IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0125-14
VERA ELIZABETH GUTHRIE-NAIL, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
COLLIN COUNTY
K EASLER, J., filed a dissenting opinion in which H ERVEY and Y EARY, JJ.,
joined.
DISSENTING OPINION
The central issue in this case is whether the judge, in accepting Vera Guthrie-Nail’s
guilty plea and finding her guilty of conspiracy to commit capital murder as alleged in the
indictment expressly alleging the use of a deadly weapon, has the discretion to nonetheless
withhold a deadly-weapon finding. Looking solely to a distinguishable case and using a
series of inferential leaps, the Court is satisfied that he does. The Court then incorrectly
approaches the nunc pro tunc judgment’s propriety as if it were an issue of fact requiring a
GUTHRIE-NAIL DISSENT—2
remand to develop a factual record surrounding the new judgment’s entry. Because I believe
the Court errs in both respects, I dissent.
I.
The Court relies exclusively on Hooks v. State1 to support its conclusion that judges
may, at will, withhold deadly-weapon findings. But it is not particularly convincing on the
issue that the Court uses it for. Hooks presented the Court with a case that required it to
address the repercussions of the lack of entering a deadly-weapon finding. Hooks challenged
the imposition of probation for the offense of aggravated assault by threat with a firearm, a
deadly weapon per se.2 We held that even if the judge “made” a deadly-weapon finding, the
judge’s failure to “enter” the judgment did not render Hook’s probation void.3 Hooks cannot
support the weight the Court places on it. The opinion did not address whether the absence
of a deadly-weapon finding in a judgment was proper nor did it involve a judgment nunc pro
tunc. Instead, Hooks only addressed the consequences of judgments lacking a memorialized
deadly-weapon finding. The Court withheld judgment on whether “the trial judge “simply
declined to enter the additional affirmative finding in the judgment” and did not expand the
grant of review to consider that separate question,4 the exact proposition for which the Court
1
Hooks v. State, 860 S.W.2d 110, 111 (Tex. Crim. App. 1993).
2
Id. at 111.
3
Id. at 113–14.
4
Id. at 114, n.7.
GUTHRIE-NAIL DISSENT—3
cites this case. The Court’s reading of Hooks, and the necessary implication it finds within
its logic, does not ring true, especially when the implication is something we expressly
rejected addressing.
Moreover, before deciding Hooks, this Court decided Ex parte Poe.5 There, we noted
that Texas Code of Criminal Procedure article 42.12, § 3g(a)(2) requires a two-step process
regarding deadly-weapon findings: (1) the trier of fact must make an affirmative deadly-
weapon finding, and (2) the finding shall be entered into the court’s judgment.6 Once a
deadly-weapon finding is made, the judge is statutorily obligated to enter the deadly-weapon
finding in the judgment.7 “The trial judge has no discretion to do otherwise. Consequently,
the failure of the trial judge to do so was not an error of judicial reasoning but rather an error
of a clerical nature.”8 Therefore, we held that entering a judgment nunc pro tunc to reflect
what the factfinder—not necessarily limited to a jury—determined was proper.9
Furthermore, Hooks’s significance wanes in light of our more recent precedents. In
Ex parte Huskins, the indictment alleged that Huskins “did then and there knowingly
discharge a firearm at and in the direction of a vehicle, and [he] was then and there reckless
5
751 S.W.2d 873 (Tex. Crim. App. 1988).
6
Id. at 875.
7
Id. at 876.
8
Id.
9
See id.
GUTHRIE-NAIL DISSENT—4
as to whether the vehicle was occupied.”10 After the judge adjudicated Huskins’s deferred
adjudication, the court’s judgment reflected a deadly-weapon finding. Huskins complained
that the deadly-weapon entry was improper. When Huskins pleaded guilty to the deadly-
conduct allegation, he confessed that he was the same person named in the indictment and
that he committed the offense changed in the indictment.11 Although the case did not involve
a judgment nunc pro tunc, we held that “[b]y properly admonishing [Huskins] and then
accepting his guilty plea to the indictment, the trial court necessarily determined that
[Huskins] used a deadly weapon in the commission of the offense,” and the entry of the
finding was proper.12
Crumpton v. State,13 an authority noticeably absent from the Court’s opinion, also
limits the extent the Court wishes to stretch Hooks.14 Crumpton added to the “making” side
of deadly-weapon findings. It held that,
If a deadly weapon is anything that is capable of causing death or serious
bodily injury, and the indictment alleges that the defendant caused death or
serious bodily injury, and the jury finds the defendant guilty as charged in the
indictment, the verdict is necessarily a finding that a deadly weapon was
10
Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).
11
Id.
12
Id. at 819–20.
13
301 S.W.3d 663 (Tex. Crim. App. 2009).
14
See id. at 668–69 (Keller, P.J., dissenting) (finding Crumpton “inconsistent with
the reasoning in Hooks v. State.”).
GUTHRIE-NAIL DISSENT—5
used.15
It follows that, after a finding of guilt for an offense defined by an indictment alleging the
use of a deadly weapon, a deadly-weapon finding is necessarily made. Article 42.12, §
3g(a)(2) and Poe then require the deadly-weapon finding to be entered. The entry of a
deadly-weapon finding is not a discretionary act; it must follow the making of a deadly-
weapon finding.
The Crumpton logic follows that found in Polk v. State, noting that in some instances
an affirmative finding will arise as a matter of law.16 The Polk Court held that a trier of fact
may make a deadly-weapon finding by virtue of simply convicting a defendant based upon
an indictment that expressly contained and required a deadly-weapon finding.17 “If the
indictment by allegation specifically places the issue before the trier of fact . . . , then an
affirmative finding is de facto made when the defendant is found guilty ‘as charged in the
indictment.’”18 “If the trier of fact finds that a pistol has been used in the commission of the
offense . . . , then it has found that a deadly weapon has been used since a pistol is a deadly
weapon per se.”19 In this case, the trier of fact made a deadly-weapon finding as a matter of
15
Crumpton, 301 S.W.3d at 665.
16
Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985).
17
Id.
18
Id.
19
Id.
GUTHRIE-NAIL DISSENT—6
law in adjudicating Guthrie-Nail guilty as charged in the indictment that specifically included
the term “firearm”—a deadly weapon per se.20
To argue that the cases are reconcilable based on the trier of fact—judge versus jury—
advances an artificial distinction between the two. In the present context, both are charged
with deliberating on the evidence in determining guilt or innocence within the confines of
the charging instrument containing the offense’s statutory elements of the offense and
descriptive averments. Furthermore, Article 42.12, § 3g(a)(2) itself does not differentiate
between finders of fact. There is no manifest legislative intent from the statute’s plain
language that deadly-weapon findings and their entry operate differently depending on the
trier of fact. The statute makes no mention of any discretionary role served by the presiding
judge. It simply provides that once a deadly-weapon finding is made, it shall be entered in
the judgment. And in the event that the deadly weapon was a firearm, that must also be
entered.
II.
Even assuming that Hooks permits judges to discretionarily withhold a deadly-weapon
finding, the record does not suggest that is what happened here. The record as a whole
establishes that the error corrected by the nunc pro tunc was clerical, not an impermissible
judicial error.21 The contested judgment’s validity turns on whether the judge necessarily
20
T EX. P ENAL C ODE § 1.07(a)(17).
21
See Ex parte Poe, 751 S.W.2d at 876.
GUTHRIE-NAIL DISSENT—7
made an affirmative deadly-weapon finding contemplated by Article 42.12, § 3g(a)(2) when
he accepted Guthrie-Nail’s guilty plea and judicial confession to Count II and found her
guilty of Count II as alleged in the indictment. The “N/A” that appeared in the original
judgment’s place designated for a deadly-weapon finding has an unexplained hold on the
Court. The Court finds the “N/A” “seems to be an express determination that a deadly[-
]weapon finding was not made.”22 However, this view falsely presumes that the “N/A” is not
the clerical error the judge sought to correct in the first place by entering the judgment nunc
pro tunc. The Court seemingly would affirm the judgment nunc pro tunc if the deadly-
weapon finding was orally pronounced at Guthrie-Nail’s sentencing.23 Although a judge
may, he does not need to orally pronounce a deadly-weapon finding in pronouncing sentence
when the use of a deadly weapon is clear from the face of the indictment.24 Why must an
optional pronouncement be required to overcome the Court’s exalted “N/A”?
I would find the judgment nunc pro tunc properly entered because the judge
necessarily made a deadly-weapon finding, and therefore its entry was statutorily required.
In the plea hearing, Guthrie-Nail responded affirmatively when the judge asked her, “Did you
commit this crime just as it’s set forth in Count II of this indictment?” The State offered
Guthrie-Nail’s judicial confession in which she confessed “to committing the offense of
22
Ante, at 6 (emphasis in original).
23
Id.
24
Ex parte Huskins, 176 S.W.3d at 821.
GUTHRIE-NAIL DISSENT—8
conspiracy to commit capital murder exactly as charged in the charging instrument or as a
lesser offense charged in the (Count II of the indictment).” 25 After admitting the State’s
evidence in support of the plea, the judge found “beyond a reasonable doubt that you
[Guthrie-Nail] are guilty of the first[-]degree felony offense of conspiracy.”
The repeated references to the indictment’s Count II are telling in two ways. Count
II specifically alleged capital murder as the object of the conspiracy, which by its definition
requires the use of a deadly weapon.26 Additionally, the indictment alleged that Guthrie-Nail
agreed with her co-conspirators that one of their number would cause the death of Craig Nail
and that the overt act performed involved Nail’s death with a firearm, a deadly weapon per
se.27 The indictment’s language and the present facts surrounding Guthrie-Nail’s plea are
distinguishable from those we have found insufficient to warrant a deadly-weapon finding.28
Here, the indictment specifically alleged a deadly weapon per se, and the plea hearing
contained a judicial finding that Guthrie-Nail was guilty beyond a reasonable doubt “as set
forth in the indictment.” Further, on the date of the plea, the trial docket sheet bears a
notation germane to this case’s question. In its original typeface and formatting, it contains
25
Parentheses in original.
26
See Crumpton, 301 S.W.3d at 664.
27
T EX. P ENAL C ODE § 1.07(a)(17).
28
See, e.g., Ex parte Dopps, 723 S.W.2d 669 (Tex. Crim. App. 1986) (vacating
the judgment nunc pro tunc adding a deadly-weapon finding because the manslaughter
did not allege a deadly weapon per se nor particularly alleged the weapon was a deadly
weapon by the manner of its use).
GUTHRIE-NAIL DISSENT—9
the following:
Sentence (Judicial Officer: Rusch, Mark)
2. Conspiracy to Commit CAPITAL MURDER BY TERROR THREAT/OTHER
FELONY (Conspired)
DC-Texas Dept of Criminal Justice - Prison
Confinement to Commence 09/12/2012
50 Years , TDC, Department of Corrections
Deadly Weapon Finding 42.12
It is not dispositive of the issue, but including “Deadly Weapon Finding 42.12” on the
docket sheet is additional evidence that, when viewed in the totality of the sentencing,
strongly supports the conclusion that the judge made an affirmative deadly-weapon finding.29
Although the indictment and judicial confession may not support a deadly-weapon finding
on the direct liability theory under Article 42.12, § 3g(a)(2)—a finding that she personally
used or exhibited a deadly weapon—it was sufficient under a vicarious liability theory.
Section 3g(a)(2) also commands the deadly-weapon finding’s entry if there is an affirmative
finding that the defendant “was a party to the offense and knew that a deadly weapon would
be used or exhibited.” I find no impediment in imposing a deadly-weapon finding for the
conspiracy offense as alleged in this indictment, an offense that imposes criminal culpability
in a manner legally akin to vicarious or party liability.30 I therefore would conclude that, by
29
See generally Stokes v. State, 277 S.W.3d 20, 24–25 (Tex. Crim. App. 2009)
(considering the trial judge’s docket notation on the issue of presentment of a motion for
new trial).
30
Compare T EX. P ENAL C ODE § 15.02 (“Criminal Conspiracy”) with T EX. P ENAL
C ODE § 7.02 (“Criminal Responsibility for Conduct of Another”). Accord Dowdle v.
State, 11 S.W.3d 233, 238 n.4 (Tex. Crim. App. 2000) (noting that a deadly-weapon
finding would be authorized for a defendant when a co-conspirator used a deadly weapon
GUTHRIE-NAIL DISSENT—10
accepting Guthrie-Nail’s guilty plea and judicial confession, the judge necessarily made an
affirmative finding that Guthrie-Nail was sufficiently connected to the homicide and knew
that a deadly weapon would be used.31 As a result, the judge properly corrected a clerical
error in the original judgment by entering the judgment nunc pro tunc.
III.
It is unclear what the Court hopes to gain by remanding. Despite what is traditionally
characterized as a question of law,32 the Court treats the issue of this judgment’s propriety
as one that must be resolved by specific factual findings on remand. By remanding, the
Court necessarily assumes the judge did not enter the judgment nunc pro tunc for a proper
purpose or understand the law. Although it is content to suggest that placing a defendant on
probation when a deadly-weapon finding would have precluded this punishment is some
indication of the judge’s intent to not make a deadly-weapon finding,33 the Court does not
find the entry of a deadly-weapon finding in the judgment nunc pro tunc equally informative.
I suppose if the judge confesses that what purportedly was an attempt to fix a clerical error
during immediate flight and the defendant knew about it).
31
See Ex parte Huskins, 176 S.W.3d at 820 (finding that by accepting Huskins’s
guilty plea to the indictment, the judge necessarily determined that he used a deadly
weapon in the commission of the offense).
32
Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1980);
Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 405 (Tex. 1971); Smith v. State, 15
S.W.3d 294, 299 (Tex. App.—Dallas 2000, no pet.).
33
Ante, at 8 n.26.
GUTHRIE-NAIL DISSENT—11
was, in truth, a surreptitious change in his judicial reasoning, the judgment nunc pro tunc
would stand in a very different light. In spite of this possibility’s long odds, the Court
converts what was designed to be an efficient method to fix a clerical error into needless
post-conviction litigation and expenditure of judicial resources.
FILED: September 16, 2015
PUBLISH