        IN THE COURT OF CRIMINAL APPEALS
                    OF TEXAS

                                     NO. WR-83,806-01



                     EX PARTE JORGE LUIS SANCHEZ, Applicant



                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                    IN CAUSE NO. 10-07-00050-CRL-A FROM THE
                  218TH DISTRICT COURT OF LA SALLE COUNTY

       Y EARY, J., filed a concurring opinion.

                               CONCURRING OPINION

       The Court holds today that we should grant relief to Applicant on the grounds of

ineffective assistance of counsel. According to the Court, Applicant’s trial counsel gave him

erroneous advice when he told him that “the trial court had the authority to grant him

‘straight’ probation” and that “the trial court could assess probation.” While I agree that we

should grant relief, I do not agree that trial counsel’s advice was factually incorrect or

erroneous. I simply believe that trial counsel’s advice was not sufficiently detailed in light

of our recent decision in Guthrie-Nail v. State, __S.W.3d__, No. PD-0125-14, 2015 WL
                                                                             SANCHEZ — 2

5449642 at *3, del. Sept. 16, 2015. Guthrie-Nail rendered uncertain the question of the

availability of judge-imposed community supervision under Article 42.12, Section 3g(a)(2)

of the Texas Code of Criminal Procedure by holding that trial judges have unfettered

discretion to decline to make a deadly weapon finding. T EX. C ODE C RIM. P ROC. art. 42.12

§3g(a)(2). The proper resolution of this case is not as straightforward as the Court makes it

out to be and requires further explanation.

       The Aftermath of Guthrie-Nail

       Much to my consternation, Guthrie-Nail held that, even if a defendant pleads guilty

to an allegation of committing a crime with a deadly weapon, the trial judge still has

complete discretion to decline to make an affirmative finding that a deadly weapon was used.

Guthrie-Nail, 2015 WL 5449642 at *3-4; see id. at 12 (Yeary, J., dissenting). This is of no

small import in this case. Under Article 42.12 §3g(a)(2), “when it is shown that a deadly

weapon was used or exhibited” the judge may not grant community supervision. T EX. C ODE

C RIM. P ROC. art. 42.12 §3g(a)(2). The plain language of the statute seems to indicate that

community supervision is not available any time evidence of a deadly weapon is “shown.”

Yet this Court in Guthrie-Nail held otherwise: Even if the defendant pleads guilty to a deadly

weapon allegation, the trial judge can still exercise discretion to decline to make an

affirmative deadly weapon finding, and in that event the probation statute “will not operate

as a bar to probation[.]” Guthrie-Nail, 2015 WL 5449642, at *3 (quoting Hooks v. State, 860

S.W.2d 110, 114 (Tex. Crim. App. 1993)).
                                                                              SANCHEZ — 3

        Ineffective Assistance of Counsel

        Despite the majority’s opinion here that counsel “incorrectly advised Applicant,” it

is difficult in this case to say categorically that Applicant was given incorrect advice when

trial counsel told him that the trial court still had the authority to grant community

supervision. While Applicant’s community supervision eligibility turned on the entry of a

deadly weapon finding in the judgment, whether or not an entry would be made was

contingent on how the trial court would exercise its unfettered authority to decide whether

or not to make an affirmative finding of a deadly weapon. Id. (citing Hooks, 860 S.W.2d at

114).

        In granting relief today, the Court relies on trial counsel’s concession that he

“incorrectly advised Applicant that he would be eligible for community supervision,” and on

the trial court’s recommended finding that such advice was incorrect. But, in Guthrie-Nail,

the Court determined that we had already held in Hooks—“by necessary implication”—that

a trial judge could decline to make an affirmative finding of a deadly weapon even if the

defendant pled guilty to a deadly weapon allegation. Id. Indeed, according to the majority in

Guthrie-Nail, this has been the law since 1993! Contrary to what the Court says today, the

advice that trial counsel gave to Applicant was not inconsistent with precedent under Guthrie-

Nail’s interpretation of Hooks.

        The Court today also references the fact that defense counsel, the prosecution, and the

trial judge were “under the mistaken impression that Applicant was eligible for community
                                                                              SANCHEZ — 4

supervision from the trial court.” Majority Opinion at 2. But this impression was not

necessarily “mistaken.” Under the majority opinion in Guthrie-Nail, it is difficult to know

how to advise a defendant who is pleading no contest to a deadly weapon allegation with

respect to whether or not he is eligible for community supervision. Under Section 3(a) of

Article 42.12, a judge may ordinarily impose community supervision. T EX. C ODE C RIM. P ROC.

art. 42.12 §3(a). But under Section 3g(a)(2), the judge is prohibited from doing so “when it

is shown that a deadly weapon . . . was used or exhibited during the commission of a felony

offense . . . and that the defendant used or exhibited the deadly weapon[.]” T EX. C ODE C RIM.

P ROC. art. 42.12 §3g(a)(2).

       I suppose the issue then becomes, does community supervision eligibility disappear

when the defendant pleads guilty or no contest to a deadly weapon allegation? Under a plain

reading of Article 42.12 §3g(a)(2), common sense would say “yes.” But Guthrie-Nail

indicates otherwise, holding that a plea to a deadly weapon allegation does not necessarily

render a defendant ineligible for community supervision. How else could the defendant in

Hooks have pled guilty to a deadly weapon allegation and still have received community

supervision? The logical force of these holdings suggests that a defendant retains at least the

possibility of obtaining judge-imposed community supervision right up until such a time as

the trial judge exercises his discretion to make an affirmative deadly weapon finding. But

where that eligibility begins and ends is far from certain, and advising a defendant with

respect to community supervision eligibility under these circumstances is a dicey proposition.
                                                                                     SANCHEZ — 5

It should come as no surprise that giving the trial court the authority to ignore evidence when

making its findings would lead to such confusion.

       None of this is to say that counsel here was not ineffective. Nowhere in his affidavit

did trial counsel say that he fully explained to Applicant the variables involved in pleading

no contest to an indictment with a deadly weapon allegation, nor did he tell Applicant the

effect that such a plea might—or might not—have on his ability to actually obtain community

supervision. While the trial court had the authority to decline to make a deadly weapon

finding, Applicant should have been told that pleading no contest to an indictment with a

deadly weapon allegation would, at the very least, have created an additional potential

impediment to receiving community supervision, since it would give the trial court the

discretion to make an affirmative deadly weapon finding.1 That information was crucial to

making an informed decision on whether to plead guilty, and trial counsel was deficient in

failing to inform Applicant of it.

       This case demonstrates the oddity of our holding in Guthrie-Nail. A trial court is

prohibited by statute from granting community supervision if there is a deadly weapon

finding. Yet, that same trial court has absolute discretion to make, or decline to make, a

deadly weapon finding despite a plea of guilty to a deadly weapon allegation. But if the very

same trial court has the authority to decline to make the deadly weapon finding—no matter


        1
         Under Article 42.12 §3(a) of the Texas Code of Criminal Procedure, a trial court must take
into account various factors, such as “the best interest of justice, the public, and the defendant” when
determining whether to grant or deny community supervision to the defendant. TEX . CODE CRIM .
PROC. art. 42.12 §3(a).
                                                                                  SANCHEZ — 6

what the evidence shows—then, as a purely practical matter, the decision to grant community

supervision is itself wholly within the discretion of the trial court, and the statutory prohibition

against judge-imposed community supervision is rendered toothless.

       My interpretation of Article 42.12, Section 3g(a)(2)—laid out in my dissent in Guthrie-

Nail—would bring far more clarity to this issue. I believe that a judge must make an

affirmative finding of a deadly weapon whenever “the trial court is the fact-finder and the

defendant pleads guilty to an offense ‘as alleged’ in an indictment that has alleged a deadly

weapon.” Guthrie-Nail, 2015 WL 5449642, at *12 (Yeary, J., dissenting). Not only does this

better serve the legislative intent,2 but it also simplifies defense counsel’s advisory function

in the plea bargain context, at least in the face of a deadly weapon allegation. Under my

interpretation, trial counsel could simply have advised Applicant that a guilty plea to a charge

containing a deadly weapon allegation would serve to render him ineligible for straight

community supervision—period. Unfortunately, our previous decision in Guthrie-Nail has left

this area of the law far more muddled and uncertain than it should be.

       Conclusion

       While I agree with the Court that we should grant Applicant relief, we should not

declare that what trial counsel advised his client was inaccurate or incorrect. It was simply

insufficiently detailed to inform his client of a nuance we have lately (or was it in 1993?)



        2
         Guthrie-Nail, 2015 WL 5449642, at *12 (Yeary, J., dissenting) (“[O]bviously the
Legislature did not want the trial court to have any discretion to impose regular community
supervision ‘when it is shown that a deadly weapon’ was used.”).
                                                                          SANCHEZ — 7

created in the law that was critical to an informed decision how to plead, and it therefore

failed to meet the constitutional threshold of professional competence.

       With these observations, I concur.

FILED:        November 4, 2015
PUBLISH
