pd-0125-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/30/2015 12:00:00 AM
Accepted 11/30/2015 9:15:30 AM
November 30, 2015
ABEL ACOSTA
NO. PD- 0125-14 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AUSTIN, TEXAS
VERA ELIZABETH GUTHRIE-NAIL
Appellant, Petitioner
v.
THE STATE OF TEXAS,
Appellee, Respondent
Appellant’s Response to the State’s
Motion for Rehearing
On Petition for Discretionary Review From
Cause No. 05-13-00016-CR
COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS, TEXAS
On appeal from Cause Number 401-80635-2012
in the 401st Criminal District Court
of Collin County, Texas
Honorable Mark J. Rusch, Judge Presiding
JOHN TATUM
Summit Park
2150 S. Central Expressway
Suite 200
McKinney, Texas 75070
(972) 705-9200
BAR NO. 19672500
jtatumlaw@gmail.com
ATTORNEY FOR APPELLANT
IDENTITIES OF PARTIES AND COUNSEL
VERA ELIZABETH GUTHRIE-NAIL APPELLANT
HONORABLE JOHN TATUM ATTORNEY FOR APPELLANT
Summit Park (On Appeal)
2150 S. Central Expressway
Suite 200
McKinney, Texas 75070
HONORABLE RICHARD FRANKLIN ATTORNEY FOR APPELLANT
12225 GREENVILLE AVE. (TRIAL)
SUITE 252-LB 130
DALLAS, TEXAS 75243
HONORABLE GREG WILLIS CRIMINAL DISTRICT ATTORNEY
2100 Bloomdale Road, Suite 200 COLLIN COUNTY, TEXAS
McKinney, Texas 75071
HONORABLE JOHN R. ROLATER, JR. ASSISTANT CRIMINAL DISTRICT
2100 Bloomdale Road, Suite 200 ATTORNEY-CHIEF OF THE
McKinney, Texas 75071 APPELLATE DIVISION
HONORABLE ANDREA L. WESTERFELD ASSISTANT CRIMINAL
2100 Bloomdale Road, Suite 200 DISTRICT ATTORNEY
McKinney, Texas 75071
HONORABLE MARK RUSCH JUDGE PRESIDING
Collin Court of Court of Law 401ST CRIMINAL
University Drive Courts Facility DISTRICT COURT
1800 N. Graves St. OF COLLIN COUNTY, TEXAS
McKinney, Texas 75069
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TABLE OF CONTENTS
PAGE
IDENTITIES OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv
SUPPLEMENTAL PROCEDURAL HISTORY. . . . . . . . . . . . . . 1-2
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3
ISSUES ON TRIAL ON MERITS
APPELLANT/PETITIONER’S GROUND FOR REVIEW
ON PETITION FOR DISCRETIONARY REVIEW NO. 1
THE TRIAL COURT ERRED IN SIGNING A NUNC PRO TUNC ORDER
TO ADD AN AFFIRMATIVE DEADLY WEAPON FINDING TO A
JUDGEMENT ALMOST THREE MONTHS AFTER THE TRIAL COURT
SIGNED THE ORIGINAL JUDGEMENT WHICH CITED “N/A” IN THE
SPACE FOR DEADLY WEAPON FINDING
APPELLANT/PETITIONER’S GROUND FOR REVIEW
ON PETITION FOR DISCRETIONARY REVIEW NO. 2
THE TRIAL COURT ERRED BY SIGNING THE ORDER NUNC PRO
TUNC BECAUSE THE TRIAL COURT’S OMISSION OF AN
AFFIRMATIVE FINDING ON THE ORIGINAL JUDGEMENT WAS A
JUDICIAL DECISION AND NOT A CLERICAL ERROR
iii
APPELLANT/PETITIONER’S GROUND FOR REVIEW
ON PETITION FOR DISCRETIONARY REVIEW NO. 3
THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW
AND THE RIGHT TO CONFRONTATION WHEN AFTER SIGNING THE
ORIGINAL JUDGEMENT THE TRIAL COURT ALMOST THREE
MONTHS LATER ENTERED AN ERRONEOUS JUDGEMENT NUNC
PRO TUNC ADDING A DEADLY WEAPON FINDING WITHOUT
NOTICE TO APPELLANT
RESPONSE TO STATE’S ARGUMENT
ISSUE NO. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4
ISSUE NO. II .................................... 4
ISSUE NO. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5
PRAYER .................................... 6
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . 9
iv
SUPPLEMENTAL PROCEDURAL HISTORY
On the 12th day of September, 2012 before the Honorable Mark J. Rusch,
the Defendant, Vera Elizabeth Guthrie Nail, entered a plea of guilty to the charge
of conspiracy to commit capital murder contained in Count II of the indictment.
(RR: Vol. Plea and Sentencing p. 10) Several days prior to the change of plea and
enter of a guilty plea Appellant had entered a plea of not guilty to Count I of the
indictment charging her with Capital Murder and Count II of the indictment
charging her with Conspiracy to Commit Capital Murder. A jury was impaneled
and evidence was presented. The trial was stopped when the State and Defense
agreed to enter into a plea bargain agreement. The Court found the Defendant
guilty and found that her plea of guilty was made freely, voluntarily, knowingly
and competently following a plea bargain agreement. The Court sentenced the
Defendant to 50 years confinement in the Institutional Division of the Texas
Department of Criminal Justice pursuant to the plea bargain agreement. (RR: Vol.
Plea and Sentencing p.15)
The original judgment in the case entered on September 24, 2012 recited
“N/A” in the space provided for “Finding on Deadly Weapon.” The trial court
subsequently signed a judgment nunc pro tunc listing the “Findings on Deadly
Weapon” as “Yes, a Firearm” on December 4, 2012. The Court of Appeals
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affirmed the entry of the judgment nunc pro tunc conviction in an opinion
delivered on January 8, 2014. On September 16, 2015 this Court issued majority
and dissenting opinions. On September 16, 2015 the State filed a motion for
rehearing. On November 18, 2015 this Court granted the motion for rehearing and
reset this case for submission on December 2, 2015.
SUMMARY OF ARGUMENT ON STATE’S MOTION FOR REHEARING
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.
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
2
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.
RESPONSE TO STATE’S ARGUMENT
I. This Court’s majority opinion focused on more than the question of whether
a trail court has discretion to enter an affirmative finding of a deadly weapon.
Appellant/Petitioner submits that the opinion did not “inadvertently” raise
additional issues; however, this Court has decided to resubmit the case on petition
for discretionary review.
Appellant/Petitioner argues that the opinion does address the role of the
‘docket sheet’ in its opinion by labeling it as ambiguous. The State submits that
Collin County changed from handwritten docket sheets to wholly electronic ones;
however, the record on appeal is ambiguous as to this claim. It is clear that
Appellant/Petitioner was not given notice or an opportunity to be present during
the making of the ‘docket sheet’ by the Clerk to challenge any error in translation
from any alleged judge’s entry or clerk’s entry into what appeared in the clerk’s
record that would effect her parole status.
The ‘docket sheet’ as it appears in the clerk’s record looks more like the
clerk’s minutes than what was formerly and traditionally recognized as a docket
3
sheet. A traditional docket sheet would normally have entries made by the
presiding judge with the judge’s signature or initials. The current form in the
record on appeal does not contain any authentication by the presiding judge.
The State requests that the Court address in its opinion how the Court
weighs the docket sheet in cases. In the case at bar the document found in the
record appears to be a clerk’s minutes book, not a traditional judge’s docket sheet.
II. The State argues that a trial court cannot alter a plea bargain between the
State and Appellant/Petitioner in this case. Appellant/Petitioner submits that the
trial judge did not alter the terms of the plea bargain which were written and found
at Clerk’s record pp. 30-36. The plea bargain was drafted by the State’s attorney.
The plea of guilty was to the offense of conspiracy to commit Capital
Murder as charged in or as a lesser included offense of the charge in Count II of
the indictment. The written plea bargain does not state that the defendant agreed
or stipulated to a finding that a deadly weapon was to be made by the trial court.
The judgement as drafted by the State (CR pp. 37-39) has the entry N/A which is
an abbreviation for ‘not applicable’ under the heading “Findings on Deadly
Weapon.”
III. The law as stated in the majority opinion requires an ‘express
determination’ of a deadly weapon finding. The State’s argument under this
4
section would require that the law be changed to not require an ‘express
determination’ of a deadly weapon but an express statement that there would be no
deadly weapon finding.
Appellant/Petitioner argues in the alternative that the Court consider the
analysis expressed in Judge Myers’ dissenting opinion. The offense in this case is
the inchoate crime of conspiracy. There is no evidence that Appellant/Petitioner
used or exhibited a deadly weapon during the commission of the conspiracy. The
commission of a capital murder is a completely separate crime from the conspiracy
to commit capital murder. The defendant did not plead guilty to being a party.
There was no mistake to correct.
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PRAYER
For the reasons stated, it is respectfully submitted that the Court of
Appeals should review the issues of error and then sustain the issues raised, set
aside or hold void the second judgment nunc pro tunc as applied to
Appellant/Petitioner, and hold that the original judgement is the correct judgment
entered in this case, or in the alternative remand for a hearing consistent with due
process.
Respectfully submitted,
/s/ John Tatum
John Tatum
Counsel for Appellant
Summit Park
2150 S. Central Expressway
Suite 200
McKinney, Texas 75070
Phone No. (972) 705-9200
Fax No. (972) 690-9901
SBOT# 19672500
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CERTIFICATE OF SERVICE
I, JOHN TATUM, do hereby certify that a true and correct copy of the
foregoing Brief for Appellant/Petitioner was delivered to Greg Willis 2105 S.
McDonald Suite 324, McKinney, Texas 75069 and State’s Counsel in Austin,
Texas on this 29th day of November, 2015.
/s/ John Tatum
John Tatum
CERTIFICATE OF SERVICE
The undersigned attorney for Appellant/Petitioner certifies that a true and
correct copy of the foregoing brief was mailed , postage prepaid, to Vera Elizabeth
Guthrie Nail , TDCJ# 01813126 at the Crain Unit, 1401 State School Road,
Gatesville, TX 76599-2999 by U.S. Mail this the 29th day of November, 2015.
/s/ John Tatum
John Tatum
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CERTIFICATE OF COMPLIANCE OF WORD COUNT PURSUANT TO
APPELLATE RULE OF PROCEDURE 9.4
I certify that this document has 1,026 words pursuant to the definitions of
length and content in Rule 9.4. (C)(i)(2)(D)
A. Case Name: Vera Elizabeth Guthrie - Nail
B. The Court of Criminal Appeals
C. The Type of Document: Response to the State’s Motion for Rehearing
D. Party for whom the document is being submitted: Appellant/Petitioner
E. The Word Processing Software and Version Used to Prepare the Brief:
Word Perfect X7
Copies have been sent to all parties associated with this case.
/s/ John Tatum 11/ 29/2015
(Signature of filing party and date)
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CERTIFICATE OF COMPLIANCE
I certify that this submitted e-mail attachment to file Petition for
Discretionary Review complies with the following requirements of the Court:
1. The petition is submitted by e-mail attachment;
2. The e-mail attachment is labeled with the following information:
A. Case Name: Vera Elizabeth Guthrie- Nail
B. The Appellate Case Number: No. PD-0125-14
C. The Type of Document: Response to State’s Motion for Rehearing
D. Party for whom the document is being submitted: Appellant/Petitioner
E. The Word Processing Software and Version Used to Prepare the Motion :
Word Perfect X7
3. Copies have been sent to all parties associated with this case.
/s/ John Tatum 11/29/15
(Signature of filing party and date)
John Tatum
(Printed name)
John Tatum, Attorney at Law
Emailed Copy of Petition
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