Ex Parte James Brooks

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, § 2, V.A.C.C.P. Applicant was convicted after a plea of guilty of burglary of a habitation and the trial court found that a deadly weapon had been used during the commission of the crime. Punishment was assessed at confinement for forty-five years. We filed and set this cause for submission to determine if sufficient notice of the State's intent to seek an affirmative finding of use or exhibition of a deadly weapon was provided Applicant. Applicant was charged in two separate indictments with burglary of a habitation and aggravated sexual assault, both of which were found by the trial court after remand from this Court to have arisen from the same criminal episode. However, only the aggravated sexual assault indictment specifically alleged the use of a deadly weapon. Pursuant to a plea agreement, the State agreed to dismiss the aggravated sexual assault indictment and Applicant pled guilty to burglary of a habitation.1 Because the burglary indictment failed to allege the use of a deadly weapon, Applicant contends he was not given notice that the State would seek an affirmative finding of use or exhibition of a deadly weapon. Applicant therefore contends that such a finding by the trial court was error.