgeon victim constituted deadly weapon); Cooper v. State, 773 S.W.2d 749 (Tex. App.-Corpus Christi 1989, no pet.) (defendant used hands as deadly weapon by dropping infant to floor); Rice v. State, 771 S.W.2d 599 (Tex. App.-Houston [14th Dist.] 1989, no pet.) (defendant used gasoline as deadly weapon by pouring it over victim and then igniting it); Johnson v. State, 770 S.W.2d 72 (Tex. App.-Texarkana 1989), aff'd, 815 S.W.2d 707 (Tex. Crim. App. 1991) (defendant used hands and feet as deadly weapons by beating and kicking victim to death); Roberts v. State, 766 S.W.2d 578 (Tex. App.-Austin 1989, no pet.) (defendant used truck as deadly weapon in colliding with car, injuring and killing occupants); Harper v. State, 753 S.W.2d 516 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd) (defendant used rope or cord as deadly weapon by tying it around victim's neck, restricting her breathing); Shockley v. State, 747 S.W.2d 470 (Tex. App.-Houston [1st Dist.] 1988, no pet.
Although the mere presence at the scene of a crime is not alone sufficient to prove that a person is a party to the offense, it is a circumstance that, when combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987); Escobar v. State, 799 S.W.2d 502, 506 (Tex. App.-Corpus Christi 1990, pet ref'd). The fact finder may consider events occurring before, during or after the commission of the offense in determining whether the defendant is criminally responsible for an offense committed by another.
While presence of an accused at the scene of an offense is not alone sufficient to support a conviction, it is a circumstance tending to prove guilt which, with other facts, may suffice to show that the accused was a participant. Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App. 1979); Mares v. State, 801 S.W.2d 121, 127-28 (Tex.App. — San Antonio 1990, no pet.); Escobar v. State, 799 S.W.2d 502 (Tex.App. — Corpus Christi 1990, pet. ref'd). Activities before, during, or after the offense are relevant to determine whether the defendant was acting as a party.
The trier of fact may look at events occurring before, during, and after the offense in determining whether the defendant participated in the offense. Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987); Escobar v. State, 799 S.W.2d 502, 506 (Tex.App. — Corpus Christi 1990, pet. ref'd). The indictment charged appellant and two accomplices with capital murder for intentionally and knowingly causing the deaths of Michael Lavesphere and David Ray Taylor by shooting them with a firearm.
Several courts of appeal have addressed the issue raised by appellant — the application of TEX.CODE CRIM.PROC.ANN. art. 42.12 § 3g(a)(2) (Vernon Supp. 1991) (hereinafter referred to as "Section 3g(a)(2)") and TEX.CODE CRIM.PROC.ANN. art. 42.18 § 8(b) and (c) (hereinafter referred to as "Section 8(b) and (c)").E.g. Moone v. State, 802 S.W.2d 101, 105 (Tex.App. — Austin 1990, pet. ref'd); Ortega v. State, 792 S.W.2d 145 (Tex.App. — Amarillo 1990, pet. ref'd); Escobar v. State, 799 S.W.2d 502, 506-507 (Tex.App. — Corpus Christi 1990, no pet.); and Morgan v. State, 775 S.W.2d 403 (Tex.App. — Houston [14th Dist.] 1989, no pet.); Chandler v. State, 689 S.W.2d 332, 335-336 (Tex.App. — Fort Worth 1985, pet. ref'd). Section 3g(a)(2) prohibits the granting of probation "to a defendant when it is shown that the defendant used or exhibited a deadly weapon as defined in Sections 1.07(a)(11), Penal Code, during the commission of a felony offense or during immediate flight therefrom.