           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0125-14



                  VERA ELIZABETH GUTHRIE-NAIL, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FIFTH COURT OF APPEALS
                         COLLIN COUNTY

       K EASLER, J., filed a dissenting opinion in which H ERVEY and Y EARY, JJ.,
joined.

                                DISSENTING OPINION

       The central issue in this case is whether the judge, in accepting Vera Guthrie-Nail’s

guilty plea and finding her guilty of conspiracy to commit capital murder as alleged in the

indictment expressly alleging the use of a deadly weapon, has the discretion to nonetheless

withhold a deadly-weapon finding. Looking solely to a distinguishable case and using a

series of inferential leaps, the Court is satisfied that he does. The Court then incorrectly

approaches the nunc pro tunc judgment’s propriety as if it were an issue of fact requiring a
                                                               GUTHRIE-NAIL DISSENT—2

remand to develop a factual record surrounding the new judgment’s entry. Because I believe

the Court errs in both respects, I dissent.

                                              I.

       The Court relies exclusively on Hooks v. State1 to support its conclusion that judges

may, at will, withhold deadly-weapon findings. But it is not particularly convincing on the

issue that the Court uses it for. Hooks presented the Court with a case that required it to

address the repercussions of the lack of entering a deadly-weapon finding. Hooks challenged

the imposition of probation for the offense of aggravated assault by threat with a firearm, a

deadly weapon per se.2 We held that even if the judge “made” a deadly-weapon finding, the

judge’s failure to “enter” the judgment did not render Hook’s probation void.3 Hooks cannot

support the weight the Court places on it. The opinion did not address whether the absence

of a deadly-weapon finding in a judgment was proper nor did it involve a judgment nunc pro

tunc. Instead, Hooks only addressed the consequences of judgments lacking a memorialized

deadly-weapon finding. The Court withheld judgment on whether “the trial judge “simply

declined to enter the additional affirmative finding in the judgment” and did not expand the

grant of review to consider that separate question,4 the exact proposition for which the Court



       1
           Hooks v. State, 860 S.W.2d 110, 111 (Tex. Crim. App. 1993).
       2
           Id. at 111.
       3
           Id. at 113–14.
       4
           Id. at 114, n.7.
                                                                 GUTHRIE-NAIL DISSENT—3

cites this case. The Court’s reading of Hooks, and the necessarily implication it finds within

its logic, does not ring true, especially when the implication is something we expressly

rejected addressing.

       Moreover, before deciding Hooks, this Court decided Ex parte Poe.5 There, we noted

that Texas Code of Criminal Procedure article 42.12, § 3g(a)(2) requires a two-step process

regarding deadly-weapon findings: (1) the trier of fact must make an affirmative deadly-

weapon finding, and (2) the finding shall be entered into the court’s judgment.6 Once a

deadly-weapon finding is made, the judge is statutorily obligated to enter the deadly-weapon

finding in the judgment.7 “The trial judge has no discretion to do otherwise. Consequently,

the failure of the trial judge to do so was not an error of judicial reasoning but rather an error

of a clerical nature.”8 Therefore, we held that entering a judgment nunc pro tunc to reflect

what the factfinder—not necessarily limited to a jury—determined was proper.9

       Furthermore, Hooks’s significance wanes in light of our more recent precedents. In

Ex parte Huskins, the indictment alleged that Huskins “did then and there knowingly

discharge a firearm at and in the direction of a vehicle, and [he] was then and there reckless




       5
           751 S.W.2d 873 (Tex. Crim. App. 1988).
       6
           Id. at 875.
       7
           Id. at 876.
       8
           Id.
       9
           See id.
                                                               GUTHRIE-NAIL DISSENT—4

as to whether the vehicle was occupied.”10 After the judge adjudicated Huskins’s deferred

adjudication, the court’s judgment reflected a deadly-weapon finding. Huskins complained

that the deadly-weapon entry was improper. When Huskins pleaded guilty to the deadly-

conduct allegation, he confessed that he was the same person named in the indictment and

that he committed the offense changed in the indictment.11 Although the case did not involve

a judgment nunc pro tunc, we held that “[b]y properly admonishing [Huskins] and then

accepting his guilty plea to the indictment, the trial court necessarily determined that

[Huskins] used a deadly weapon in the commission of the offense,” and the entry of the

finding was proper.12

       Crumpton v. State,13 an authority noticeably absent from the Court’s opinion, also

limits the extent the Court wishes to stretch Hooks.14 Crumpton added to the “making” side

of deadly-weapon findings. It held that,

       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




      10
            Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).
       11
            Id.
       12
            Id. at 819–20.
       13
            301 S.W.3d 663 (Tex. Crim. App. 2009).
      14
          See id. at 668–69 (Keller, P.J., dissenting) (finding Crumpton “inconsistent with
the reasoning in Hooks v. State.”).
                                                                GUTHRIE-NAIL DISSENT—5

       used.15

It follows that, after a finding of guilt for an offense defined by an indictment alleging the

use of a deadly weapon, a deadly-weapon finding is necessarily made. Article 42.12, §

3g(a)(2) and Poe then require the deadly-weapon finding to be entered. The entry of a

deadly-weapon finding is not a discretionary act; it must follow the making of a deadly-

weapon finding.

       The Crumpton logic follows that found in Polk v. State, noting that in some instances

an affirmative finding will arise as a matter of law.16 The Polk Court held that a trier of fact

may make a deadly-weapon finding by virtue of simply convicting a defendant based upon

an indictment that expressly contained and required a deadly-weapon finding.17 “If the

indictment by allegation specifically places the issue before the trier of fact . . . , then an

affirmative finding is de facto made when the defendant is found guilty ‘as charged in the

indictment.’”18 “If the trier of fact finds that a pistol has been used in the commission of the

offense . . . , then it has found that a deadly weapon has been used since a pistol is a deadly

weapon per se.”19 In this case, the trier of fact made a deadly-weapon finding as a matter of




       15
            Crumpton, 301 S.W.3d at 665.
       16
            Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985).
       17
            Id.
       18
            Id.
       19
            Id.
                                                               GUTHRIE-NAIL DISSENT—6

law in adjudicating Guthrie-Nail guilty as charged in the indictment that specifically included

the term “firearm”—a deadly weapon per se.20

       To argue that the cases are reconcilable based on the trier of fact—judge versus jury—

advances an artificial distinction between the two. In the present context, both are charged

with deliberating on the evidence in determining guilt or innocence within the confines of

the charging instrument containing the offense’s statutory elements of the offense and

descriptive averments. Furthermore, Article 42.12, § 3g(a)(2) itself does not differentiate

between finders of fact. There is no manifest legislative intent from the statute’s plain

language that deadly-weapon findings and their entry operate differently depending on the

trier of fact. The statute makes no mention of any discretionary role served by the presiding

judge. It simply provides that once a deadly-weapon finding is made, it shall be entered in

the judgment. And in the event that the deadly weapon was a firearm, that must also be

entered.

                                                II.

       Even assuming that Hooks permits judges to discretionarily withhold a deadly-weapon

finding, the record does not suggest that is what happened here. The record as a whole

establishes that the error corrected by the nunc pro tunc was clerical, not an impermissible

judicial error.21 The contested judgment’s validity turns on whether the judge necessarily



       20
            T EX. P ENAL C ODE § 1.07(a)(17).
       21
            See Ex parte Poe, 751 S.W.2d at 876.
                                                               GUTHRIE-NAIL DISSENT—7

made an affirmative deadly-weapon finding contemplated by Article 42.12, § 3g(a)(2) when

he accepted Guthrie-Nail’s guilty plea and judicial confession to Count II and found her

guilty of Count II as alleged in the indictment. The “N/A” that appeared in the original

judgment’s place designated for a deadly-weapon finding has an unexplained hold on the

Court. The Court finds the “N/A” “seems to be an express determination that a deadly[-

]weapon finding was not made.”22 However, this view falsely presumes that the “N/A” is not

the clerical error the judge sought to correct in the first place by entering the judgment nunc

pro tunc. The Court seemingly would affirm the judgment nunc pro tunc if the deadly-

weapon finding was orally pronounced at Guthrie-Nail’s sentencing.23 Although a judge

may, he does not need to orally pronounce a deadly-weapon finding in pronouncing sentence

when the use of a deadly weapon is clear from the face of the indictment.24 Why must an

optional pronouncement be required to overcome the Court’s exalted “N/A”?

       I would find the judgment nunc pro tunc properly entered because the judge

necessarily made a deadly-weapon finding, and therefore its entry was statutorily required.

In the plea hearing, Guthrie-Nail responded affirmatively when the judge asked her, “Did you

commit this crime just as it’s set forth in Count II of this indictment?” The State offered

Guthrie-Nail’s judicial confession in which she confessed “to committing the offense of



       22
            Ante, at 6 (emphasis in original).
       23
            Id.
       24
            Ex parte Huskins, 176 S.W.3d at 821.
                                                               GUTHRIE-NAIL DISSENT—8

conspiracy to commit capital murder exactly as charged in the charging instrument or as a

lesser offense charged in the (Count II of the indictment).” 25 After admitting the State’s

evidence in support of the plea, the judge found “beyond a reasonable doubt that you

[Guthrie-Nail] are guilty of the first[-]degree felony offense of conspiracy.”

       The repeated references to the indictment’s Count II are telling in two ways. Count

II specifically alleged capital murder as the object of the conspiracy, which by its definition

requires the use of a deadly weapon.26 Additionally, the indictment alleged that Guthrie-Nail

agreed with her co-conspirators that one of their number would cause the death of Craig Nail

and that the overt act performed involved Nail’s death with a firearm, a deadly weapon per

se.27 The indictment’s language and the present facts surrounding Guthrie-Nail’s plea are

distinguishable from those we have found insufficient to warrant a deadly-weapon finding.28

Here, the indictment specifically alleged a deadly weapon per se, and the plea hearing

contained a judicial finding that Guthrie-Nail was guilty beyond a reasonable doubt “as set

forth in the indictment.” Further, on the date of the plea, the trial docket sheet bears a

notation germane to this case’s question. In its original typeface and formatting, it contains


       25
            Parentheses in original.
       26
            See Crumpton, 301 S.W.3d at 664.
       27
            T EX. P ENAL C ODE § 1.07(a)(17).
       28
          See, e.g., Ex parte Dopps, 723 S.W.2d 669 (Tex. Crim. App. 1986) (vacating
the judgment nunc pro tunc adding a deadly-weapon finding because the manslaughter
did not allege a deadly weapon per se nor particularly alleged the weapon was a deadly
weapon by the manner of its use).
                                                               GUTHRIE-NAIL DISSENT—9

the following:

       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

       It is not dispositive of the issue, but including “Deadly Weapon Finding 42.12” on the

docket sheet is additional evidence that, when viewed in the totality of the sentencing,

strongly supports the conclusion that the judge made an affirmative deadly-weapon finding.29

Although the indictment and judicial confession may not support a deadly-weapon finding

on the direct liability theory under Article 42.12, § 3g(a)(2)—a finding that she personally

used or exhibited a deadly weapon—it was sufficient under a vicarious liability theory.

Section 3g(a)(2) also commands the deadly-weapon finding’s entry if there is an affirmative

finding that the defendant “was a party to the offense and knew that a deadly weapon would

be used or exhibited.” I find no impediment in imposing a deadly-weapon finding for the

conspiracy offense as alleged in this indictment, an offense that imposes criminal culpability

in a manner legally akin to vicarious or party liability.30 I therefore would conclude that, by


       29
          See generally Stokes v. State, 277 S.W.3d 20, 24–25 (Tex. Crim. App. 2009)
(considering the trial judge’s docket notation on the issue of presentment of a motion for
new trial).
       30
          Compare T EX. P ENAL C ODE § 15.02 (“Criminal Conspiracy”) with T EX. P ENAL
C ODE § 7.02 (“Criminal Responsibility for Conduct of Another”). Accord Dowdle v.
State, 11 S.W.3d 233, 238 n.4 (Tex. Crim. App. 2000) (noting that a deadly-weapon
finding would be authorized for a defendant when a co-conspirator used a deadly weapon
                                                             GUTHRIE-NAIL DISSENT—10

accepting Guthrie-Nail’s guilty plea and judicial confession, the judge necessarily made an

affirmative finding that Guthrie-Nail was sufficiently connected to the homicide and knew

that a deadly weapon would be used.31 As a result, the judge properly corrected a clerical

error in the original judgment by entering the judgment nunc pro tunc.

                                            III.

       It is unclear what the Court hopes to gain by remanding. Despite what is traditionally

characterized as a question of law,32 the Court treats the issue of this judgment’s propriety

as one that must be resolved by specific factual findings on remand. By remanding, the

Court necessarily assumes the judge did not enter the judgment nunc pro tunc for a proper

purpose or understand the law. Although it is content to suggest that placing a defendant on

probation when a deadly-weapon finding would have precluded this punishment is some

indication of the judge’s intent to not make a deadly-weapon finding,33 the Court does not

find the entry of a deadly-weapon finding in the judgment nunc pro tunc equally informative.

I suppose if the judge confesses that what purportedly was an attempt to fix a clerical error




during immediate flight and the defendant knew about it).
       31
          See Ex parte Huskins, 176 S.W.3d at 820 (finding that by accepting Huskins’s
guilty plea to the indictment, the judge necessarily determined that he used a deadly
weapon in the commission of the offense).
       32
         Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1980);
Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 405 (Tex. 1971); Smith v. State, 15
S.W.3d 294, 299 (Tex. App.—Dallas 2000, no pet.).
       33
            Ante, at 8 n.26.
                                                            GUTHRIE-NAIL DISSENT—11

was, in truth, a surreptitious change in his judicial reasoning, the judgment nunc pro tunc

would stand in a very different light. In spite of this possibility’s long odds, the Court

converts what was designed to be an efficient method to fix a clerical error into needless

post-conviction litigation and expenditure of judicial resources.




FILED: September 16, 2015

PUBLISH
