Opinion
No. 06-06-00020-CR
Submitted: September 19, 2006.
Decided: October 19, 2006. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 33281-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
The grand jury indictment charging Juan Jasso with evading arrest did not allege Jasso used or exhibited a deadly weapon during the commission of the offense. However, on August 29, 2005, the State filed a "Notice of State's Intention To Seek Affirmative Finding of a Deadly Weapon." That notice provided, Comes now THE STATE OF TEXAS, by and through its Criminal District Attorney of Gregg County, Texas, and hereby gives notice to the Defendant and his counsel of the State's intention to seek, prove, and have submitted to the jury the issue of whether the Defendant used or exhibited a deadly weapon, to-wit: a FIREARM, in the course of the commission of the alleged offense. On November 17, 2005, Jasso waived his right to a jury trial and pled guilty, without the benefit of a negotiated plea agreement, to the offense of evading arrest while using a motor vehicle. See Tex. Penal Code Ann. § 38.04 (Vernon 2003). The written stipulation of evidence, signed by Jasso, his trial counsel, the prosecutor, and the trial court, included a full confession to the allegations contained in the grand jury's indictment. The written stipulation of evidence also included the following language: "And further that I, JUAN JASSO, did then and there use or exhibit a deadly weapon, to-wit: a firearm, in the course of the commission of the alleged offense." The trial court found Jasso guilty and assessed his punishment at ten years' imprisonment. Jasso now appeals, contending the trial court erred by entering an affirmative deadly weapon finding when the original grand jury indictment did not contain such an allegation. "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) (per curiam) (referencing Ex parte Patterson, 740 S.W.2d 766, 775 (Tex.Crim.App. 1987)). "Such notice need not be contained in the indictment under which the defendant is ultimately tried." Brooks, 847 S.W.2d at 248 (citing Patterson, 740 S.W.2d at 776); see also Flenteroy v. State, 187 S.W.3d 406, 411 (Tex.Crim.App. 2005). "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.'" Brooks, 847 S.W.2d at 248 (quoting Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App. 1989)); see also Ex parte Minott, 972 S.W.2d 760, 762 (Tex.Crim.App. 1998). The State's notice of August 29, 2005, provided Jasso with the required notice and had been on file for more than seventy-five days before Jasso's guilty plea. We overrule Jasso's sole point of error and affirm the trial court's judgment.