AFFIRM; and Opinion Filed May 16, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-00018-CR

                          THOMAS EDWARD GRACE, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 401st Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 401-80198-2009

                            MEMORANDUM OPINION
                        Before Justices FitzGerald, Fillmore, and Evans
                                 Opinion by Justice Fillmore

        Thomas Edward Grace pleaded guilty to conspiracy to commit aggravated assault. The

trial court sentenced Grace to eight years’ imprisonment and made an affirmative deadly weapon

finding. In one issue, Grace complains he did not receive notice the State intended to seek a

deadly weapon finding. We affirm the trial court’s judgment. We issue this memorandum

opinion because the law to be applied in this case is well-settled. See TEX. R. APP. P. 47.2(a),

47.4.
                                                          Background 1

          Grace was charged with capital murder for the death of Craig Nail. On February 3, 2009,

the State agreed to dismiss the capital murder charge and filed an information alleging that

Grace:

          with intent that aggravated assault, a felony, be committed, agree[d] with Mark
          Lyle Bell and Vera Elizabeth Guthrie-Nail that they would engage in conduct that
          would constitute said offense, to wit: intentionally and knowingly cause serious
          bodily injury to Craig Nail, and Mark Lyle Bell performed an overt act in
          pursuance of said agreement, to wit: Mark Lyle Bell did cause the death of Craig
          Nail by shooting Craig Nail with a firearm.

Grace pleaded guilty to the conspiracy to commit aggravated assault charge and agreed to testify

truthfully at the trials of Guthrie-Nail and Bell. Grace judicially confessed and admitted “to

committing the offense of conspiracy to commit aggravated assault exactly as charged in the

charging instrument[.]” During the plea hearing, Grace answered affirmatively when the trial

court asked whether Grace was pleading guilty to the “offense charged of conspiracy to commit

aggravated assault because you are guilty of the offense exactly as it is alleged in the

information?” The trial court accepted Grace’s guilty plea, “to the charge of conspiracy to

commit aggravated assault as set forth in the information in this matter.” The trial court deferred

a finding of guilt, and recessed the hearing for future sentencing until after the conclusion of

Bell’s and Guthrie-Nail’s trials. Grace subsequently testified at Guthrie-Nail’s trial.

          On December 14, 2012, the trial court resumed the proceedings in this case. The trial

court found Grace guilty of conspiracy to commit aggravated assault and assessed punishment of

eight years’ imprisonment. The trial court made an oral finding that the evidence showed,

beyond a reasonable doubt, that Grace:



     1
       Because Grace does not challenge the sufficiency of the evidence to support the deadly weapon finding, we recite only those facts
necessary to address his issue on appeal.



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       knew that a deadly weapon was going to be used in this conspiracy to inflict the
       serious bodily injury or death of the victim in this case, that [Grace] reasonably
       anticipated the use of that deadly weapon, and that that deadly weapon was indeed
       used by Mr. Bell.

The trial court then made an “affirmative finding of a deadly weapon.” The trial court’s

judgment listed the “Finding on Deadly Weapon” as “YES, A FIREARM,” and included a

special finding that Grace:

       used or exhibited a deadly weapon, namely, A FIREARM, during the commission
       of a felony offense or during immediate flight therefrom or was a party to the
       offense and knew that a deadly weapon would be used or exhibited. TEX. CODE
       CRIM. PROC. ANN. art. 42.12 §3g.

                                           Analysis

       In his sole issue, Grace contends the trial court erred by making an affirmative deadly

weapon finding because he did not receive notice the State was seeking the finding. Grace

specifically argues the information did not use language indicating a deadly weapon was part of

the State’s case, the trial court’s admonishments when Grace pleaded guilty did not intimate the

State was seeking an affirmative deadly weapon finding, and nothing was said during his

testimony at Guthre-Nail’s trial concerning the State seeking an affirmative deadly weapon

finding.

       A deadly weapon finding may be made if a defendant used or exhibited a deadly weapon

during the offense or he was a party to the offense and knew that a deadly weapon would be used

or exhibited. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2013); Lafleur v.

State, 106 S.W.3d 91, 96 n.33 (Tex. Crim. App. 2003). However, a defendant is entitled to

written notice that the State intends to seek an affirmative weapon finding. Ex parte Huskins,

176 S.W.3d 818, 820 (Tex. Crim. App. 2005); Ex parte Brooks, 847 S.W.2d 247, 248 (Tex.

Crim. App. 1993) (per curiam). Failure to give any notice requires that the deadly weapon




                                              –3–
finding be excluded from the judgment. Patterson v. State, 138 S.W.3d 643, 647 (Tex. App.—

Dallas 2004, no pet.).

       The notice the State will seek a deadly weapon finding can be contained in the charging

instrument if it alleges use of a deadly weapon. Ex parte Huskins, 176 S.W.3d at 820. If the

charging instrument alleges the defendant used a particular weapon to “cause the death” of an

individual, it necessarily alleges the defendant used a deadly weapon.      Blount v. State, 257

S.W.3d 712, 714 (Tex. Crim App. 2008) (“‘It 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. Thus, applicant had sufficient notice that the weapon alleged is a deadly weapon and that

her use of a deadly weapon would be an issue in the State’s murder prosecution.’”) (quoting Ex

parte Beck, 769 S.W.2d 525, 526–27 (Tex. Crim. App. 1989)); Ex parte Brown, 773 S.W.2d 332,

333 (Tex. Crim. App. 1989) (allegation in information that applicant, with intent to commit

murder, stabbed victim with knife provided sufficient notice to applicant that State alleged

deadly weapon was used in commission of offense); see also Ex parte Brooks, 847 S.W.2d at

248.

       The information in this case charged Grace with conspiring to commit aggravated assault

with Bell and Guthrie-Nail and that Bell, one of Grace’s co-conspirators, used a firearm during

the offense to cause Nail’s death. A firearm is a deadly weapon per se. See TEX. PENAL CODE

ANN. § 1.07(a)(17)(A) (West Supp. 2013); Huskins, 176 S.W.3d at 820. Accordingly, the

information included the allegations that Grace was a party to the offense and that a deadly

weapon was used during the offense. See Blount, 257 S.W.3d at 714 (“Therefore, an allegation

that a defendant committed aggravated assault gives him notice that the deadly nature of the

weapon alleged in the indictment would be an issue at trial and that the State may seek an

                                               –4–
affirmative finding on the use of the weapon”). Further, Grace pleaded guilty to conspiracy to

commit aggravated assault as alleged in the information and judicially confessed that he

committed the offense exactly as alleged in the information. We conclude Grace received

sufficient notice that the State would seek an affirmative deadly weapon finding. See Blount,

257 S.W.3d at 714; Ex parte Huskins, 176 S.W.3d at 820; Ex parte Carrasco, 750 S.W.2d 222,

225 (Tex. Crim. App. 1988). We resolve Grace’s sole issue against him.

       We affirm the trial court’s judgment.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130018F.U05




                                               –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

THOMAS EDWARD GRACE, Appellant                       On Appeal from the 401st Judicial District
                                                     Court, Collin County, Texas,
No. 05-13-00018-CR        V.                         Trial Court Cause No. 401-80198-2009.
                                                     Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                         Justices FitzGerald and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 16th day of May, 2014.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE




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