                                                                                         PD-0879-15
                               PD-0879-15                               COURT OF CRIMINAL APPEALS
                                                                                        AUSTIN, TEXAS
                                                                      Transmitted 9/15/2015 10:30:56 AM
                                                                        Accepted 9/16/2015 12:42:43 PM
                                                                                         ABEL ACOSTA
                                 NO. 04-14-00378-CR                                              CLERK
  ______________________________________________________________________________
                                      IN THE

            IN THE COURT OF CRIMINAL APPEALS
                                  AT AUSTIN, TEXAS

                              ROBERTO GARCIA, JR.,
                                       Appellant,
                                           V.
                               THE STATE OF TEXAS,
                                       Appellee

                                 APPELLANT’S
            PETITION FOR DISCRETIONARY REVIEW

                     On Appeal from Cause Number 13-04-10924-CR
          In the District Court, 79th Judicial District of Brooks County, Texas
                           Honorable Terrell, Judge Presiding



                                    David T. Garcia
                                      721 E. King
September 16, 2015             Kingsville, Texas 78363
                                  Ph.: (361) 595-4143
                                 Fax: (361) 595-0544
                             davidtgarcia0881@gmail.com
                               Texas Bar No: 07631800

                          ATTORNEY FOR APPELLANT

            APPELLANT DOES NOT REQUEST ORAL ARGUMENT

                                       Page 1 of 10
I.    IDENTITIES OF PARTIES AND COUNSEL

Robert Garcia Jr., Appellant

David T. Garcia, Attorney for Appellant on Appeal
& at Application for Shock Probation Hearing
721 E. King Avenue
Kingsville, Texas 78363
Phone: (361) 595-4142
Fax: (361) 595-0544
Email: davidtgarcia0881@gmail.com

Carlos Omar Garcia, Brooks County District Attorney
Attorney for State of Texas
P.O. Drawer 283
Falfurrias, Texas 78355
Phone: (361) 325-5604
Fax: (361) 325-2993

Alberto Byington III, Assistant District Attorney
Brooks County, Texas
Attorney for State of Texas
P.O. Drawer 283
Falfurrias, Texas 78355
Phone: (361) 325-5604
Fax: (361) 325-2993

Honorable Richard C Terrell, Presiding Judge
79th Judicial District, Brooks County, Texas
100 E. Miller Street
Falfurrias, Texas 78355
Phone: (361) 325-5604
Fax: (361) 325-9803




                                    Page 2 of 10
II.          TABLE OF CONTENTS                           Page

      I.       Identities of Parties and Counsel         2

      II.      Table of Contents                         3

      III.     Index of Authorities                      4

      IV.      Statement of the Case and Jurisdiction    5, 6

      V.       Statement of Procedural History           6

      VI.      Statement Regarding Oral Argument         6

      VII. Argument                                      7, 8, 9

      VIII. Certificate of Compliance                    9

      IX.      Conclusion and Prayer for Relief          9, 10

      X.       Certificate of Service                    10




                                          Page 3 of 10
III.    INDEX OF AUTHORITIES

Cases

        Blanton v. State, 369 S.W.3d. 894 (Tex.Crim.App.2012)

        Johnson v. State, 233 S.W.3d. 420 (Tex.App. FT. Worth, 2007, pet.ref)

        Rivers v. State, 99 99 S.W.3d. 659 (Tex.App. were 2003 no.pet.)

        Smith v. State, 15 S.W. 3d. 294 (Tex.App.-Dallas no.pet.)

Rules

        Tex. Rules App. Proc 39.7 (2014)

        Tex. Code of Criminal Procedure 42.12(3) (2014)

        Tex. Code of Criminal Procedure 42.12(6) (2014)




                                      Page 4 of 10
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

      NOW COMES, ROBERTO GARCIA JR., Appellant in this cause, by and
through his attorney of record, DAVID T. GARCIA, and, pursuant to the provisions
of TEX.R.APP.PRO. 66, et seq., moves this court to grant discretionary review, and
in support will show as follows:


IV.   STATEMENT OF THE CASE AND JURISDICTION

      Appellant did timely perfect his appeal.
      This is an appeal of a Denial of Shock Probation and Entering of an Order
Nunc Pro Tunc more than 30 days after the entry of judgement in cause number 13-
04-10924CR District Court of Brooks County.
      On December 4, 2017, Appellant pled guilty to Court 1: Aggravated Assault
with a Deadly Weapon and Court II: Engaging in organized crime (RR 15).
      On December 4, 2013, the trial court sentenced Defendant to serve 10 years
confinement in the Texas Department of Criminal Justice – Institution Division C.
The Judgement made no affirmative finding of the use of a Deadly Weapon in the
Judgement of Conviction (RR 17).
      On February 26, 2014, Appellant filed a timely Motion of Shock Probation
(RR 21).
      On April 23, 2014, the Trial Court Denied Roberto Garcia’s Application for
Shock Probation (RR 27).
      On April 23, 2014, Appellant filed a timely motion to reconsider Application
for shock Probation and Objection to Order Nun Pro Tunc (RR 30).
      On May 5, 2014, the Trial Court denied Appellant’s Motion to Reconsider
Application for Shock Probation and Objection to Order Nun Pro Tunc (RR 31).
                                    Page 5 of 10
      On May 13, 2015, the Honorable Fourth Court of Appeals affirmed the Trial
Court’s judgement in a non-published opinion.
      On May 22, 2014, a Notice of Appeal was filed by Appellant (RR 32).
      On June 6, 2014, Trial Courts Certification of Defendant’s Rights to Appellant
was filed (RR 36).
      On June 8, 2015, the Court of Appeals affirmed appellant's conviction.
      On June 15, 2015, Appellant filed a Motion to Extend Time to File Petition
for Discretionary Review.
      On August 7, 2015, Appellant filed a Motion to Extend Time to File Petition
for Discretionary Review.


V.    STATEMENT OF PROCEDURAL HISTORY

      Appellant presented two issues in his appellate brief. The conviction was
affirmed in an opinion Garcia v. State, No. 04-1400378-CR (Tex. App.-San
Antonio, delivered May 13, 2015) (not designated for publication). Appellant filed
a Motion for Rehearing on June 5, 2015. The appellate court again affirmed the
conviction. This petition was originally due on July 9, 2015, but on Appellant’s
Motions, this Court has extended the time to September 8, 2015, and it is therefore
timely.

VI.   STATEMENT REGARDING ORAL ARGUMENT

      Appellant does not request oral argument. See Tex. Rule App. Proc. 39.7
(2014) Appellant believes that the facts and legal arguments are adequately
presented in this Brief. However, should this Court determine that its decisional
process will be significantly aided by oral argument, Appellant will be happy to
present oral argument.


                                    Page 6 of 10
GROUND FOR REVIEW: THE COURT OF APPEALS ERRED WHEN IT
HELD THAT THE PROVISIONS OF TCCP 42.12 SECTION 3GA2 ARE
MINISTIRAL IN NATURE                 AND      THAT THE JUDGEMENT                   OF
CONVICTION COULD BE CORRECTED NUN PRO TUNC AFTER THE
TRIAL COURT HAS LOST ITS PLENARY POWER TO REFLECT AN
AFFIRMATIVE FINDING ON A DEADLY WEAPON WHEN NONE WAS
RECITED AT THE TIME OF THE PLEAS.


VII. ARGUMENT
      In this case at hand, the Appellant Court had the record of the Trial Court from
the date the Plea was entered filed for review. The record is clear that an affirmative
finding that a deadly weapon was used in the commission of the crime was never
made during the plea. It was not part of the plea bargain nor was it announced or
even insinuated throughout the time that the plea was taken. (RR Volume 1 1-15) In
addition to this, the Trial Court actually signed a judgement of conviction that stated
that a deadly weapon finding was “n/a”, which means “not applicable”. To allow the
Court to enter a judgment Nunc Pro Tunc more than 100 days after the loss of
plenary power, just because a Motion for Shock Probation has been made, violates
the two step process required by Art. 42.12, as described in Johnson v. State 233
S.W.3d. 420 (Court of Appeals of Texas, Fort Worth). In the case at hand, there is
absolutely no proof that an affirmative finding that a deadly weapon was used in the
commission of the crime was explicitly made or pronounced at the time of the plea
on December 23, 2013. (RR Vol. 1 1-15)
      Appellant agrees that the purpose of a Nunc Pro Tunc judgement is to provide
a Trial Court with the means to correct the record when there is a discrepancy
between judgement as pronouncing court and the judgement reflected in the written
record. See Blanton V. Estate 69 SW 394897-98 (Tex. Crim. 8PP. 2012). For a Nunc
                                     Page 7 of 10
Pro Tunc judgement to be proper, the record must show the judgement has changed
was actually rendered at an earlier time, as this vehicle may not be used to change a
record to reflect what a Trial Court concludes should have been done.           Id 898.
Therefore, Nunc Pro Tunc judgement may not be used to correct a judicial omission
nor involve judicial reasoning; corrections made to the record by Nunc Pro Tunc
judgement are limited to clerical errors. Id. Therefore, before a judgement Nunc Pro
Tunc can be entered, there must be proof the judgement was actually rendered or
pronounced at an earlier time. Smith vs. State 15 S.W.3d 294, 298 (Tex. App. –
Dallas 2000 no pet)
      “When an affirmative finding that a deadly weapon was used in the
commission of the crime is made, it then becomes a mandatory duty of the Trial
Court to enter a separate and specific deadly weapon finding in the judgement.”
(Texas CRCCP. Art. 42.12) “It is also that ‘affirmative finding’ as used in the statute
governing parole eligibility for offenses involving the use or display of a deadly
weapon means and ‘expressed determination’ by the finding or fact that a deadly
weapon was used or exhibited in the commission of the offense or an immediate
flight therefrom.” Johnson vs. State 233 S.W.3d.420 (Court of Appeals of Texas,
Fort Worth)”. It has also been held that when the Trial Court is the finder of fact, has
discretionary whether to make an affirmative finding that a deadly weapon was used
in the commission of the crime in the first instance, for purposes of sentencing, even
when such a finding would be supported by the evidence. Id 421. Therefore, it is
clear that where the Trial Court is the trial fact and an affirmative finding that a
deadly weapon was used in the commission of the crime must be made either
expressly or as a matter of law, it nevertheless retains the discretion NOT to enter
the deadly weapon finding in the judgement. Id 421.
      In Rivers v. State 99 S.W.3d 659 (Court of Appeals of Texas, Waco, January
29, 2003), the Court held that the Trial Court “…lacked authority to enter an
                                      Page 8 of 10
affirmative deadly weapon finding in the order revoking defendant's community
supervision” on aggravated assault conviction when the initial judgment of probation
did not contain it. The same should be true in this case where the Trial Court is
attempting to use a Nunc Pro Tunc order after a Motion for Shock Probation was
filed to amend the original conviction to add that an affirmative finding that a deadly
weapon was used in the commission of the crime.


VIII. CERTIFICATE OF COMPLIANCE
       This certifies that this document complies with the type-volume limitations
because it is computer generated and does not exceed 15,000 words. Using the word-
count feature of Microsoft Word, the undersigned certifies that this document
contains 888 words in the entire document except in the following sections: caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement and jurisdiction of the case, statement of procedural
history, certificate of service and certificate of compliance. This document complies
with the typeface requirements because it has been prepared in a proportionally-
spaced typeface using Microsoft in 14-font. See Tex. Rule App. Proc. 9.4 (2014).


IX.   CONCLUSION AND PRAYER FOR RELIEF
      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
that this Court grant discretionary review and, after full briefing on the merits, issue
an opinion clarifying that a Nunc Pro Tunc order cannot be used to add an affirmative
finding to a conviction entered more than 100 days after the plenary power of the
Court has rendered it’s judgement. We further request that this matter be reversed
and remanded to the trial court for consideration of the application of the Motion for
Shock Probation timely made.


                                      Page 9 of 10
                                     Respectfully submitted,
                                     DAVID T. GARCIA
                                     721 E. King
                                     KINGSVILLE, TX 78363
                                     Tel: (361) 595-4143
                                     Fax: (361) 595-0544

                                           /s/David T. Garcia
                                     By:
                                       DAVID T. GARCIA
                                       State Bar No. 07631800
                                       davidtgarcia0881@gmail.com
                                       ATTORNEY FOR APPELLANT

X.    CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above and foregoing
document was served upon the following parties by the following method of service:
Via Facsimile: (361) 325-2993
Carlos Omar Garcia, Brooks County District Attorney
Attorney for State of Texas
P.O. Drawer 283
Falfurrias, Texas 78355
Phone: (361) 325-5604

Via Facsimile: (361) 325-2993
Alberto Byington III, Assistant District Attorney
Brooks County, Texas
Attorney for State of Texas
P.O. Drawer 283
Falfurrias, Texas 78355
Phone: (361) 325-5604                     /s/David T. Garcia
                                By: _________________________________
                                     David T. Garcia, Attorney for ROBERT
                                     GARCIA



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