Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause Nos. 14-CR-2296 & 14-CR-2297
consists of Justices Christopher, Busby, and Jewell
BRETT BUSBY, JUSTICE.
Adrian Paul Mills challenges the trial court's entry of
findings, in connection with his convictions of intoxication
manslaughter and assault, that he used a motor vehicle as a
deadly weapon. Appellant contends the entry of these findings
in the judgment violated his due process rights because (1)
the deadly weapon allegation was not encompassed within his
guilty pleas, and (2) the trial court was not the fact-finder
at the punishment phase. We hold the trial court did not err
by entering the deadly weapon findings because appellant pled
guilty to the charges alleged in the indictments, and each
indictment included a deadly weapon allegation. Further,
appellant stipulated in his guilty pleas that the facts
contained in the indictments were true and correct and
constituted evidence in the case. Moreover, even if appellant
could show he did not plead guilty to the deadly weapon
allegations, the trial court could still appropriately
conclude that a deadly weapon was used because a motor
vehicle is capable of causing death or serious bodily injury,
and appellant stipulated to and was found guilty of causing
both death and serious bodily injury with a motor vehicle due
to his intoxication. We therefore affirm the judgments
containing deadly weapon findings.
was driving down Seawall Boulevard in Galveston and reached
80 to 90 miles per hour before driving into oncoming traffic,
where he struck the vehicle of complainants Ashley Boyd and
his wife, Alice Boyd. Testing revealed appellant's
alcohol level was well above the legal limit. Ashley Boyd was
pronounced dead at the scene. Alice Boyd survived but
sustained multiple injuries.
was indicted by a grand jury on one count of intoxication
manslaughter with a vehicle for causing Ashley Boyd's
death, and one count of intoxication assault with a vehicle
for causing serious bodily injury to Alice Boyd. Each
indictment includes two paragraphs between the traditional
opening and closing language, and these paragraphs are
separated by a caption reading "Notice of Intent to Seek
a Deadly Weapon Finding." Below the heading is the
following sentence: "And it is further presented that
the defendant used or exhibited a deadly weapon, to-wit: a
motor vehicle, during the commission of or [the] immediate
flight from said offense."
trial court admonished appellant that intoxication
manslaughter was a second-degree felony that carried a term
of imprisonment between two and twenty years and a possible
fine not to exceed $10, 000. Appellant was also admonished
that intoxication assault was a third-degree felony that
carried a term of imprisonment not less than two years or
more than ten and a possible fine not to exceed $10, 000.
After the admonishments, appellant signed a written plea and
waiver stipulation for each charge and requested that a jury
assess his punishment. Appellant was then arraigned outside
of the presence of the jury and pled guilty to both charges
after a reading of both indictments, including the deadly
weapon language beneath the "Notice" heading.
Following jury selection, the State read each indictment
again in front of the jury, including the deadly weapon
language beneath the "Notice" heading, and
appellant again pled guilty to both charges. The State and
appellant then presented their cases to the jury as to
the State and appellant rested their cases, appellant moved
for a directed verdict on the deadly weapon finding.
Appellant argued his motion should be granted and no special
issue submitted to the jury because the State did not present
any evidence of a deadly weapon during the punishment phase
of the trial. The State asserted that appellant pled guilty
to the use of a deadly weapon when he pled guilty to the
indictments. The trial judge agreed with the State, saying
"my understanding is that she read the indictment
including the notice of a deadly weapon, and your client pled
guilty on both cases. Motion for directed verdict is
the presence of the jury, the trial judge asked if there were
objections to the proposed jury charges, which each included
(based on the deadly weapon plea) an instruction that
appellant would not be eligible for parole until his time
served equaled one-half of the sentence imposed. Both the
State and appellant responded that they had no objections.
The jury, having been instructed that appellant was guilty of
both charges as alleged in the indictments, sentenced him to
twelve years in prison for the offense of intoxication
manslaughter, and ten years in prison with a recommendation
of probation for the offense of intoxication assault.
the jury was dismissed, appellant raised an objection to the
proposed judgments, which included deadly weapon findings.
Appellant argued that the fact finder on that special issue
would have been the jury, and because no affirmative finding
was made by the jury, it would be inappropriate for the trial
court to make the findings. The State responded that
appellant had pled guilty to the indictments, which included
deadly weapon allegations, and thus the trial court could
properly enter deadly weapon findings into the judgments. The
trial court considered the issue and relevant case law
presented by both parties and stated, "the court is
granting or making the deadly weapon finding in the
judgment." Shortly thereafter, while reading the
judgment into the record, the trial court stated, "I
have entered a deadly weapon finding on this based on the
indictment and the plea."
single issue on appeal, appellant contends he did not plead
guilty to using a deadly weapon, and therefore the issue
should have gone to the jury for a factual finding because he
elected to have a jury determine his punishment. In
appellant's view, the trial court's deadly weapon
findings violate his right to due process.
Standard of review and applicable law
trial court entered deadly weapon findings based on
appellant's guilty pleas. A guilty plea is valid when it
"represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant."
State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim.
App. 2013). To enter a voluntary plea, a defendant must
possess "an understanding of the law in relation to the
facts." McCarthy v. United States, 394 U.S.
459, 466 (1969). To enter an intelligent plea, a defendant
must have "sufficient awareness of the
consequences." Ex Parte Palmberg, 491 S.W.3d
804, 807 (Tex. Crim. App. 2016). A guilty plea does not
violate due process even when a defendant enters it while
"operating under various misapprehensions about the
nature or strength of the State's case against him-for
example, misestimating the likely penalty. . . ."
Id. Moreover, when a "defendant waives his
state court remedies and admits his guilt, he does so under
the law then existing; further, he assumes the risk of
ordinary error in either his or his attorney's assessment
of the law and facts." Id. at 808 (quoting
McMann v. Richardson, 397 U.S. 759, 774 (1970)).
Texas criminal proceedings, a defendant must be found guilty
by a jury unless the defendant has entered a guilty plea and
effectively waived his right to a jury trial. Tex. Code Crim.
Pro. Ann. art. 1.15 (West 2005). For the trial court to
accept the guilty plea, the State must introduce evidence
into the record showing the guilt of the defendant, and that
evidence must be accepted by the trial court as the basis for
its judgment. Id. The State's burden to present
evidence may be waived by the defendant, pursuant to a
stipulation and waiver that is approved by the trial court.
deadly weapon is defined as a firearm or anything manifestly
designed, made, or adapted for the purpose of inflicting
death or serious bodily injury; or "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) (West Supp. 2016). If "a deadly weapon . . .
was used or exhibited during the commission of a felony
offense or during immediate flight therefrom, " then
"[o]n an affirmative finding under this
subdivision, the trial court shall enter the finding in the
judgment of the court."
Court of Criminal Appeals explained in Polk v.
State, an affirmative finding can be made in several
circumstances. 693 S.W.2d 391, 394 (Tex. Crim. App. 1985).
First, the fact-finder's verdict on the indictment may
constitute an affirmative finding if the indictment by
allegation specifically places the deadly weapon issue before
the trier of fact and the defendant is found guilty as
charged in the indictment. Id. Second, an
affirmative finding can occur as a matter of law if the trier
of fact finds that a deadly weapon per se (such as a
firearm) has been used in the commission of the offense.
Id. Third, a finding may be made if the trier of
fact responds affirmatively to a special issue submitted
during the punishment stage of trial. Id. More
recently, the Court of Criminal Appeals has added a fourth
circumstance, holding that an affirmative deadly weapon
finding can be made when the jury finds the defendant guilty
as charged in the indictment and the indictment alleges the
defendant caused death or serious bodily injury with a
weapon. Crumpton v. State, 301 S.W.3d 663, 664 (Tex.
Crim. App. 2009) (holding jury necessarily found defendant
used a deadly weapon because a deadly weapon is something
that, in the manner of its use, is capable of causing death,
and jury found defendant did, in fact, cause death).
Court of Criminal Appeals has held that an applicant is
"entitled to notice that the State would pursue an
affirmative finding . . . ." Ex parte
Patterson, 740 S.W.2d 766, 775 (Tex. Crim. App. 1987),
overruled on other grounds by Ex parte Beck, 769
S.W.2d 525 (Tex. Crim. App. 1989). The notice need not appear
in the indictment; however, "it may, and probably should
appear there, preferably in a separate paragraph . . .
." Id. at 776.
The trial court properly entered deadly weapon findings based
on appellant's guilty pleas and ...