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Date: 09-08-2020
Case Style:
Jason B Brooks v. The State of Texas
Case Number: 01-19-00945-CR
Judge: Gordon Goodman
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Daniel C. McCrory
The Honorable Kim K Ogg
Heather Hudson
Defendant's Attorney:
Call 888-853-4800 if you need a Criminal Defense Attorney in Texas.
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This case arises from an assault on a metro bus operator. On March 21, 2018,
the complainant was working the morning shift, when Brooks boarded the bus,
appearing “disgruntled.” When the bus reached its last stop, Brooks approached the
complainant from the rear and stabbed him multiple times in the neck and face with
a knife. The complainant suffered permanent damage to his vision and speech and
developed post-traumatic stress disorder, depression, and anxiety.
On June 11, 2018, Brooks was indicted in cause number 158442 on a charge
of second-degree felony aggravated assault. The indictment alleged that Brooks
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“cause[d] bodily injury to [the complainant] by stabbing him with a deadly weapon”
and that Brooks “used and exhibited a deadly weapon, namely a Knife.”
A little over ten months later, on April 16, 2019, the original charge was
dismissed, and Brooks was re-indicted in cause number 1628272 on a charge of firstdegree felony aggravated assault of a public servant. The new indictment alleged
that Brooks “cause[d] serious bodily injury to . . . the Complainant, while the
Complainant was lawfully discharging an official duty[,] by stabbing the
Complainant with a knife, knowing the Complainant was a public servant.” Unlike
the original indictment, the new indictment did not specifically allege that Brooks
“used and exhibited a deadly weapon.”
On July 10, 2019, Brooks waived his right to a jury trial and pleaded guilty to
the charged offense without an agreed recommendation as to punishment. The trial
court accepted Brooks’s plea and conducted a presentence investigation hearing.
After the hearing, the trial court entered a judgment of conviction sentencing
Brooks to 40 years’ confinement. In the judgment, the trial court affirmatively found
that Brooks used or exhibited a deadly weapon during the commission of the offense
(and thereby extended the date by which Brooks would be eligible for release on
parole).
Brooks appeals.
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Adequate Notice
In a single issue, Brooks contends that the indictment under which he was
prosecuted did not provide adequate notice of the State’s intent to seek an affirmative
finding that Brooks used or exhibited a deadly weapon during the commission of the
offense.
When the State seeks an affirmative finding that a defendant used a deadly
weapon during the commission of an offense, due process requires that the State
provide the defendant with written notice of its intent to seek such a finding. See
Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006) (notice requirement
is “firmly rooted in fundamental precepts of due process and due course of law”
(quoting Ex parte Patterson, 740 S.W.2d 766, 774 n.7 (Tex. Crim. App. 1987),
overruled on other grounds by Ex parte Beck, 769 S.W.2d 525 (Tex. Crim. App.
1989))); Brooks v. State, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993) (per curiam)
(“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.”); Beck, 769
S.W.2d at 526 (“[A]ccused persons are entitled to notice in some form that the use
of a deadly weapon will be a fact issue at the time of prosecution, if the State intends
to pursue the entry of a deadly weapon finding . . . .”). Such notice may be provided
in the indictment.
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To provide adequate notice, the indictment need not specifically allege that
the defendant used a deadly weapon during the commission of the offense. See Beck,
769 S.W.2d at 526–27. Instead, it is enough that the indictment contains allegations
from which a deadly-weapon allegation may be reasonably inferred, see id. at 526,
such as an allegation that the defendant committed the offense with an instrument
that satisfies the Penal Code’s definition of a “deadly weapon,” see, e.g., id.
(indictment alleging defendant caused complainant’s death “by shooting him with
‘a gun’”); Gilbert v. State, 769 S.W.2d 535, 536–37 (Tex. Crim. App. 1989)
(indictment alleging defendant “caused serious bodily injury to [the complainant] by
placing the said complainant into hot liquid”); Diaz v. State, 994 S.W.2d 374, 380
(Tex. App.—Waco 1999, pet. ref’d) (indictment alleging defendant “cause[d]
serious bodily injury to [the complainant] by striking [him] with a pool cue”); Praker
v. State, No. 01-06-00330-CR, 2007 WL 1166381, at *2 (Tex. App.—Houston [1st
Dist.] Apr. 19, 2007, no pet.) (mem. op., not designated for publication) (indictment
alleging defendant “[set] an occupied building on fire and did thereby cause the
[complainant’s] death”); Duron v. State, No. 01-00-01175-CR, 2001 WL 1382272,
at *1 (Tex. App.—Houston [1st Dist.] Nov. 8, 2001, pet. ref’d) (not designated for
publication) (indictment alleging defendant “cause[d] serious bodily injury to . . .
the Complainant . . . by firing a gun in the direction of the Complainant”); see also
Blount v. State, 257 S.W.3d 712, 713–15 (Tex. Crim. App. 2008) (holding that
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indictment alleging defendant committed or attempted to commit aggravated assault
in course of committing burglary gave adequate notice of State’s intent to seek
deadly-weapon finding since aggravated assault can only be committed in two ways,
each of which involves use of deadly weapon).
Here, the indictment under which Brooks was prosecuted alleged that Brooks
“cause[d] serious bodily injury to [the complainant] by stabbing [him] with a knife.”
A knife satisfies the Penal Code’s definition of a “deadly weapon.” See PENAL §
1.07(a)(17)(B) (defining “deadly weapon” to include “anything that in the manner
of its use or intended use is capable of causing death or serious bodily injury”).
Therefore, the indictment contains allegations from which a deadly-weapon
allegation may be reasonably inferred; indeed, necessarily follows. See Beck, 769
S.W.2d at 526.
Brooks nevertheless contends that the indictment did not provide adequate
notice of the State’s intent to seek an affirmative deadly-weapon finding. The
original indictment specifically alleged that Brooks “used and exhibited a deadly
weapon.” But the subsequent indictment under which Brooks was prosecuted did
not. Because of this discrepancy, Brooks argues that it was reasonable for him to
believe the State did not intend on seeking an affirmative deadly-weapon finding.
We disagree.
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The specific allegation contained in the original indictment—filed under a
separate cause number that was dismissed—does not change the fact that a deadlyweapon allegation necessarily follows from the allegations contained in the
subsequent indictment. The subsequent indictment alleged that Brooks committed
the offense “by stabbing the Complainant with a knife.” A knife is a deadly weapon.
Brooks therefore had notice that the State would seek a finding that he used a deadly
weapon in the commission of the offense. It was not reasonable for Brooks to believe
otherwise.
We hold that Brooks was provided adequate notice of the State’s intent to seek
an affirmative finding that he used a deadly weapon during the commission of the
offense. Accordingly, we overrule Brooks’s sole issue.
Outcome: We affirm.
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Defendant's Experts:
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