### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00040- CR

Ke ndal Clark Sm ith, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2009 -44 8, H ONO RAB LE GARY L. STEEL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Ap p ell ant Kenda l Clark Smit h pled g uilty to the char g e of ag g rava ted assault causing serious bodily injury

. See Tex. Penal Code § 22.02(a) (1). He was plac ed o n d ef er re d

a d ju d ic a ti o n c o mm

unity supervision, which was later revoke d. The trial court adjudicate d him g uilty of ag g rava

ted assault and assessed a sentenc e of six teen y ear s in prison. I n its written judgme nt, the trial court made a finding that appellant used a deadly wea pon in the commi s s i o n o f t h e o ffe nse. Appellant contends that the deadly -we apon finding must b e vacated beca use the indictment did not give notice that the State would se ek that finding . We will affirm the judg ment.

The indic t m en t orig inally alleg ed that appellant did “intentionally , knowing ly or

rec klessly cause bodily injury to [the victim] , by striking the said [vi ctim] in the fac e with his f ists and during the commission of said assault the said KENDAL CLARK SMITH , did use or exhibit a deadly weapon , to wit , his hands or fist , that in the manner of their use or intended use were capable of causing death or serious bodily injury .” (Emphasis added.) J ust befor e appellant pled g uilty , theindictment was amende d to delete the italicized portion of the indictment set out above, and to insert

the word “ser ious” befor e the term “bodily injury .” This essentially chang ed the ag g rava ted-a ssault alleg ation from a violation of Tex as P enal Code section 22.02(a)(2) to a v i o l at i o n o f Texas Penal Code section 22.02(a )(1)

.

I n pleading gu i l t y , appellant initialed a stipulation and judicial confe ssion that stated that he did “admit and judicially confe ss that I knowing ly and intenti onally and unlawfully committed t h e o ff

en se(s) alleg ed in the indictment

. . . in the manner alleg ed and that such alleg ations are true and corr ect, and that I am in fac t GUI L TY of the offe nse alleg ed.” He also pled
g uilty orally in the plea hear ing on September 13, 2010. The trial court admitted into e vidence the police repor

t stating that appellant punch ed t h e v i cti m in the side of the head, g rabbe d his hair, and ra mmed his face into a car window. The victim told police that the i njury to his jaw re quired
surg ical re p ai r, and that he then contra cted pneumonia as a complication of surg ery . The police report stated that appellant “re adily ” admitted hitting the victim, but contende d that he was responding to provoca tion and threa ts by the victim and his companions. When appellant violated his probation and was adjudi ca t ed guilty in 2012, the trial court found that he used a deadly wea pon when committing this ag g rava ted assault. Appellant contends that the amendment of the indictment that remove d the expres s l an g uag e conce rning a deadly we apon remove d notice that the S tate would seek a deadly -we apon finding and, there fore , that the dea dly -we apon findingmust be vaca ted. 1

We note t hat t here is no alleg ation that the deadly -we apon finding enhanced the offense 1 level or the punishment ra ng e, and also note that the punishment assessed is within the standard second- deg ree felony

rang e for ag g rava ted assault. See Tex. Pena l Code §§ 12.33(a) (punishment

2The court of criminal appea ls has held that sufficie nt notice of the S tate’s intent to

seek a deadly -we apon finding can be provided by lang uag e in an indictment that specific ally mentions a particula

r object or substance and its use with r espec t to death or serious bodily injury

. Narron v. State , 835 S.W .2d 642, 643 (Tex. Crim. App. 1992). Her e, the State alleg ed that appellant

cause d serious bodily injury by hitting the victim with his fists. The court of crimi nal appea ls 2
has held that an alleg ation that a defe ndant comm i t t ed ag g rava ted assault by causing serious bodily injury “nec essar ily implies the use of a deadly wea pon, which is ‘any

thing that in the manner

o f i t s u s e o r intended use is capa ble of causing death or serious bodily injury .’” Blount v. Sta t e , 257 S.W .3d 712, 714 (Tex. Crim. App. 2008); see also Tex. Penal Code §§ 1.07(a) (17)( B) (dea dly

wea pon), 1.07(a) (4 6 ) (ser ious bodily injury), 22.02(a) (1) (assa ult ag g rava ted by causing serious bodily injury); cf. Crumpton v. State , 301 S. W.3d 663, 664 (Tex. Crim. App. 2009) (fa ct-finde r convicting defe ndant of criminally neg lige nt homicide inhere ntly makes deadly -we apon finding and supports trial court’s making express deadly -we apon fi n d ing)

. Be cause the definition of “dea dly

wea pon” includes “any

thing that in the manner of its use or intended use is capa ble of causing death

o r serious bodily injury ,” see Tex. Penal Code § 1.07(a) (17)( B) (empha sis added) , and appellant confe ssed to causing “ser ious bodily injury ,” the court of criminal appea ls opinions compel that we find that the i ndictment provided sufficient not ice of a deadly -we apon allegatio n . See Crumpton , 301 S

. W

. 3 d at 6 64; Blount , 257 S.W .3d at 714. Appellant’s confe ssion to the offe nse indicted, bolstered by

the police r eport, provide d sufficie nt evidence to support the finding

.

rang e for second- deg ree felony is two to twenty y ear s in prison), 22.02(a) (1), (b) (ag g rava ted assault is normally

a sec ond-deg ree felony

). A fist is not a deadly wea

pon per se, but can be such in the manner used depending on the 2 evidenc e shown. Turner v. State , 664 S.W .2d 86, 90 (Tex. Crim. App. 1983). 3CONCLUSION We affir m the judgme nt.

J eff Rose, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose
Affir med Filed: Aug ust 28, 2014 Do Not Publish

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