ACCEPTED
03-14-00547-CR
4853443
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/10/2015 8:14:38 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00547-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE AUSTIN, TEXAS
THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
4/10/2015 8:14:38 PM
AT AUSTIN JEFFREY D. KYLE
Clerk
__________________________________________________________________
NO. CR-12-0005
IN THE 428TH DISTRICT COURT
OF HAYS COUNTY, TEXAS
__________________________________________________________________
STATE OF TEXAS,
APPELLANT
V.
BRYAN ROLAND CHANDLER,
APPELLEE
__________________________________________________________________
APPELLEE’S BRIEF
__________________________________________________________________
ORAL ARGUMENT REQUESTED
LINDA ICENHAUER-RAMIREZ
ATTORNEY AT LAW
1103 NUECES
AUSTIN, TEXAS 78701
TELEPHONE: 512-477-7991
FACSIMILE 512-477-3580
EMAIL: LJIR@AOL.COM
SBN: 10382944
ATTORNEY FOR APPELLEE
TABLE OF CONTENTS
PAGE
Parties to Trial Court’s Final Judgment...................................................... 3
Index of Authorities .................................................................................... 4
Statement of the Nature of the Case ........................................................... 6
Appellee’s Response to Point of Error Number One.................................. 8
The Trial Court’s Action in Granting the Motion for a Judg-
ment Nunc Pro Tunc Did Not Modify, Change or Alter the
Effect of the Original Judgment and Thus Was Not Prohibited
By the Expiration of the Court’s Plenary Power.
Appellee’s Response to Point of Error Number Four................................. 9
The Trial Court’s Action in Granting the Motion for a Judg-
ment Nunc Pro Tunc Was Proper in that the Action Was Made
to Correct a Clerical Error and Did Not Involve Any Additional
Judicial Reasoning
Appellee’s Response Point of Error Number Two ..................................... 15
The Law is Clear That When a Defendant Enters a Plea to
an Offense Involving a Deadly Weapon That the Trial Court’s
Acceptance of That Guilty Plea is Not an Affirmative Finding
of a Deadly Weapon as a Matter of Law or a De Facto Affirm-
ative Finding of a Deadly Weapon
Appellee’s Response to Point of Error Number Three............................... 15
Once a Trial Judge Accepts a Defendant’s Plea of Guilty to
an Offense Involving a Deadly Weapon, the Trial Judge Still
Retains Discretion on the Issue of Whether He Will Enter an
Affirmative Finding of a Deadly Weapon
Prayer for Relief ......................................................................................... 19
Certificate of Compliance........................................................................... 20
Certificate of Service .................................................................................. 20
2
PARTIES TO TRIAL COURT’S FINAL JUDGMENT
In accordance with Tex.R.App.Proc. 38.1(a), Appellee certifies that
the following is a complete list of the parties and their counsel:
(a) the State of Texas represented by:
Mr. Brian Clarke Erskine, Asst. Dist. Att. – appellate attorney
Hays County Criminal District Attorney's Office
Hays County Government Center
712 South Stagecoach Trail, Suite 2057
San Marcos, TX 78666
Ms. Amy Lockhart , Asst. Dist. Att. – trial attorney
Hays County Criminal District Attorney's Office
Hays County Government Center
712 South Stagecoach Trail, Suite 2057
San Marcos, TX 78666
(b) Mr. Bryan Roland Chandler, represented by:
Mr. Joseph A. Turner – trial attorney
Attorney at Law
1504 West Avenue
Austin, Texas 78701
Ms. S. Lynn Peach – attorney for judgment nunc pro tunc
Attorney at Law
P.O. Box 512
San Marcos, Texas 78667
Ms. Linda Icenhauer-Ramirez - appellate attorney
Attorney at Law
1103 Nueces
Austin, Texas 78701
3
INDEX OF AUTHORITIES
CASES PAGE
Alvarez v. State, 605 S.W.2d 615, 617 (Tex.Cr.App. 1980) ...................... 13
Banks v. State, 29 S.W.3d 642, 646 (Tex.App.-Houston [14th]
2000, pet. ref.)................................................................................... 17
Barstow v. State, 2011 Tex.App.LEXIS 3236 (Tex.App.-Austin
2011, no pet.) .................................................................................... 9
Chaney v. State, 494 S.W.2d 813, 814 n. 1 (Tex.Cr.App. 1973) ............... 13
Ex parte Dopps, 723 S.W.2d 669, 671 (Tex.Cr.App. 1986)....................... 13
Ex parte McDonald, 2015 Tex. Crim. App. Unpub.
LEXIS 210 (Tex.Cr.App. 2015, No. WR-82,533-01,
delivered March 25, 2015)................................................................ 15
Ex parte Poe, 751 S.W.2d 873, 876 (Tex.Cr.App. 1988) ........................... 13
Hatley v. State, 206 S.W.3d 710, 718 (Tex.App.-Texarkana 2006,
no pet.) .............................................................................................. 18
Hoang v. State, 2004 Tex.App.LEXIS 5890 (Tex.App.-Dallas 2004,
no pet.) .............................................................................................. 17
Hooks v. State 860 S.W.2d 110, 113-114 (Tex.Cr.App. 1993).................. 17
Jones v. State, 795 S.W.2d 199 (Tex.Cr.App. 1990).................................. 8
Perkins v Court of Appeals for the Third Supreme Judicial District
of Texas, 738 S.W.2d 276, 285 (Tex.Cr.App. 1987)........................ 18
State v. Aguilera, 165 S.W.3d 695 (Tex.Cr.App. 2005)............................. 8
State v. Bates, 889 S.W.2d 306, 309 (Tex.Cr.App. 1994).......................... 8
Wilson v. State, 677 S.W.2d 518, 521 (Tex.Cr.App. 1984) ................ 13
4
Villarreal v. State, 590 S.W.2d 938, 939 (Tex.Cr.App. 1979) ................... 13
STATUTES
Art. 42.014, V.A.C.C.P............................................................................... 9
Art. 42.12, Sec 3g, V.A.C.C.P.................................................................... 16
COURT RULES
Tex.R.App.Proc. 23.1 .................................................................................8
Tex.R.App.Proc. 34.6 .................................................................................10
Tex.R.App.Proc. 38.1(a).............................................................................3
5
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW Bryan Roland Chandler, appellee in this cause, by and
through his attorney and files this his brief on original appeal.
STATEMENT OF THE NATURE OF THE CASE
Appellee was charged by indictment in this cause on January 18,
2012. The indictment alleged that appellant committed the offense of
aggravated assault with a deadly weapon (family violence). (C.R. 5)
On February 23, 2012, appellant entered a plea of guilty to the offense of
aggravated assault, a second degree felony. (C.R. 7-13) On February 23,
2012, pursuant to the plea bargain agreement, the court assessed appellant’s
punishment at ten (10) years imprisonment. (C.R. 14-15) The trial
court’s certification of defendant’s right to appeal was filed on February 23,
2012. (C.R. 16-17) On March 23, 2014, the trial court signed a nunc
pro tunc judgment of conviction correcting appellee’s backtime credit.
(C.R. 18-19) On April 17, 2014, appellee filed a motion for judgment nunc
pro tunc asking that the affirmative finding of a deadly weapon be deleted in
accordance with the plea proceedings. (C.R. 20-35) A hearing was held
on the motion on August 7, 2014 with the judge granting the motion for
judgment nunc pro tunc. (R.R. I, pp. 4-9) On August 7, 2014, the
6
assistant district attorney filed a notice of appeal. (C.R. 36-37, 38-39)
The Nunc Pro Tunc Judgment of Conviction by Court – Waiver of Jury Trial
which deleted the affirmative finding of a deadly was signed by the trial
court on October 2, 2014. (C.R. 49-50)
7
APPELLEE’S REPLY TO POINT OF ERROR NUMBER ONE
THE TRIAL COURT’S ACTION IN GRANTING THE MOTION
FOR A JUDGMENT NUNC PRO TUNC DID NOT MODIFY,
CHANGE OR ALTER THE EFFECT OF THE ORIGINAL
JUDGMENT AND THUS WAS NOT PROHIBITED BY THE
EXPIRATION OF THE COURT’S PLENARY POWER.
APPELLEE’S REPLY TO POINT OF ERROR NUMBER FOUR
THE TRIAL COURT’S ACTION IN GRANTING THE MOTION
FOR A JUDGMENT NUNC PRO TUNC WAS PROPER IN THAT
THE ACTION WAS MADE TO CORRECT A CLERICAL ERROR
AND DID NOT INVOLVE ANY ADDITIONAL JUDICIAL
REASONING.
Absent a motion for new trial, a trial court’s plenary jurisdiction
expires thirty days from the date on which the defendant was sentenced in
open court. State v. Aguilera, 165 S.W.3d 695, 697 n. 4 (Tex.Cr.App.
2005). However, a trial court retains authority after the expiration of the
court’s plenary power to enter a judgment nunc pro tunc to correct clerical
errors in the judgment. State v. Bates, 889 S.W.2d 306, 309 (Tex.Cr.App.
1994); Tex.R.App.Proc. 23.1. The purpose of a judgment nunc pro tunc is
to correctly reflect from the records of the court the judgment actually
“rendered,” but which for some reason was not “entered” at the proper time.
Jones v. State, 795 S.W.2d 199 (Tex.Cr.App. 1990). Before a judgment
nunc pro tunc may be entered, there must be proof that the proposed
judgment was actually rendered at an earlier time. State v. Bates, supra.
A review of the record in this case shows that the judgment nunc pro
8
tunc ordered by the trial court on August 7, 2014 did correct a clerical error
in the cause. During the hearing on August 7th, the trial court took judicial
notice of the plea forms entered into by appellee and the State. (R.R. I, p.
4) A review of those plea forms shows that appellee agreed to enter a plea
of guilty to the offense of aggravated assault with a deadly weapon (family
violence). On the first page of the plea agreement form there is a set of
boxes to be checked when the parties agree that affirmative findings are to
be made by the trial court: one for an affirmative finding of a deadly
weapon, one for an affirmative finding of family violence and one for an
affirmative finding of a hate crime under Art. 42.014, V.A.C.C.P. None
of these boxes were checked. This form was signed by appellee, the
attorney for the State and the attorney for the appellee. (C.R. 6) This
form alone is evidence that the agreement of the parties was that no
affirmative finding of a deadly weapon was to be made.
In its brief on p. 4, the State cites to portions of the plea hearing (see
footnotes 23, 24, 25). But appellee would point out that the reporter’s
record from the plea hearing is not a part of the appellate record before the
Third Court of Appeals. The transcript of the plea hearing was not
admitted into evidence during the August 7th hearing and thus cannot be
considered as part of the appellate record. See Barstow v. State, 2011
9
Tex.App.LEXIS 3236 (Tex.App.-Austin 2011, no pet.). Furthermore,
when the State filed a Request For the Court Reporter’s Record on
September 5, 2014, that request only asked that the August 7, 2014 hearing
on the motion for judgment nunc pro tunc be included as part of the
appellate record. (C.R. 40-41) The Reporter’s Record from that August
7th hearing is the only part of the Reporter’s Record that has been filed in
this cause in the Third Court of Appeals. Thus the plea hearing is not part
of the appellate record and cannot be considered. Tex.R.App.Proc. 34.6.
Just looking at the record that is properly before the Court of Appeals,
namely the clerk’s record and the record from the hearing held on August 7,
2014, all of the evidence shows that it was the parties’ intent that there
would be no affirmative finding of a deadly weapon. The State has
produced no evidence showing otherwise, even though it had the opportunity
at the August 7th hearing. Clearly, the State could have called the
prosecutor who handled the guilty plea to testify as to the intent of the
parties, but for some reason chose not to call her as a witness during the
August 7th hearing. Thus the State has failed in its burden to show that
there was an agreement that the court would enter an affirmative finding of a
deadly weapon.
As noted above, appellee’s previous lawyer, S. Lynn Peach, did attach
10
a copy of the transcript from appellee’s guilty plea hearing which was held
on February 23, 2012 to her motion for judgment nunc pro tunc. (C.R.
20-35) Although this transcript was not introduced into evidence during
the August 7th hearing nor was designated as part of the appellate record by
the State and thus is not part of the appellate record before the Court and
should not be considered by the Court, appellee would assert that if the
Court of Appeals decides to consider it, it too shows that there was no
agreement of the parties that the trial court should enter an affirmative
finding of a deadly weapon.
This transcript from the guilty plea hearing shows that the prosecutor
identified State’s Exhibit 1 as the plea bargain agreement between the
parties, offered it into evidence and then rested. (Plea Transcript, p. 3)
State’s Exhibit 1 is the plea paperwork found in C.R. 6-13. Appellee then
entered a plea of guilty to the offense of aggravated assault with a deadly
weapon (family violence) and the trial court questioned him as to the typical
admonishments made during a guilty plea. After going over the
admonishments, the trial court accepted appellee’s guilty plea and found that
the evidence substantiated his guilt. (Plea Transcript, p. 4-7) The trial
court then announced the plea bargain agreement:
“THE COURT: I understand that there is a plea bargain
agreement which calls for the State to dismiss Cause No.
11
CR-12-0022 and they have agreed not to file pending
violations. But in Cause No. 12-0005 I understand that there
is a recommended resolution of 10 years in the Texas
Department of Criminal Justice Institutional Division, that the
defendant be given credit for time served as a result of this
offense.” (Plea Transcript, p. 7)
The court then asked both parties if that was their understanding of the
agreement and both the prosecutor and appellee’s trial counsel replied
affirmatively. (Plea Transcript, pp. 7-8) At no point did the prosecutor
volunteer that the parties had agreed to an affirmative finding of a deadly
weapon or object in any way to the trial court’s failure to make an
affirmative finding of a deadly weapon. The trial court then announced
that it would go along with the plea bargain agreement and sentenced
appellee to ten years in prison. (Plea Transcript, p. 8) Once again, the
State failed to object to the trial court’s failure to make an affirmative
finding of a deadly weapon.
A reading of the appellate record and also the plea transcript shows
that there was no agreement by the parties that the trial court would make an
affirmative finding of a deadly weapon at appellee’s plea hearing. Thus,
the court’s written judgment signed on February 23, 2012 did contain a
clerical error when it included an affirmative finding of a deadly weapon.
(C.R. 14-15) The record reflects that a nunc pro tunc judgment,
correcting appellee’s backtime, was signed and entered on March 23, 2012.
12
This nunc pro tunc judgment also erroneously contained an affirmative
finding of a deadly weapon. (C.R. 18-19) This too was a clerical error.
A judgment nunc pro tunc is the appropriate avenue to make a
correction when the court's records do not mirror the judgment that was
actually rendered. Alvarez v. State, 605 S.W.2d 615, 617 (Tex.Cr.App.
1980). This means that a trial court can fix clerical errors in the record by a
nunc pro tunc order. But only errors that were not the result of judicial
reasoning are considered clerical errors that can be fixed by a nunc pro tunc
order. Ex parte Poe, 751 S.W.2d 873, 876 (Tex.Cr.App. 1988). The trial
court cannot, through a judgment nunc pro tunc, change a court's records to
reflect what it believes should have been done. Ex parte Dopps, 723
S.W.2d 669, 671 (Tex.Cr.App. 1986) (citing Chaney v. State, 494 S.W.2d
813, 814 n. 1 (Tex.Cr.App. 1973); Villarreal v. State, 590 S.W.2d 938, 939
(Tex.Cr.App. 1979). "Thus, before a judgment nunc pro tunc may be
entered, there must be proof that the proposed judgment was actually
rendered or pronounced at an earlier time." Wilson v. State, 677 S.W.2d
518, 521 (Tex.Cr.App. 1984).
It is clear from the record of the trial court that the inclusion of an
affirmative finding of a deadly weapon in the original judgment and in the
first judgment nunc pro tunc was a clerical error that the August 7, 2014
13
order for a judgment nunc pro tunc was correcting.
The State is asserting that appellee was trying to modify his sentence
and thus because the trial court’s action in granting the motion for judgment
nunc pro tunc fell after the trial court’s plenary jurisdiction had expired, the
trial court’s order was wrong. This case is clearly distinguishable from
those cases cited by the State where a trial court modified a defendant’s
sentence after it had lost jurisdiction over a defendant. As shown above,
the trial court’s order of August 7, 2014, approving the entry of the judgment
nunc pro tunc was to make the judgment accurately reflect what had gone on
in the trial court during the appellee’s plea proceedings. The terms of the
plea bargain agreed upon by the parties did not contain an affirmative
finding of a deadly weapon, the trial court never made an affirmative finding
of a deadly weapon and the judgment which reflected an affirmative finding
of a deadly weapon was erroneous. Thus, the trial court acted properly in
granting the motion for the entry of the judgment nunc pro tunc. Points of
error one and four should be overruled.
14
APPELLEE’S REPLY TO POINT OF ERROR NUMBER TWO
THE LAW IS CLEAR THAT WHEN A DEFENDANT ENTERS A
PLEA TO AN OFFENSE INVOLVING A DEADLY WEAPON THAT
THE TRIAL COURT’S ACCEPTANCE OF THAT GUILTY PLEA IS
NOT AN AFFIRMATIVE FINDING OF A DEADLY WEAPON AS A
MATTER OF LAW OR A DE FACTO AFFIRMATIVE FINDING OF
A DEADLY WEAPON.
APPELLEE’S REPLY TO POINT OF ERROR NUMBER THREE
ONCE A TRIAL JUDGE ACCEPTS A DEFENDANT’S PLEA OF
GUILTY TO AN OFFENSE INVOLVING A DEADLY WEAPON,
THE TRIAL JUDGE STILL RETAINS DISCRETION ON THE
ISSUE OF WHETHER HE WILL ENTER AN AFFIRMATIVE
FINDING OF A DEADLY WEAPON.
The State asserts that because appellee entered a plea of guilty to the
offense of aggravated assault with a deadly weapon (family violence) and
the trial court then found him guilty of that offense, that the acceptance of
appellee’s guilty plea either was an affirmative finding of a deadly weapon
as a matter of law or as a de facto finding. This is not the law. Recently
Judge Bert Richardson of the Texas Court of Criminal Appeals wrote a
concurring opinion in the case of Ex parte McDonald, 2015 Tex. Crim. App.
Unpub. LEXIS 210 (Tex.Cr.App. 2015, No. WR-82,533-01, delivered
March 25, 2015) and discussed the offense of aggravated assault:
“Yet, although it is labeled an ‘aggravated’ offense,
Aggravated Assault under Section 22.02 does not fall under the
list of ‘3g’ offenses in Article 42.12 of the Texas Code of
Criminal Procedure unless there is an affirmative finding that a
deadly weapon was used or exhibited during the commission of
15
the offense.” (slip opinion, p. 2)
Clearly a finding of guilt for an offense in which a deadly weapon is used is
not the same as an affirmative finding of a deadly weapon as used in Art.
42.12, Sec 3g, V.A.C.C.P.
The State also asserts that once a defendant is found guilty of using a
deadly weapon, a trial court must make an affirmative finding of a deadly
weapon. The State asserts that a trial court never has the discretion to not
enter a deadly weapon finding in a final judgment. The State clearly does
not understand the law with respect to affirmative findings of a deadly
weapon.
The law is clear that even when a defendant pleads guilty to an
offense in which he or she used a deadly weapon the acceptance of the
defendant’s guilty plea to an offense involving a deadly weapon is not
equivalent to the court making an affirmative finding of a deadly weapon.
The defendant’s guilty plea - evidenced by his or her judicial confession -
stands alone on the issue of guilt. The affirmative judicial finding of a
deadly weapon has nothing to do with the defendant’s guilt. Rather, the
affirmative finding of a deadly weapon relates solely to the issue of
punishment. Specifically, the finding relates to the ramifications of the
available punishment alternatives: an affirmative finding of a deadly weapon
16
eliminates court-ordered probation as a possible punishment and affects
parole eligibility. See Hooks v. State 860 S.W.2d 110, 113-114
(Tex.Cr.App. 1993). The trial court, as the trier of fact on punishment,
has the authority, but not the obligation, to make an affirmative finding of
the use of a deadly weapon. Banks v. State, 29 S.W.3d 642, 646
(Tex.App.-Houston [14th] 2000, pet. ref.).
In fact, it is a common and accepted practice for a plea bargain
involving an aggravated assault where a defendant used or exhibited a
deadly weapon to limit the trial court’s authority to enter a deadly weapon
finding. The net result is that the defendant is found guilty of the
aggravated assault with a deadly weapon but the agreement is that the trial
court will not enter an affirmative finding of a deadly weapon. The lack
of an affirmative finding of a deadly weapon has no impact whatsoever on
the finding of guilt as to the offense of aggravated assault with a deadly
weapon. Rather, the affirmative finding impacts only the issue of
punishment. See Hoang v. State, 2004 Tex.App.LEXIS 5890
(Tex.App.-Dallas 2004, no pet.).
In the instant case, there is no evidence that the agreement of the
parties called for the trial court to make an affirmative finding of a deadly
weapon. Once again, the plea papers (State’s Exhibit 1) were silent as to
17
an affirmative finding of a deadly weapon. A review of the transcript
from the plea hearing shows that both the State and appellee’s attorney
agreed that the plea papers accurately reflected the terms of the plea bargain
agreement. During the plea hearing, the State never objected when the trial
court failed to make an affirmative finding of a deadly weapon.
Furthermore, the State failed to produce any evidence whatsoever at the
hearing on appellee’s motion for judgment nunc pro tunc to show that the
parties had agreed to the imposition of an affirmative finding of a deadly
weapon. The State could very easily have brought in the prosecutor who
participated in the plea hearing to testify about her understanding of the plea
bargain agreement. It chose not to do so. As a result, the record
contains no evidence supporting the State’s position.
Once a trial court has accepted the plea agreement, the court has a
"ministerial, mandatory, and non-discretionary duty to specifically enforce"
the terms of the agreement. Perkins v Court of Appeals for the Third
Supreme Judicial Dist. Of Texas, 738 S.W.2d 276, 285 (Tex.Cr.App. 1987).
In performing this duty, the trial court's "primary concern is to ascertain and
give effect to the parties' intentions as expressed in the instrument." Hatley
v. State, 206 S.W.3d 710, 718 (Tex.App.-Texarkana 2006, no pet.). Here it
is clear that appellee entered a plea of guilty to the charged offense –
18
aggravated assault with a deadly weapon (family violence) and the parties
agreed that the trial court would make no affirmative finding of a deadly
weapon. The trial court followed the plea bargain agreement and did not
make such an affirmative finding of a deadly weapon. Thus the written
judgment which erroneously reflected an affirmative finding of a deadly
weapon was properly corrected when the trial court ordered at the
conclusion of the August 7, 2014 hearing that a judgment nunc pro tunc
should be issued. Points of error two and three should be overruled.
PRAYER
Appellee respectfully requests that this Honorable Court overrule
appellant’s points of error and affirm the action of the trial court.
Respectfully submitted,
/s/ Linda Icenhauer-Ramirez
______________________________
LINDA ICENHAUER-RAMIREZ
Attorney at Law
1103 Nueces
Austin, Texas 78701
(512) 477-7991
FAX: (512) 477-3580
SBN: 10382944
Email: ljir@aol.com
ATTORNEY FOR APPELLEE
19
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief was computer generated and contains
3,782 words, as calculated by the word count function on my computer.
/s/ Linda Icenhauer-Ramirez
____________________________
LINDA ICENHAUER-RAMIREZ
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellee’s Brief on
Original Appeal was e-served to the Hays County District Attorney’s Office
on this the 10th day of April, 2015.
/s/ Linda Icenhauer-Ramirez
______________________________
LINDA ICENHAUER-RAMIREZ
20