IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0125-14
VERA ELIZABETH GUTHRIE-NAIL, Appellant
v.
THE STATE OF TEXAS
ON STATE’S MOTION FOR REHEARING FROM
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
COLLIN COUNTY
Y EARY, J., filed a dissenting opinion.
DISSENTING OPINION ON REHEARING
The primary bone of contention on original submission in this case was whether a trial
court has the discretion not to make a deadly weapon finding (and therefore not to enter that
deadly weapon finding into the written judgment) even though the record demonstrates that
a deadly weapon was, in fact, used. The fulcrum of the debate was the proper understanding
of this Court’s opinion in Hooks v. State, 860 S.W.3d 110 (Tex. Crim. App. 1993). Does
Guthrie-Nail — 2
Hooks support the proposition that a trial court may choose not to make a deadly weapon
finding even under circumstances in which it has been conclusively “shown” that a deadly
weapon was used?1 Although we granted the State’s motion for rehearing, today the Court
declares that decision to have been improvident. I dissent.
BACKGROUND
In two counts, Appellant was indicted for capital murder and for conspiracy to commit
capital murder. After a few days of trial testimony, Appellant and the State reached a plea
agreement. Pursuant to the agreement, the State waived the capital murder charge and
Appellant pled guilty to the conspiracy charge, as set out in the indictment, in exchange for
a 50-year prison sentence. The trial court found Appellant guilty of the offense with no oral
pronouncement of a deadly weapon finding. The plea papers make no mention of a deadly
weapon finding. The original judgment stated “N/A” in the space provided for “Finding on
Deadly Weapon.” Nevertheless, more than two months after the judgment was entered, the
trial court signed a judgment nunc pro tunc. It changed the “Findings on Deadly Weapon”
to say “Yes, a Firearm” and included a special finding that Appellant “used or exhibited a
deadly weapon or was a party to the offense and knew that a deadly weapon would be used
1
See TEX . CODE CRIM . PROC . art. 42.12 § 3g(a)(2) (“The provisions of Section 3 of this
article [authorizing judge-imposed community supervision] do not apply . . . to a defendant when
it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited
during the commission of a felony offense or during immediate flight therefrom, and that the
defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly
weapon would be used or exhibited. On an affirmative finding under this subdivision, the trial court
shall enter the finding in the judgment of the court.”)
Guthrie-Nail — 3
or exhibited.” T EX. C ODE C RIM. P ROC. art. 42.12 § 3g(a)(2).
On appeal, Appellant argued that the trial court erred in signing a nunc pro tunc order
adding an affirmative deadly weapon finding to the judgment because the trial court’s
original notation of “N/A” on the original judgment was a judicial decision and not a clerical
error. Appellant also argued that she never personally used or exhibited a deadly weapon,
so the trial court could not find that she committed the offense with a deadly weapon.
Appellant’s third argument was that the trial court did not give her notice of the judgment
nunc pro tunc, which denied her right to due process. The court of appeals affirmed the
judgment without addressing this third issue concerning notice of the nunc pro tunc.2
On original submission, this Court agreed nearly unanimously that the record of this
case would support a deadly weapon finding.3 Only one judge expressed a contrary view.4
2
Guthrie-Nail v. State, No. 05-13-00016-CR, 2014 WL 61037 (Tex. App.—Dallas Jan. 8,
2014)(not designated for publication).
3
Eight judges on original submission took the view that the record would support the making
of an affirmative deadly weapon finding in this case, the only disagreement being whether the trial
court actually made one. See Guthrie-Nail v. State, No. PD-0125-14, 2015 WL 5449642, at *1 n.3
(Tex. Crim. App. Sept. 16, 2015) (“Because the conspiracy indictment alleged the overt act of
shooting the victim ‘with a firearm causing his death’ and also alleged that the conspirators intended
to commit capital murder, the indictment would support a finding that a deadly weapon was
used—and that appellant knew that a deadly weapon would be used—in the course of the conspiracy
offense.”); id. at *9 (Keasler, J., joined by Hervey and Yeary, JJ., dissenting) (arguing that a deadly
weapon was not only supported but actually made); id. at 12 n.6 (Yeary, J. joined by Keasler and
Hervey, JJ., dissenting) (“I agree with Judge Keasler that a deadly weapon finding was in fact made
in this case.”).
4
2015 WL 5449642, at *8 (Meyers, J., dissenting) (“[A] deadly-weapon finding is not even
allowed in a conspiracy case such as this.”).
Guthrie-Nail — 4
A disagreement existed within the Court, however, concerning whether the trial court in fact
had actually made such an affirmative finding. A bare majority of the Court determined that
there was an outstanding issue of fact with respect to whether the trial court had originally
exercised (what the majority deemed to be) its discretion to decline to make a deadly weapon
finding.5 Consequently, the Court remanded the cause for a formal nunc pro tunc hearing.
In my view, the trial court made an unequivocal deadly weapon finding and, having
made it, had no discretion but to enter it into the written judgment. Having failed to do so
originally, the trial court was authorized to enter it in a judgment nunc pro tunc. I would
affirm the judgment of the court of appeals.
THE DEADLY WEAPON FINDING
The Pleading and the Proof
Appellant pled guilty to the commission of the offense of conspiracy to commit capital
murder as alleged in Count II of the indictment, and the trial court accepted that plea. Count
II of the indictment alleged that Appellant did,
with intent that capital murder, a felony, be committed, agree with Mark Lyle
Bell and Thomas Edward Grace, that they or one of them would engage in
5
Three judges disputed the existence of such a fact issue. Those judges believed that the trial
court had the discretion to decline to make a deadly weapon finding any time “it is shown” on the
record that a deadly weapon was used. Believing that the record in fact did show such a deadly
weapon finding, those judges found the issue to be a purely legal one, the answer to which was clear.
Accordingly, those three judges considered any remand to be a “useless task” in contemplation of
Blanton v. State, 369 S.W.3d 894, 900 (Tex. Crim. App. 2012). See 2015 WL 5449642, at *10
(Keasler, J., joined by Hervey and Yeary, JJ., dissenting); id. at *11 n.1 & *13 (Yeary, J., joined by
Keasler and Hervey, JJ., dissenting). That view did not carry the day.
Guthrie-Nail — 5
conduct that would constitute the offense, to wit: enter the habitation of Craig
Nail and cause the death of Craig Nail, and Mark Lyle Bell performed an overt
act in pursuance of the agreement, to wit: entered the habitation of Craig Nail
and shot Craig Nail with a firearm causing his death.
(Emphasis added.) In her written judicial confession, Appellant “admit[ted] to committing
the offense of Conspiracy to Commit Capital Murder exactly as charged . . . in Count II of
the charging instrument.” Thus, she confessed to agreeing to commit capital murder, that the
agreement embraced, as its object offense, entering the habitation of her husband and causing
his death, and that, as the overt act necessary to complete the conspiracy offense, one of the
co-conspirators actually did enter that habitation and did kill her husband, using a firearm to
do so. Thus, the object offense and the overt act were, at least as alleged in Count II of this
indictment, one and the same.
Was a Deadly Weapon Finding Made as a Matter of Law?
An affirmative deadly weapon finding is “made” when the indictment explicitly
alleges that the defendant used or exhibited a deadly weapon (including a firearm, which is
a deadly weapon per se) and the jury’s verdict specifically finds the defendant guilty as
charged in the indictment. Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985).
Similarly, we have held that, when a trial court accepts a guilty plea from a defendant who
has pled guilty to an indictment that explicitly charges the use or exhibition of a deadly
weapon (or a firearm), this constitutes a determination by the trial court that a deadly weapon
was used or exhibited. See Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005)
Guthrie-Nail — 6
(“when applicant plead guilty to deadly conduct . . . he confessed that (1) he was the same
person named in the indictment, and (2) that he committed the offense charged in the
indictment. By properly admonishing applicant and then accepting his guilty plea to the
indictment, the trial court necessarily determined that applicant used a deadly weapon in the
commission of the offense.”). Count II of the indictment in this case did explicitly allege the
use or exhibition of a firearm. It did not allege, however, that Appellant was the one who
used or exhibited it, but that one of her co-conspirators did.
Criminal conspiracy is an inchoate offense.6 A person commits the offense of criminal
conspiracy when he “agrees” with one or more other persons to commit a felony and “he or
one or more of them performs an overt act in pursuance of the agreement.” T EX. P ENAL C ODE
§ 15.02(a)(2). Thus, although conspiracy is an inchoate offense, its inchoate nature does not
mean that no conduct is required in order to commit it. If a defendant pleads guilty to an
indictment that explicitly charges that he personally used or exhibited a deadly weapon in the
course of committing the required overt act, there is no reason to exempt that defendant from
an affirmative deadly weapon finding.7 But what if, as here, the defendant pleads guilty to
6
An “inchoate offense” is “[a] step toward the commission of another crime, the step in itself
being serious enough to merit punishment.” BLACK’S LAW DICTIONARY 1250 (10th ed. 2014).
7
Cf., Whatley, 946 S.W.2d 73, 76 (Tex. Crim. App. 1997) (discussing deadly weapon
findings in the context of another inchoate offense—solicitation—and explaining: “Certainly, if a
defendant pointed a gun at another person and commanded that person to engage in conduct
constituting a capital or first degree felony, that defendant would have ‘used or exhibited’ a deadly
weapon during the offense of solicitation. * * * Hence, merely exhibiting a deadly weapon to an
accomplice during a solicitation transaction may be sufficient to support a deadly weapon
finding—especially where, as in the present case, the weapons were deadly weapons per se.”)
Guthrie-Nail — 7
an indictment that alleges it was not he who used or exhibited a deadly weapon, but one of
his co-conspirators? Can a conspirator who agrees to commit the object offense but does not
commit the overt act be held criminally responsible for a co-conspirator’s use or exhibition
of a deadly weapon? I think so—at least in some circumstances.
Parties, for example, may be found to have used or exhibited deadly weapons. Article
42.12, Section 3g(a)(2) of the Code of Criminal Procedure provides that a deadly weapon
finding should be made “when it is shown . . . that the defendant . . . was a party to the
offense and knew that a deadly weapon would be used or exhibited.” T EX. C ODE C RIM. P ROC.
art. 42.12 § 3g(a)(2).8 To justify an affirmative finding under this provision, two facts must
be “shown” on the record: 1) that Appellant was a “party to the offense,” and 2) that she
“knew that” a deadly weapon would be used. Were the allegations in Count II of the
indictment in this case of such a nature that the trial court’s acceptance of Appellant’s guilty
plea established both facts? In my view, the answer to that question is yes.
Appellant was a Party: To incur deadly weapon liability as a party under Article
42.12, Section 3g(a)(2), it must be “shown” that the defendant was a “party” to “the offense.”
(footnote omitted).
8
The statute did not originally provide for party liability for another’s use or exhibition of
a deadly weapon. Acts 1977, 65th Leg., ch. 347, § 1, p. 926, eff. Aug. 29, 1977; Travelstead v. State,
693 S.W.2d 400, 402 (Tex. Crim. App. 1985). But it was amended in 1991 to read as quoted in the
text. Acts 1991, 72nd Leg., ch. 541, p. 1876, eff. Sept. 1, 1991. As it currently reads, the provision
still does not explicitly speak to whether a conspirator may be found vicariously to have used or
exhibited a deadly weapon when his co-conspirator used or exhibited a deadly weapon in the course
of committing the offense that was the object of the conspiracy or while committing an overt act
pursuant to the conspiracy.
Guthrie-Nail — 8
To find a defendant convicted of conspiracy to be a “party” to that offense is a fairly
straightforward proposition. Section 7.01(a) of the Penal Code makes a defendant “criminally
responsible as a party to an offense” under three circumstances: either “the offense is
committed by his own conduct,” it is committed “by the conduct of another for which he is
criminally responsible,” or it is committed “by both” his own conduct and the conduct of
another for which he is criminally responsible. T EX. P ENAL C ODE § 7.01(a) (emphasis
added). A defendant who both personally agrees to commit an offense and also personally
commits the overt act necessary to complete the offense of conspiracy is then, obviously, a
“party” to that offense by virtue of his own conduct alone. But if he agrees to commit a
felony and one of his co-conspirators commits the overt act necessary to complete the
conspiracy offense, then he is a “party” to that offense as well, “both” by virtue of his own
conduct in agreeing and by virtue of the conduct of his co-conspirator in committing the
overt act. His act of agreeing, together with his co-conspirator’s act in committing the overt
act, combine to make him “criminally responsible” for the offense of criminal conspiracy
under Section 15.02(a) of the Penal Code. This is so because the conspiracy offense itself
assigns criminal responsibility for the conduct of another when it makes it an offense for one
person to agree to commit a felony while another person, a co-conspirator (“he or one or
more of them”), commits the overt act that completes the offense. T EX. P ENAL C ODE §
15.02(a)(2).9
9
Contrast the engaging in organized criminal activity statute, which requires the defendant
himself to be among those who commit the overt act necessary to “conspire to commit” an offense
Guthrie-Nail — 9
Count II of the indictment alleged: that Appellant personally agreed to commit a
felony offense; that the agreement expressly contemplated that her husband would be
murdered; and that one of her co-defendants committed the object offense as the overt act
in pursuance of that agreement. Appellant confessed to the truth of those allegations and pled
guilty to Count II, and the trial court accepted her plea. I can only conclude from this that it
has been “shown” on the record that Appellant was a “party” to the conspiracy to murder her
husband.
Appellant Knew a Deadly Weapon Would be Used: Was it likewise “shown” on
the record that Appellant necessarily “knew that” her co-conspirator would use a deadly
for purposes of that statute. See TEX . PENAL CODE § 71.01(b) (a person “conspires to commit” an
offense for purposes of Chapter 71 of the Penal Code when that person “agrees with one or more
persons” to commit an offense “and that person and one or more of them perform an overt act in
pursuance of the agreement”). See Barber v. State, 764 S.W.2d 232, 235 (Tex. Crim. App. 1988) (“A
person may be guilty of criminal conspiracy [as opposed to engaging in organized criminal activity]
by doing nothing more than agreeing to participate in the conspiracy, as long as another conspirator
commits some overt act in furtherance of the conspiracy.”).
It is true that Section 7.02(a) of the Penal Code generally defines the circumstances under
which “[a] person is criminally responsible for an offense committed by the conduct of another[.]”
TEX . PENAL CODE § 7.02(a). But nothing about the language of Section 7.02 purports to exhaust the
field of possible circumstances under which a person might be criminally responsible for the conduct
of another. Section 15.02(a)(2) of the Penal Code presents a plain and specific example of how a
person may be “criminally responsible” for the conduct of another in satisfaction of at least one
element of the offense of criminal conspiracy: He may be criminally responsible for the overt act of
one of his co-conspirators. To the extent that it may be said that Section 7.02(a) conflicts with
Section 15.02(a)(2), in that the latter would assign criminal responsibility where the former would
not, then the more specific provision must control. See Shipp v. State, 331 S.W.3d 433, 438 n.29
(Tex. Crim. App. 2011) (plurality opinion) (Section 311.026 of the Code Construction Act applies
to interpretations of the Penal Code); TEX . GOV ’T CODE § 311.026(b) (in the event of irreconcilable
conflict between general and specific statutory provisions, the latter controls).
Guthrie-Nail — 10
weapon to perpetrate the object-offense/overt-act to which she was shown to be a party? 10
I conclude that, because the object-offense/overt-act in this conspiracy case was a homicide,
Appellant must necessarily have contemplated that a deadly weapon would be used. It almost
goes without saying that Appellant knew that a deadly weapon would be used in carrying out
the murder of her husband. When, as in this case, the alleged overt act is also the agreed-
upon object offense, and that object-offense/overt-act is a homicide, then every co-
conspirator has essentially agreed, and is aware, that a deadly weapon will be used.
This conclusion follows from our holding in Crumpton v. State, 301 S.W.3d 663 (Tex.
Crim. App. 2009). There we observed:
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 used.
Id. at 665. Even more to the point, we also held that “a verdict of homicide necessarily is a
finding that a deadly weapon was used.” Id. at 664. “Having found that the defendant was
guilty of homicide,” we explained, “the jury necessarily found that the defendant used
something that in the manner of its use was capable of causing—and did cause—death.” Id.
Beginning with the premise that a jury must necessarily conclude from the fact that
a homicide has been committed that a deadly weapon was used, it stands to reason that a co-
10
It is not a defense to criminal conspiracy that “the object offense was actually committed.”
TEX . PENAL CODE § 15.02(c)(5). Thus, there is nothing to prevent the State from alleging that the
overt act was the commission of the object felony.
Guthrie-Nail — 11
conspirator to a homicide must necessarily anticipate that a deadly weapon will be used in
the commission of that homicide. This is true because a deadly weapon is “anything that in
the manner of its use or intended use is capable of causing death[,]” T EX. P ENAL C ODE §
1.07(a)(17)(B), and if causing death was the purpose of the conspiracy, then the conspirators
must have contemplated that something would be used to cause the death. This will not be
true for every overt act, of course. But when the overt act is the same as the object offense,
and when the object offense is a homicide, it necessarily follows.
For these reasons, I conclude that, by confessing to the offense as pled in the
indictment, Appellant supplied conclusive proof that she was a party to the use of a deadly
weapon, knowing that a deadly weapon would in fact be used. By accepting her guilty plea
in the wake of that confession, the trial court necessarily made a deadly weapon finding. In
short, it has conclusively been “shown” on this record that Appellant used a deadly weapon,
and the trial court had no choice but to “enter” it.11 T EX. C ODE C RIM. P ROC. art. 42.12 §
3g(a)(2). Under these circumstances, the judgment nunc pro tunc was appropriate. Ex parte
Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). The Court errs today to conclude
otherwise.
11
It might be argued that Appellant may not have pled guilty had she understood that it would
automatically result in a deadly weapon finding, with all of its attendant disadvantages. Suffice it to
say that we have no way of knowing on the present record whether Appellant understood or not, and
the voluntariness of her plea is not a question that is presently before us. In any event, with a little
bit of creative lawyering, the parties could have worked out a plea bargain that would have avoided
the deadly weapon finding. For example, Appellant could have agreed to waive indictment and plead
guilty to an information that changed the allegation of the overt act to something other than the
object offense that did not involve the use of a firearm.
Guthrie-Nail — 12
NO NEED FOR A REMAND
The trial court necessarily made a deadly weapon finding. That the trial court itself
understood that it had done so is supported by the notation of a deadly weapon finding in its
computerized docket sheet. Although the original judgment that was generated following
Appellant’s guilty plea contained the notation of “N/A” in the space provided for “Finding
on Deadly Weapon,” that notation constitutes nothing more than an erroneous
memorialization with respect to the applicability of a deadly weapon issue. The deadly
weapon issue manifestly was “applicable” in this case. The “N/A” notation certainly does not
constitute evidence that, contrary to the other indicators in the case, the trial court actually
made a determination that Appellant did not use or exhibit a deadly weapon. Moreover, there
is nothing in the record to suggest that the trial court’s order nunc pro tunc was anything
other than a proper correction of a clerical error in the original judgment—to show that the
deadly weapon issue was applicable and that such a finding had been made and was required
to be entered into the judgment.
Here, as in Poe, “[t]he trial judge did not err in correcting this error by entering a
judgment nunc pro tunc which properly reflected what the trier of fact had determined.” 751
S.W.2d at 876. Under these circumstances, there is no need to remand the cause for
whatever further clarification a formal nunc pro tunc hearing might afford. Remand for a
nunc pro tunc hearing is not necessary when it would be a useless act. Blanton v. State, 369
S.W.3d 894, 900 (Tex. Crim. App. 2012).
Guthrie-Nail — 13
CONCLUSION
The judgment of the court of appeals ought to be affirmed. I respectfully dissent to the
dismissal of State’s motion for rehearing as improvidently granted.
FILED: November 23, 2016
PUBLISH