PD-0125-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/30/2015 4:37:14 PM
October 1, 2015
Accepted 10/1/2015 9:09:18 AM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS CLERK
OF TEXAS
VERA ELIZABETH GUTHRIE-NAIL §
APPELLANT §
§
v. § No. PD-0125-14
§
THE STATE OF TEXAS, §
APPELLEE §
STATE’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, the State of Texas, by and through Greg Willis, the Collin
County Criminal District Attorney, and the undersigned attorney, and files this
Motion for Rehearing, pursuant to Texas Rule of Appellate Procedure 79.1. In
support of its motion, the State would show the following:
SUMMARY OF ARGUMENT
I. This Court’s conclusion that the record was ambiguous regarding
whether the trial court intended to make or decline a deadly weapon
finding does not address a crucial piece of evidence—the trial court’s
docket sheet—that prior precedent holds should be considered. The
implication that the docket sheet was not considered merely because it
was a computer printout sows confusion among the lower courts and
should be clarified.
II. While a trial court may ordinarily have discretion to decline to
make a deadly weapon finding, this discretion is sharply limited in a
plea bargain. The trial court has no discretion to add or remove
conditions in a plea-bargain agreement, and accordingly it has no
discretion to decline to make a deadly weapon finding as
contemplated by the plea bargain.
1
III. This Court’s precedent holds that a trial court necessarily makes a
deadly weapon finding when it finds the defendant guilty as alleged in
the indictment if the indictment alleges a deadly weapon.
Accordingly, a trial court must expressly indicate it is using its
discretion not to make such a finding or one is made as a matter of
law.
STATEMENT OF THE CASE
The Dallas Court of Appeals affirmed the trial court’s issuance of a
judgment nunc pro tunc. Guthrie-Nail v. State (“Guthrie-Nail I”), No. 05-13-
00016-CR, 2014 WL 61037, at *1 (Tex. App.—Dallas Jan. 8, 2014) (not
designated for publication). This Court issued its opinion reversing and remanding
the instant case on September 16, 2015. Guthrie-Nail v. State (“Guthrie-Nail II”),
No. PD-0125-14, 2015 WL 5449642, at *1 (Tex. Crim. App. Sept. 16, 2015). This
motion for rehearing is timely, being filed within fifteen days of the Court’s
judgment. Tex. R. App. P. 79.1.
ARGUMENT & AUTHORITIES
This Court’s opinion focused on the question of whether a trial court has
discretion to decline to enter an affirmative finding of a deadly weapon. In
deciding the issue, however, the Court’s opinion inadvertently raised additional
issues that must be clarified to provide guidance to the lower courts. The State
requests this Court reconsider its opinion in this case.
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I. This Court failed to address the role of the docket sheet on its evaluation of
the trial court’s intent
First, this Court failed to address a crucial piece of evidence in its
evaluation, and in doing so sowed confusion among the lower courts regarding
whether and to what extent electronic docket sheets may be considered by the
appellate courts. The majority concluded that the record was ambiguous as to the
trial court’s original intention—while the finding of guilty “as set forth in the
indictment” could support the view that the trial court intended to make a deadly
weapon finding, the judgment notation of “N/A” might indicate that the trial court
did not intend to make a deadly weapon finding. Guthrie-Nail II, slip op. at 9. But
in declaring the record ambiguous, the Court omitted one other key piece of
evidence relied upon by both the State and the Dallas Court of Appeals—the trial
court’s docket entry.
The trial court’s docket sheet contains an entry on September 12, 2012, the
date of the plea, reading:
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
CR 26 (italics added). The State relied upon this docket entry in its original brief
and post-submission letter-brief, and the Dallas Court of Appeals expressly
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considered the docket entry as an indication of the trial court’s intent at the time
the plea was entered. Guthrie-Nail I, 2014 WL 61037, at *5 (finding the docket
entry “further supports the State’s contention that the trial court found that
appellant used a deadly weapon during the offense”).
Although not a substitute for a written order, a docket entry has previously
been considered by this Court as “reliable as an indicator of the trial judge’s
decisions and the business of the court.” Stokes v. State, 277 S.W.3d 20, 24-25
(Tex. Crim. App. 2009). And this Court has long held that a docket entry is a valid
means of determining whether a judgment nunc pro tunc “was the judgment
actually pronounced by the trial court when the case was tried.” Ferguson v. State,
367 S.W.2d 695, 696 (Tex. Crim. App. 1963) (op. on reh’g). Thus, the docket
sheet can and should be considered in order to resolve the ambiguity this Court
found in the record.
But this Court did not address the docket entry at all in its analysis. In the
majority opinion, the Court noted that the court of appeals partially relied on the
docket entry in reaching its conclusion. Guthrie-Nail II, slip op. at 4. Yet in
concluding the record was ambiguous, the majority only addressed the written
judgment and the trial court’s oral pronouncement. Id. at 9. It made no mention in
its analysis of the docket entry or why the entry was not sufficient to overcome the
ambiguity. However, the majority noted in its recitation of facts that the record
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“contains what appears to be a computer printout of docket sheet entries.” Id. at 3.
Additionally, the concurrence expressed doubt that the docket entry could be
considered because it was a computer printout rather than “a notation in the judge’s
handwriting.” Guthrie-Nail II, Richardson, J., concurring, slip op. at 2. This leaves
the lower courts to guess whether the docket entry was not sufficient because it
was a computer printout rather than handwritten, whether it was insufficient for
some other reason, or whether it was simply inadvertently omitted.
The simple dismissal of a docket sheet because it is a computer printout
raises troubling concerns for courts around the state, both trial and appellate. May
computer-generated docket sheets be considered at all? Must trial judges add some
additional notations, such as initials or a signature, in order for an appellate court
to consider it? With the rising prominence of paperless offices and electronic filing
now authorized in certain criminal cases, electronic docket sheets will increasingly
become the rule rather than the exception.1 The majority opinion’s failure to
address the docket sheet, combined with the concurrence’s expressed skepticism of
it as a mere computer printout, leave the courts of this state uncertain of what may
be considered or what is necessary to render electronic docket sheets legitimate in
this Court’s eyes.
1
As evidenced by the record in this case, Collin County courts switched from handwritten docket
sheets to wholly electronic ones in early 2012. Compare CR 4-5 with CR 6-19, 22-27.
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Thus, the State asks this Court to reconsider its opinion and issue a new
opinion either addressing the docket entry as an additional explanation of the trial
court’s intent or offering guidance to the lower courts regarding why the docket
entry cannot be considered.
II. This Court’s holding that a trial court may decline to enter a deadly
weapon finding does not apply to a plea bargain, which restricts a judge’s
discretion.
Second, this Court’s holding that a trial court has discretion to refuse to enter
a deadly weapon finding failed to take into account that this case involved a plea
bargain, which limits the trial court’s discretion. A trial court ordinarily has great
discretion at sentencing to issue any sentence within the statutory guidelines.
However, when a case is resolved via plea bargain, the trial court’s discretion is
sharply limited. The trial court’s only role in the plea-bargain process is advising
the defense whether it will follow or reject the bargain struck between the parties.
Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim. App. 2009); Tex. Code Crim.
Proc. art. 26.13(a)(2). Only the State may offer or withdraw a plea bargain, and
accordingly “the trial court commits error if it unilaterally adds un-negotiated
terms to a plea-bargain agreement.” Moore, 295 at 332.
The existence of a deadly weapon finding is a significant one, as it
considerably affects a defendant’s eligibility for parole. Tex. Gov’t Code
§ 508.145(d)(1); Guthrie-Nail II, slip op. at 3 (noting Appellant will not be eligible
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for parole until she has served at least twenty-five years of her sentence if there is a
deadly weapon finding). As such, it is an important issue to both parties in a plea-
bargain process. Indeed, this Court has previously approved of plea-bargain
agreements that included the trial court not entering a deadly weapon finding. See
Ex parte Minott, 972 S.W.2d 760, 761 (Tex. Crim. App. 1998); Ex parte Hairston,
766 S.W.2d 790, 791 (Tex. Crim. App. 1989); Ex parte Stephenson, 722 S.W.2d
426, 428 (Tex. Crim. App. 1987); Ex parte Hopson, 688 S.W.2d 545, 547-48 (Tex.
Crim. App. 1985); Ex parte Garcia, 682 S.W.2d 581, 582-83 (Tex. Crim. App.
1985).
A trial court’s discretion in a plea-bargain scenario is limited to accepting or
rejecting the plea bargain offered in the case. Here, Appellant entered into a plea
bargain that, while it did not expressly call for a deadly weapon finding, included
the exact language repeatedly approved of by this Court that necessarily amounts
to a deadly weapon finding—that Appellant was pleading guilty “as alleged in the
indictment” to an indictment that alleged a deadly weapon. CR 29, 30, 32; see Ex
parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). The trial court was free
to accept or reject the plea bargain. It was not, however, free to add “un-negotiated
terms” to the agreement. See Moore, 295 at 332. Thus, regardless of a trial court’s
ordinary discretion not to enter a deadly weapon finding, it did not possess that
discretion in this case because it was a plea bargain. The trial court’s nunc pro tunc
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in this case accurately reflected the terms of the bargained-for sentenced and
should be upheld.
III. This Court should not conclude the trial court declined to make an
affirmative finding of a deadly weapon absent an express statement
Finally, even if the trial court had discretion to decline to make a deadly
weapon finding, this Court should not conclude it did so absent an express
statement. To hold otherwise contradicts decades of this Court’s precedent and
unnecessarily sows confusion about past cases.
This Court has long held that a verdict in certain circumstances constitutes
an affirmative finding of a deadly weapon. In Polk v. State, this Court held that a
jury’s verdict that a defendant is guilty “as alleged in the indictment” constitutes an
affirmative finding of a deadly weapon so long as the deadly weapon was alleged
in the indictment. Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). It
reaffirmed this conclusion three years later in cases where the trial court was the
finder of fact. Ex parte Empey, 757 S.W.2d 771, 774 (Tex. Crim. App. 1988). And
this Court has also found that a deadly weapon finding need not be orally
pronounced by the trial court “if the allegation of use of a deadly weapon is clear
from the face of the indictment.” Ex parte Huskins, 176 S.W.3d 818, 821 (Tex.
Crim. App. 2005). This Court’s unwavering statement has been that an allegation
of a deadly weapon in an indictment coupled with the trial court’s verdict of guilty
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as alleged in the indictment is a deadly weapon finding, regardless of whether it
was orally pronounced.
If a trial court has discretion to decline to make a deadly weapon finding, as
this Court concluded in the instant case, then this Court should require that it do so
expressly, such as by stating when pronouncing sentence that no deadly weapon
finding would be made.2 Otherwise, this Court’s long-standing precedent would
hold that the deadly weapon finding was entered as a matter of law. To hold
otherwise would effectively overrule the clear statement in Huskins than no oral
pronouncement of a deadly weapon finding was necessary.
The majority relied on Hooks v. State, 860 S.W.2d 110 (Tex. Crim. App.
1993), to conclude that a trial court must be able to decline to make a deadly
weapon finding. Guthrie-Nail II, slip op. at 8. But in Hooks, the question was
whether a finding was entered onto the judgment. This Court made numerous
distinctions between that situation and the questions in Polk and Empey regarding
whether a finding had been made. Hooks, 860 S.W.2d at 113 (noting that
“making finding is not entering affirmative finding; the trial judge must
2
This Court makes much of the notation on the original judgment that the deadly weapon finding
was “N/A,” considering it an indication that the judge was declining to enter a finding. Guthrie-
Nail II, slip op. at 9. However, a finding of “no” or “none” would be declining to enter a finding.
“Not applicable” simply states that the deadly weapon issue was not applicable—which is not
true because a deadly weapon was alleged here, and thus a finding can be yes or no but is
certainly applicable to the case. A finding of “N/A” more likely demonstrates only that the trial
court used a template judgment applicable to all cases, including those with no deadly weapon
alleged, and did not update it to reflect either yes or no. At best, it is merely an ambiguous
indication of refusing to make a finding, as the majority held, rather than an explicit statement.
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enter separate and specific affirmative finding that deadly weapon was used or
exhibited” to bar probation).
As this Court has held in Polk, Empey, Huskins, and numerous other cases, a
deadly weapon finding is necessarily made when the indictment alleges a deadly
weapon and the trial court finds the defendant guilty as alleged in the indictment. If
the trial court intends to exercise the discretion contemplated by this Court in
Hooks and the instant case, then it must do so expressly if it intends to override the
finding that would otherwise be made as a matter of law. Because the trial court
here did not expressly exercise that discretion, it necessarily made a deadly weapon
finding, and that finding was properly added to the judgment via nunc pro tunc.
PRAYER
WHEREFORE, premises considered, the State prays that this Court will
grant its Motion for Rehearing, reconsider its opinion, and issue a new opinion
addressing the above issues.
Respectfully submitted,
GREG WILLIS
Criminal District Attorney
Collin County, Texas
JOHN R. ROLATER, JR.
Assistant Criminal District Attorney
Chief of the Appellate Division
/s/ Andrea L. Westerfeld
ANDREA L. WESTERFELD
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Assistant Criminal District Attorney
2100 Bloomdale Road, Suite 200
McKinney, Texas 75071
State Bar No. 24042143
(972) 548-4323
FAX (214) 491-4860
awesterfeld@co.collin.tx.us
CERTIFICATE OF SERVICE
A true copy of the State’s brief has been electronically served on counsel for
Appellant, John Tatum, and a courtesy copy sent to jtatumlaw@gmail.com on this,
the 30th day of September, 2015.
/s/ Andrea L. Westerfeld
Andrea L. Westerfeld
CERTIFICATE OF COMPLIANCE
This brief complies with the word limitations in Texas Rule of Appellate
Procedure 9.4(i)(2). In reliance on the word count of the computer program used to
prepare this brief, the undersigned attorney certifies that this brief contains 2,088
words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).
/s/ Andrea L. Westerfeld
Andrea L. Westerfeld
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