                                NO. 12-12-00020-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

KEITH A. KING,                                  §           APPEAL FROM THE 217TH
APPELLANT

V.                                              §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §          ANGELINA COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Keith Allen King appeals his convictions for two counts of aggravated assault with a
deadly weapon. Appellant raises five issues relating to the validity of his waiver of the right to
appeal and the sufficiency of the evidence. We affirm.


                                         BACKGROUND
       On March 3, 2011, an Angelina County grand jury indicted Appellant for one count of
aggravated robbery with a deadly weapon and one count of aggravated assault with a deadly
weapon, both alleged to have occurred on May 8, 2010. On November 4, 2011, Appellant
pleaded guilty to the ―offense[s] alleged in the indictment,‖ and the ―lesser included offense [of
aggravated assault] arising out of said indictment‖ with no agreement as to punishment.
Appellant also executed a waiver of his right to appeal ―both guilt/innocence and punishment.‖
       On January 4, 2012, the trial court conducted a sentencing hearing in which the State
presented evidence. The trial court sentenced Appellant to twenty years of imprisonment.
                                    WAIVER OF RIGHT TO APPEAL
       In an unnumbered issue, which we address as his sixth issue, Appellant contends that the
waiver of his right to appeal is not valid. In addressing whether the waiver is valid, we must first
determine whether State‘s Exhibit 1 from the guilty plea hearing (State‘s Exhibit 1) can be
considered as evidence.
       I.      Evidence Not Formally Admitted
       Appellant argues that State‘s Exhibit 1 cannot be considered as evidence because the trial
court never formally admitted it.
       Evidence that is not formally admitted but is on file and considered by the trial court may
also be considered by the appellate court on appeal. See Killion v. State, 503 S.W.2d 765, 766
(Tex. Crim. App. 1973) (considering evidence in support of judgment treated as if formally
admitted because trial court treated evidence as if it had been admitted and defendant did not
object); Rexford v. State, 818 S.W.2d 494, 495-96 (Tex. App.—Houston 1991, pet. ref‘d). In
Killion and Rexford, the respective defendants signed a sworn stipulation that was approved by the
defendant‘s attorneys and the trial court, and was file-marked. See Killion, 503 S.W.2d at 766;
Rexford, 818 S.W.2d at 495. In both cases, the appellate court held that the evidence could be
considered on appeal because it was considered by the trial court. See Killion, 503 S.W.2d at 766;
Rexford, 503 S.W.2d at 495-96.
       Here, the State offered State‘s Exhibit 1, and defense counsel did not object to its
admission. The trial court failed to formally admit the exhibit, but the document contained in the
exhibit was filed with the district clerk. Throughout the hearing, the trial court questioned
Appellant in reference to State‘s Exhibit 1. The exhibit included Appellant‘s signature and was
sworn to before the deputy district clerk. The signatures of Appellant‘s attorney, the prosecutor,
and the trial judge were also contained in the exhibit. Because the parties treated the exhibit as if
it were formally admitted, the exhibit contained their signatures, and the exhibit was filed with the
district clerk, we will consider it as evidence in our analysis. See Killion, 503 S.W.2d at 766.
       II.     Validity of Waiver
       Appellant contends that he waived his right to appeal so that the State would not
recommend any particular sentence. The State argues that ―in a sense, there was a limited plea
bargain in which the State gave consideration in return for [Appellant‘s] plea and waiver of appeal
                                                 2
in that the State agreed to reduce count I from Aggravated Robbery to Aggravated Assault[,]‖ but
maintains that there was ―no other plea bargain.‖
       A criminal defendant has a right to appeal an adverse judgment. See TEX. CODE CRIM.
PROC. ANN. 44.02 (West 2006); TEX. R. APP. P. 25.2. But a defendant may contract away this
right through an express waiver. See Ex parte Broadway, 301 S.W.3d 694, 697-98 (Tex. Crim.
App. 2009); Cox v. State, No. 12-11-00297-CR, 2012 WL 2501031, at *2 (Tex. App.—Tyler June
29, 2012, no pet.) (mem. op., not designated for publication). A valid waiver will prevent a
defendant from appealing without the consent of the trial court. See Monreal v. State, 99 S.W.3d
615, 622 (Tex. Crim. App. 2003). To be valid, the waiver must be voluntary, knowing, and
intelligent. Ex parte Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006).
       Generally, when a defendant waives his right to appeal before sentencing and without an
agreement on punishment, the waiver is not valid. Washington v. State, 363 S.W.3d 589, 589-90
(Tex. Crim. App. 2012); see also Cox, 2012 WL 2501031, at *2; Nichols v. State, 349 S.W.3d
612, 615 (Tex. App.—Texarkana 2011, pet. ref‘d). The reasons supporting this general rule are
that (1) at the time of the waiver, the right of appeal has not yet matured; (2) the defendant cannot
anticipate unknown errors that might occur, and therefore the waiver cannot be made knowingly
and intelligently; and (3) the defendant cannot know with certainty what punishment will be
assessed. See Ex parte Delaney, 207 S.W.3d at 797. But presentencing waivers of the right to
appeal are valid if they are part of a plea bargain, or if the state has given some consideration for
the waiver. See Ex parte Broadway, 301 S.W.3d at 699.
       On the date of Appellant‘s guilty plea, the trial court signed a certification of the right to
appeal that stated, ―[This] is not a plea-bargain case, and the defendant has the right of appeal.‖
Underneath this line was a handwritten notation that stated ―punishment only.‖ The certification
was signed by Appellant, Appellant‘s attorney, and the trial judge. After Appellant‘s sentencing
hearing, however, the trial judge signed a second trial court certification. The second certification
stated, ―[This] is not a plea-bargain case and the defendant has the right of appeal.‖ There were
no handwritten notations contained in the second certification. State‘s Exhibit 1 also reflects that
there was no plea bargain agreement.
       The State‘s argument that there was a ―limited plea bargain‖ is somewhat supported by the
record in that Appellant and the State signed a joint request to try Appellant on the lesser included
                                                 3
offense of aggravated assault in count I of the indictment. State‘s Exhibit 1 also shows that count
I was reduced to the lesser included offense of aggravated assault. But the record does not show
that Appellant‘s waiver of his right to appeal was conditioned upon the State‘s reduction of count I
to the lesser included offense. See Nichols, 349 S.W.3d at 615; cf. Ex parte Broadway, 301
S.W.3d at 697-98 (defendant induced State to consent to waiving jury trial in return for
defendant‘s waiver of right to appeal).
        Absent evidence of a bargain between the State and Appellant, and noting that at the time
of his waiver, Appellant did not know the terms of his punishment, we cannot conclude that
Appellant‘s waiver of appeal was ―voluntarily, knowingly, and intelligently‖ made. See Nichols,
349 S.W.3 at 615. Accordingly, Appellant‘s waiver of the right to appeal is not enforceable and is
fully before this court without limitation. See id. Because we conclude that Appellant‘s waiver
is ineffective, we need not address Appellant‘s fifth issue.1 See TEX. R. APP. P. 47.1.


                                          STANDARD OF REVIEW
        The standard of review announced in Jackson v. Virginia is not applicable when the
defendant knowingly, intelligently, and voluntarily enters a plea of guilty or nolo contendere.
Chindaphone v. State, 241 S.W.3d 217, 219 (Tex. App.—Fort Worth 2007, pet. ref‘d). Once a
defendant enters a valid guilty plea, the state is no longer constitutionally required to prove his
guilt beyond a reasonable doubt. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas 2006,
no pet.). Article 1.15 of the code of criminal procedure requires the state to introduce evidence
showing the guilt of the defendant. TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2006). That
state‘s evidence ―shall be accepted by the court as the basis for its judgment and in no event shall a
person charged be convicted upon his plea without sufficient evidence to support the same.‖ Id.
        To substantiate a plea, there must be evidence ―in addition to, and independent of, the plea
itself to establish the defendant‘s guilt.‖ Menefee v. State, 287 S.W.3d 9, 14 (Tex. Crim. App.
2009). A stipulation of evidence or judicial confession, standing alone, is sufficient to sustain a
conviction upon a guilty plea so long as it establishes every element of the offense charged. See
id. at 13; Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980) (op. on reh‘g). If a

        1
         In his fifth issue, Appellant argues that the State breached an agreement not to recommend a particular
punishment by presenting testimony and evidence calculated to produce a lengthy sentence.
                                                       4
judicial confession or stipulation is defective, the deficiency in the state‘s proof may be
compensated for by other competent evidence in the record. Menefee, 287 S.W.3d at 14.
        In Menefee, the court explained that an accused‘s affirmative answer to the question,
―[A]re you guilty of this charge and are you pleading guilty because you are guilty and for no other
reason,‖ was ―merely an additional admonishment by counsel[,] even though the defendant
‗seemed to be expressly admitting he was guilty of this charge.‘‖ Id. at 15. In determining that a
defendant‘s sworn guilty plea in addition to a stipulation omitting an element of the offense was
insufficient to substantiate a defendant‘s plea, the court adopted the reasoning set forth in Judge
Clinton‘s dissent in Morris v. State, 749 S.W.2d 772 (Tex. Crim. App. 1986) (Clinton, J.,
dissenting on original submission).         Id. at 17. In his dissent, Judge Clinton wrote the following:


                Simply to invest the plea itself with the trappings of an oath does not elevate it to
                the status of evidence. Appellant merely swore to the fact that he understood the
                indictment and was pleading no contest to it. This does not amount to
                confirmation that such allegations are true and correct or that appellant committed
                the offense so alleged. Patently, as modified, the stipulation constitutes neither a
                ―judicial confession‖ nor any other manner of evidence contemplated under
                Article 1.15 as necessary to support the trial court‘s judgment.



Morris, 749 S.W.2d at 777. We apply Menefee in determining whether the record contains
sufficient evidence to substantiate Appellant‘s guilty plea.


                       SUFFICIENCY OF EVIDENCE—AGGRAVATED ASSAULT
        In his first issue, Appellant challenges the sufficiency of the evidence as it relates to count
I of the indictment (the second assault). In his third issue, Appellant challenges the sufficiency of
the evidence as it relates to count II of the indictment (the first assault).
        Appellant asserts three arguments to support his challenge. First, he argues that the
evidence is insufficient because State‘s Exhibit 1 was never formally admitted as evidence and
thus could not be considered. Second, he argues that the plea colloquy did not amount to a
judicial confession. And third, he argues that the evidence the State introduced ―establishes that
Appellant was not criminally responsible for the offense.‖ We have held that State‘s Exhibit 1
could be considered as evidence even though it was not formally admitted. Therefore, we will
address only Appellant‘s second and third arguments in this section. And because the third issue
                                               5
pertains to the first assault, we will address that issue first.
        I.      Applicable Law
        The penal code provides that a person commits aggravated assault if the person commits an
assault and the person causes serious bodily injury to another, or uses or exhibits a deadly weapon
during the commission of the assault. See TEX. PENAL CODE ANN. § 22.02(a) (West 2011). A
person commits an assault if he ―intentionally, knowingly, or recklessly causes bodily injury to
another. . . .‖ Id. § 22.01(a)(1) (West 2011).
        A sworn affirmation that a defendant is pleading guilty to charges in the indictment does
not constitute a judicial confession because he is not confessing to the truth and correctness of the
indictment or otherwise providing substance to the plea. See Menefee, 287 S.W.3d at 17-18;
Baggett v. State, 342 S.W.3d 172, 174 (Tex. App.—Texarkana 2011, pet. ref‘d). If a defendant is
sworn as a witness and admits the truth of the allegations in the charging instrument, this testimony
is a ―judicial confession.‖ See 43A George E. Dix & John M. Schmolesky, Texas Practice Series:
Criminal Practice & Procedure § 51:114 (3d ed. 2011). A ―catch-all‖ stipulation may also
constitute a judicial confession. See Adam v. State, 490 S.W.2d 189, 190 (Tex. Crim. App.
1973); see also Jones v. State, 373 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) (―A written confession approved by the court, and thus considered by the court, can be
sufficient to substantiate a guilty plea even if not introduced into evidence.‖).
        A person is criminally responsible as a party to an offense if the offense is committed by
his own conduct, by the conduct of another for which he is criminally responsible, or by both.
TEX. PENAL CODE ANN. § 7.01(a) (West 2011). A person is criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote or assist the commission of
the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense. TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011).
        In determining whether a person is a party to an offense, we may look to ―events before,
during, and after the commission of the offense.‖ See Gross v. State, 380 S.W.3d 181, 186 (Tex.
Crim. App. 2012). We may also rely on circumstantial evidence to prove party status. Id. The
evidence must show that at the time of the offense, the parties were acting together, each
contributing some part towards the execution of their common purpose. Wooden v. State, 101
S.W.3d 542, 546 (Tex. App.—Fort Worth 2003, pet. ref‘d). Evidence is sufficient to convict
                                                    6
under the law of parties when the defendant is physically present at the commission of the offense
and encourages its commission by acts, words, or other agreement. Id.
         In cases in which the defendant is charged with an aggravated offense, the state must
introduce evidence that the defendant was criminally responsible for the aggravating element. Id.
at 547-48. This means that the defendant must have, with intent to promote or assist the
aggravated assault, solicited, encouraged, directed, aided, or attempted to aid the other person in
committing the aggravating element. See TEX. PENAL CODE ANN. § 7.02(a)(2); Wooden, 101
S.W.3d at 548.2
         II.      Discussion
         Here, the indictment alleged that on or about May 8, 2010, in Angelina County, Appellant


                  did then and there, while in the course of committing theft of property and with
                  intent to obtain or maintain control of said property, intentionally, knowingly, or
                  recklessly cause bodily injury to Floyd Gilmore, Jr. by striking Floyd Gilmore, Jr.
                  with a bottle, and the defendant did then and there use or exhibit a deadly weapon,
                  to-wit: a bottle,

                  [and it is further presented that on or about May 8, 2010 in Angelina County,
                  Texas,] the defendant did then and there intentionally, knowingly, or recklessly
                  cause bodily injury to John Young by striking John Young with a bottle, and the
                  defendant did then and there use or exhibit a deadly weapon, to-wit: a bottle,
                  during the commission of said assault. . . .


Count I of the indictment was reduced to the lesser included offense of aggravated assault on the
date of Appellant‘s guilty plea. The trial court‘s corrected judgment reflects a conviction for the
offense of aggravated assault for counts I and II and an affirmative deadly weapon finding,
specifying a ―bottle‖ as the deadly weapon.
                  A. Plea Colloquy
         The following exchange occurred during Appellant‘s guilty plea hearing:

         2
           Gross and Wooden did not involve an Article 1.15 challenge, but instead concerned a legal sufficiency
review where the state was required to prove the defendants‘ guilt beyond a reasonable doubt. Gross v. State, 380
S.W.3d 181, 184 (Tex. Crim. App. 2012); Wooden v. State, 101 S.W.3d 542, 543 (Tex. App.—Fort Worth 2003, pet.
ref‘d). When a conviction is challenged on Article 1.15 grounds and culpability is based on the law of parties, the
state‘s burden of proof need only embrace every element of the offense charged. See e.g., Jones v. State, 373 S.W.3d
790, 793 (Tex. App.—Houston 2012, no pet.). There is no requirement that the state prove the defendant‘s guilt
beyond a reasonable doubt after the defendant has pleaded guilty to the offense, even if the law of parties applies. See
e.g., id.

                                                           7
         THE COURT: All right. How do you plead to the charge, two counts of aggravated assault?
         Guilty or not guilty?

         THE DEFENDANT: Guilty.

         THE COURT: Okay. Does that mean you are guilty, which means did you do what they accused
         you of?

         THE DEFENDANT: Sir, honestly I – yes, sir.

         THE COURT: I‘m having a little trouble hearing you.

         THE DEFENDANT: Yes, sir. Yes, sir.

         THE COURT: Okay. You did commit the offense of aggravated assault?

         THE DEFENDANT: Yes, sir.



         The record does not show that Appellant was placed under oath prior to the guilty plea
hearing. Further, the plea colloquy contains no acknowledgment that the allegations in the
indictment are ―true and correct,‖ nor does Appellant admit to ―all of the elements of the charged
offense‖ while under oath and in open court. See Menefee, 287 S.W.3d at 13. Even though
Appellant answered affirmatively to the question of whether he did ―what they accused‖ him of,
we cannot conclude, in light of the holding in Menefee, that this affirmation constituted a judicial
confession. See id. at 15. Therefore, we agree with Appellant that the plea colloquy did not
amount to a judicial confession.
         Because the plea colloquy does not amount to a judicial confession, we must determine
whether the State introduced independent evidence to substantiate Appellant‘s guilty plea. See id.
at 18.
                   B. State‘s Exhibit 1
         State‘s     Exhibit    1     is    a    six-page      document    entitled    ―Written     Plea
Admonishments-Waivers-Stipulations.‖            The exhibit reflects the reduction of count I from
aggravated robbery to aggravated assault. The exhibit does not include language that tracks the
wording of the indictment or the statute under which Appellant was charged. But the exhibit
contains an acknowledgment that Appellant read, and his attorney explained, the indictment filed
against him and that he understood ―all of the written waivers, stipulations, and motions herein
                                               8
stated in connection with the plea. . . .‖
         On the fourth page, a paragraph entitled ―Guilty Plea‖ is selected. It states as follows:


                    Understanding and agreeing to all of the above, I freely and voluntarily plead
                    GUILTY and confess my GUILT to having committed each and every element of
                    the offense alleged in the indictment or information by which I have been charged
                    in this cause. Where the State is proceeding on a lesser included offense arising
                    out of said indictment or information, I plead GUILTY and confess my GUILT to
                    having committed each and every element of the lesser included offense only. . . .



Thus, the above portion of State‘s Exhibit 1 contains a ―judicial confession‖ that was independent
of and in addition to Appellant‘s guilty plea. See Adam, 490 S.W.2d at 190; Jones, 373 S.W.3d at
793.    As previously stated, the confession was signed by Appellant and sworn before the clerk,
was offered into evidence, and was treated as if admitted by the parties and the trial court. See
Killion, 503 S.W.2d at 766; see also Jones v. State, 857 S.W.2d 108, 109-111 (Tex.
App.—Corpus Christi 1993, no pet.) (holding that preprinted form containing stipulation of
evidence constituted judicial confession even though not sworn and was sufficient to support
judgment). Although State‘s Exhibit 1 meets the requirements of a judicial confession, we need
not solely rely on the confession in determining whether the requirements of Article 1.15 were
satisfied because the State introduced evidence independent of the confession during the
sentencing hearing. See Menefee, 287 S.W.3d at 14, 18; Dinnery, 592 S.W.2d at 352.
                    C. Evidence Independent of Judicial Confession
         On January 4, 2012, the trial court conducted the sentencing hearing at which the State
presented additional evidence. The State‘s evidence consisted of live testimony and exhibits,
including a transcript of a prior judicial proceeding involving Appellant‘s co-defendant. Without
objection, the trial court also took judicial notice of a six-page PSI report that contained eleven
attachments.        We have reviewed the testimony, the exhibits, and the PSI report and its
attachments. The following is a summary of that evidence.3
         On May 8, 2010, Appellant and his cousin, Kevin Ledet,4 were drinking beer while driving

         3
          We discuss the facts as they occurred chronologically as opposed to how they are alleged in the indictment.
The assault alleged in count II of the indictment occurred prior to the assault alleged in count I.
         4
             Ledet had been recently released from prison and was on parole at the time of the offenses.
                                                            9
around Lufkin in Appellant‘s pickup truck. At about 10:30 that night, John Young, Appellant and
Ledet‘s first victim, was walking down the street alone. Appellant drove past Young, made a
u-turn, and then asked Young if he knew where he could ―find some rocks.‖ When Young gave a
negative reply, Ledet then stated, ―F*** you then punk a**,‖ and struck Young in the face with a
glass Bud Light beer bottle. After Ledet struck Young, both Appellant and Ledet ―began
laughing and then drove away.‖ Having no cellular phone to call police, Young picked up the
beer bottle that had been used in the assault and looked for help. Eventually law enforcement
arrived at Young‘s location and followed a trail of blood that led back to where Young was
assaulted. The officers collected the beer bottle for analysis and photographed Young‘s injury.5
Young testified that the blow from the beer bottle ―broke the bones in the orbit of [his] eye,‖ and
that he has been constantly sick with sinus infections ever since the assault.
        Appellant and Ledet drove to another part of town that night and ended up in an area
common to drug transactions. As they came into the neighborhood, Appellant stopped his truck
on the side of the road where ―a black guy‖ (later identified as Floyd Gilmore, Jr.) was ―walking up
the street.‖6 Appellant and Ledet exited the vehicle at about the same time. Once Gilmore came
near Appellant and Ledet, the two men began yelling ―something like[,]. . . ‗[Y]ou want to beat
down another white girl mother f*****[?]‘‖
        One witness testified that he saw Gilmore approach Appellant‘s truck and confirmed that
Gilmore did nothing to provoke the assault. The witness also testified that he heard a loud noise,
―like a beer bottle had busted,‖ at about the same time that he saw Gilmore being assaulted. No
one saw who struck Gilmore with the bottle, but one witness‘s recitation of events shows that the
two men continued assaulting Gilmore after the bottle was heard breaking. It was not until after
one of the men noticed someone watching that they stopped assaulting Gilmore and left the scene.
As they drove away, Appellant and Ledet could be heard ―laughing out loud like they got joy out
of it, real loud like the 4th of July, you know.‖


        5
            The beer bottle tested positive for Ledet‘s DNA but not Appellant‘s.
        6
            There is conflicting evidence as to who was driving immediately before Gilmore‘s assault. In determining
that Appellant was the driver, we rely on Appellant‘s ―Sentencing Memorandum‖ that was filed on January 3, 2012.
The memorandum was filed in support of Appellant‘s request for community supervision and was considered by the
trial court. The memorandum contained a statement from Appellant‘s co-defendant, labeled as ―Exhibit ‗A‘‖ in
which the co-defendant identifies Appellant as the driver immediately prior to Gilmore‘s assault.
                                                          10
         Meanwhile, Gilmore was left in the road, lying in a pool of his own blood. A shattered
Bud Light beer bottle was nearby. One of the first responders to the scene testified that Gilmore‘s
injuries were consistent with being beaten with a glass bottle and worse. Because of the extensive
nature of his injuries, Gilmore was transported by helicopter to a Tyler hospital. For more than
two months, Gilmore remained hospitalized and incurred medical bills that exceeded one million
dollars. Appellant told law enforcement that Ledet was the one who struck Gilmore with the beer
bottle, but also admitted to assaulting Gilmore.
         III.    Conclusion
         The law of parties serves as the basis for Appellant‘s criminal responsibility as it pertains to
count II of the indictment (the first assault) because Appellant did not physically assault Young.
See TEX. PENAL CODE ANN. §§ 7.01(a), 7.02(a). The evidence shows that Appellant and Ledet
shared a common purpose—obtaining illegal drugs.                See Wooden, 101 S.W.3d at 546.
Appellant was already engaging in criminal activity by drinking alcohol while operating a vehicle.
Appellant saw Young walking alone on the street, turned his vehicle around, drove next to Young,
and initiated contact. Appellant was present when Ledet struck Young in the face with the beer
bottle after Young had told them that he did not ―[mess] with‖ drugs and was unable to help them.
Finally, Appellant drove away laughing with Ledet, leaving Young at the scene.                   Shortly
thereafter, Appellant and Ledet assaulted a second man, Gilmore, who was seen walking down
another street alone.
         We acknowledge that the evidence presented during the sentencing hearing did not directly
show that Appellant ―intended to promote or assist‖ Ledet in committing the aggravated assault
with the beer bottle as a deadly weapon against Young. But proof by circumstantial evidence is
sufficient for a finding of criminal culpability as a party. See Gross, 380 S.W.3d at 186. We
conclude that Appellant‘s judicial confession and the State‘s additional evidence provided
sufficient evidence to substantiate Appellant‘s guilty plea as it pertains to count II of the
indictment. See Menefee, 287 S.W.3d at 14, 18.            Accordingly, we overrule Appellant‘s third
issue.
         Appellant‘s culpability for the assault against Gilmore (the second assault, count I) does
not rest solely on the law of parties. Appellant actively engaged in Gilmore‘s assault before and
after the beer bottle was used. Even if Ledet was the one who used the beer bottle during the
                                                   11
assault, Appellant‘s actions nevertheless encouraged Ledet in committing the aggravating element
of the assault.     See Wooden, 101 S.W.3d at 548. This evidence and Appellant‘s judicial
confession substantiate Appellant‘s guilty plea as it pertains to count I of the indictment.    See
Menefee, 287 S.W.3d at 14, 18. Accordingly, we overrule Appellant‘s first issue.


                                   DEADLY WEAPON FINDINGS
         In his second and fourth issues, Appellant challenges the sufficiency of the evidence
supporting the trial court‘s affirmative deadly weapon finding.         Appellant‘s second issue
challenges the deadly weapon finding relating to the assault against Gilmore (count I) and his
fourth issue challenges the deadly weapon finding relating to the assault against Young (count II).
         ―Deadly weapon,‖ for purposes of this case, means ―anything that in the manner of its use
or intended use is capable of causing death or serious bodily injury.‖ TEX. PENAL CODE ANN.
§ 1.07(a)(17)(B) (West Supp. 2012). A trial court shall enter an affirmative deadly weapon
finding in the judgment if the defendant (1) used or exhibited a deadly weapon during the
commission of a felony offense; or (2) 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.
2012).
         In the context of a prolonged and continuing assault involving a deadly weapon, however,
the requirement that a party to the offense know that a deadly weapon ―would be used‖ does not
necessarily require proof that the party had knowledge before the assault commenced that a deadly
weapon would be used. See Crutcher v. State, 969 S.W.2d 543, 546 (Tex. App.—Texarkana
1998, pet. ref‘d). It is sufficient for a deadly weapon finding against a party to an offense if the
proof shows that, during the course of an offense, it was apparent to the party that a deadly weapon
was being used or was about to be used and that party continued to participate in the commission of
that offense. Id.
         It is immaterial which of the two men—Appellant or Ledet—used the beer bottle during
Gilmore‘s assault. See Crutcher, 969 S.W.2d at 546-47. The evidence shows that Appellant
continued to participate in Gilmore‘s assault after the beer bottle was used and substantiates the
trial court‘s deadly weapon finding. See Menefee, 287 S.W.3d at 18; Crutcher, 969 S.W.2d at
547. Accordingly, we overrule Appellant‘s second issue.       Because the trial court‘s affirmative
                                                12
deadly weapon finding is not count-specific, and we have concluded that the evidence
substantiates the deadly weapon finding, we need not address Appellant‘s fourth issue. See TEX.
R. APP. P. 47.1.


                                                    DISPOSITION
         We have sustained Appellant‘s sixth issue and overruled Appellant‘s first, second, and
third issues. Because those issues are dispositive, we have not addressed Appellant‘s fourth and
fifth issues. See TEX. R. APP. P. 47.1. We affirm the judgment of the trial court.


                                                                SAM GRIFFITH
                                                                    Justice



Opinion delivered May 31, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                          13
                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                              MAY 31, 2013


                                         NO. 12-12-00020-CR


                                        KEITH A. KING,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                            Appeal from the 217th Judicial District Court
                           of Angelina County, Texas. (Tr.Ct.No. 30354)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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