                                                                             ACCEPTED
                                                                         03-14-00547-CR
                                                                                 5013438
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                    4/23/2015 4:38:25 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                  CAUSE NO.
                03-14-00547-CR
                                                     FILED IN
                                              3rd COURT OF APPEALS
                                                  AUSTIN, TEXAS
        IN THE COURT OF APPEALS               4/23/2015 4:38:25 PM
                                                JEFFREY D. KYLE
                   FOR THE                            Clerk


        THIRD DISTRICT OF TEXAS




         STATE OF TEXAS, Appellant

                       V.



   BRYAN ROLAND CHANDLER, Appellee




  Appeal from the 428th Judicial District Court
             Cause No. CR-12-0005
              Hays County, Texas



STATE'S REPLY TO APPELLEE'S MOTION TO
       DISMISS THE STATE'S APPEAL



                            Brian Erskine
                            Asst. Criminal District Attorney
                            Hays County Justice Center
                            712 South Stagecoach Trail, Ste. 2057
                            San Marcos, Texas, 78666
                            512-393-7600
                            Brian.erskine@co.hays.tx.us
                            State Bar No. 24074182


                            Attorney for the State of Texas
                           NAMES OF PARTIES

Appellant:                 The State of Texas


Attorneys for the State:   Wes Mau, Criminal District Attorney
                           Hays County Government Center
                           712 S. Stagecoach Trail, Suite 2057
                           San Marcos, Texas 78666
      At trial:            Amy Lockhart, ADA
      On appeal:           Brian Erskine, ADA

Appellee:                  Brian Roland Chandler


Attorney for Appellant:
      At trial:            Joseph A. Turner
                           1504 West Avenue
                           Austin, Texas 78101

      On appeal:           S. Lynn Peach
                           P.O. Box 512
                           San Marcos, Texas 78667




                                                                 11
                      TABLE OF CONTENTS


NAMES OF PARTIES                                                  ii
TABLE OF CONTENTS                                                iii
tABLE OF AUTHORITES                                              iv
STATEMENT OF THE CASE                                             2
SUMMARY OF THE ARGUMENT                                           2

ARGUMENT                                                          3

 A.   THE STATE'S APPEAL WAS AUTHORIZED BY THE ELECTED
 CRIMINAL DISTRICT ATTORNEY                                       3

 B.   THE   STATE HAS    THE   RIGHT   TO   APPEAL   THE   JUDGMENT
 MODIFICATION                                                     6

CONCLUSION                                                        9

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P., RULE 9.4         11
CERTIFICATE OF SERVICE                                           11




                                                                  111
                          TABLE OF AUTHORITES

STATE CASES

Alvarez v. State, 605 S.W.2d 615 (Tex. Crim. App. [Panel Op.] 1980)     7

Evans v. State, 843 S.W.2d 576 (Tex. Crim. App. 1992)                   7

Exparte Huskins, 176 S.W.3d 818 (Tex. Crim. App. 2005)                  6

Kinkaid v. State, 184 S.W.3d 929 (Tex. App.-Waco 2006, no pet)          6

Lopez V. State, 18 S.W.3d 637 (Tex. Crim. App. 2000)                    9

Smith V. State, 801 S.W.2d 629 (Tex. App.—Dallas 1991, no pet.)         7

State V. Evans, 843 S.W.2d 576 (Tex. Crim. App. 1992)                   6

State V. Gutierrez, 129 S.W.3d 113 (Tex. Crim. App. 2004)               6

State V. Muller, 829 S.W.2d 805 (Tex. Crim. App. 1992)                3, 4

State V. Ross, 953 S.W.2d 748, 759 (Tex. Crim. App. 1997)               6


STATE STATUTES

Tex. Code Crm. Proc. Art. 44.01(d) (Vemons 2013)                        3

Tex. Const, art. V § 26                                                 6

Tex. Gov't Code Ann. § 508.145(d)(1) (West Supp. 2013)                  6

Tex. R. App. p. 38.1                                                    2




                                                                        IV
                                  CAUSE NO.
                                03-14-00547-CR



                        IN THE COURT OF APPEALS


                                   FOR THE


                        THIRD DISTRICT OF TEXAS




                        STATE OF TEXAS, AppeUant

                                        V.



                  BRYAN ROLAND CHANDLER, Appellee



                Appeal From the 428th Judicial District Court
                             Cause No. CR-12-0005
                              Hays County, Texas



             STATE'S REPLY TO APPELLEE'S MOTION TO
                      DISMISS THE STATE'S APPEAL



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
                                                                            r




      COMES NOW the State of Texas, by and through her Assistant District

Attorney, Brian Erskine, and files this Reply in Opposition to Appellee's Motion to
Dismiss pursuant to TEX. R. APP. P. Rule 38.1 and would show the Court the

following:


                          STATEMENT OF THE CASE

      On August 7, 2014, the then elected Criminal District Attorney Sherri Tibbe

("Tibbe") authorized her assistant criminal district attorney to file a written notice

of appeal.^That same day, assistant criminal district attorney, Brian Clarke Erskine
("Erskine") filed the written notice of appeal.^ On October 2, 2014, Tibbe filed an
affidavit stating she had authorized Erskine to file the appeal in this cause.^ The
Nunc Pro Tune Judgment of Conviction by Court - Waiver of Jury Trial was

signed and filed in this case on October 2, 2014."^ The State appealed the trial
court's modification of the judgment on December 9, 2014. Chandler filed his

response brief and motion to dismiss on April 13, 2015.


                        SUMMARY OF THE ARGUMENT

       The State's Appeal was personally authorized in a timely manner by the

elected Criminal District Attorney on August 7, 2014, which vests this Court with

jurisdiction. Further, the State has the right to appeal the modification of a

judgment that affects a defendant's parole eligibility.



' CR 38-39.
^CR48.
^Id.
     49-50.
                                         ARGUMENT

   A. THE STATE'S APPEAL WAS AUTHORIZED BY THE ELECTED
         CRIMINAL DISTRICT ATTORNEY.

         On August 7, 2014, Tibbe personally, expressly and specifically instructed

and authorized the appeal in this cause.^

The State has met its burden to show that the personal authorization occurred
prior to the twenty day expiration window.

         Texas Code of Criminal Procedure Article 44.01(d) requires the prosecuting

attorney's authorization to occur prior to the twenty day window of expiration.^
Whenever a question is legitimately raised concerning the prosecuting attorney's

personal authorization of a State's appeal, the State bears the burden of proving

that the appeal in question was personally, expressly, and, specifically authorized

by the prosecuting attorney.^ Thus, the appellate record must clearly reflect the
prosecuting attorney's personal authorization of the appeal notice filed in a given

case.^




^CR48.
^Tex. CodeCrm. Proc. Art. 44.01(d) (Vemons 2013)(Art. 44.01 has expanded the time for notice
of appeal from fifteen to twenty days); See also. State v. Muller, 829 S.W.2d 805, 810 (Tex. Crim.
App. 1992).
'^Muller, 829 S.W.2d at FN 6.
^Id.
      On August 7, 2014, Tibbe authorized the appeal notice.^ She filed an
affidavit on October 2, 2014, so that the record would reflect her timely appeal

authorization.


       Chandler erroneously asserts that "the State must file something within

twenty days of the issuance of the order, showing that the elected prosecuting

attorney authorized the filing of the notice of appeal," "and evidence of that

authority must be filed within the twenty day period in order to perfect the

appeal."^^ Muller does not so require.'^
       There is no fixed timetable for when the elected prosecutor has to record her

authorization. In fact, the Muller Court recognized "the significant burden on the

prosecuting attorney" as to the "window of opportunity for making an appeal"

when the Court stated that the personal authorization must be made "—^in some

fashion."^^ It is true that this personal authorization must "occur prior to the

expiration of the fifteen day window of appeal." However, the sole criterion is

whether the prosecuting attorney personally authorized the appeal, and not when

she managed to make a physical record of her approval.



^CR48.
'°CR48.
' ^Chandler's Motion to Dismiss, pg. 5. These quotations are cited with authority from Muller, 829
S.W.2dat810.
^^Id.
   Muller, 829 S.W.2d at 810.
''Id.
           Muller's Footnote 9 provides:

           We do not hold that it would necessarily be impossible for a
           prosecuting attorney who had, in fact, personally approved a notice of
           appeal within the fifteen day filing window to supplement the record
           with evidence or an affidavit to that effect. In such a situation, the
           requirement of personal approval within the requisite time period
           would be fiilfilled and the court of appeals ,empowered with
           jurisdiction—only the proof of such approval would be lacking from
           the notice of appeal/^

It is clear that the Muller Court contemplated a prosecuting attorney's inability to

make a physical record of her personal approval of the appeal within the time

period allotted.

           This case is in accord with the Muller Court's ruling. Tibbe gave her

assistant criminal district attorney approval to file the appeal notice and

supplemented the record with an affidavit to that effect. Therefore, the personal

approval requirement within the requisite time period was fulfilled and this Court

was empowered with jurisdiction. Chandler's request for dismissal asserting the

appeal was not timely authorized is without merit.




15
     Id.
   B. THE STATE HAS THE RIGHT TO APPEAL THE JUDGMENT
      MODIFICATION.


      The State is entitled to appeal an order from a criminal case as authorized by

law.'^ Texas Code of Criminal Procedure Article 44.01(a)(2)'s plain language is

clear and unambiguous that the State may appeal any order that modifies a

judgment including the appeal ofan order that reduces a defendant's sentence.'^
   1. The trial court's nunc pro tune ehanged Chandler's parole eligibility and
      is, therefore, a modification ofthe originaljudgment.

      A sentence is the portion of the judgment setting out the terms of the

punishment.     A deadly-weapon finding determines a prisoner's parole eligibility

date/^ Specifically, when a deadly-weapon finding has been made and entered in a

judgment under Texas Code of Criminal Procedure Article 42.12 section 3g(a)(2),

the prisoner is not eligible for release on parole until the inmate's "actual calendar

time served, without consideration of good conduct time, equals one-half of the
                                                        on

sentence or 30 calendar years, whichever is less."

       Here, the trial court modified its previous order by removing the deadly-

weapon finding.^^ This modification changes Chandler's parole eligibility from


  Tex. Const, art. V § 26; State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992) (en banc).
  State V. Gutierrez, 129 S.W.Bd 113 (Tex. Crim. App. 2004).
  State V. Ross, 953 S.W.2d 748,759 (Tex. Crim. App. 1997).
  Kinkaid v. State, 184 S.W.3d 929, 930 (Tex. App. —^Waco 2006, no pet); see Exparte Huskins,
176 S.W.3d 818, 821 (Tex. Crim. App. 2005) (explainingthat although a deadly-weapon finding is
not part of a defendant's sentence, the finding affects how the sentence will be served).
  Tex. Gov't Code Ann. § 508.145(d)(1) (West Supp. 2013).
  CR49.
one-half to one-fourth of the sentence imposed.^^ Therefore, the trial court's order
that modified Chandler's parole eligibility via an improperly granted judgment

nunc pro tune is properly appealed by the State.

   2. The trial court's modification of the original judgment amounted to
      judicial reasoning thatfar exceeded merelyfixing a clerical error.

       The determination as to whether an error is clerical or judicial is a question

of law, and a trial court's clerical v. judicial finding is not binding on an appellate

court.^^ Two years after Chandler was sentenced, at the behest of Chandler, the

trial court set the matter for a hearing, and erroneously issued an order entitled

''Nunc Pro Tune" negating the original affirmative finding that a deadly weapon

was used?'^ In actuality, the order set aside the original judgment and plea

agreement and sentenced Chandler according to a new fictitious plea agreement.

       When the State asked the trial court to explain the basis of its ruling, the trial

court stated the following: "it's based on a "finding of no agreement [to an

affirmative finding of a deadly-weapon] at the time the plea bargain was made."

This explanation makes clear the trial court's nune pro tune decision was judicial

reasoning not clerical. If it were clerical, the trial court would not have to go back

to search for the parties' understanding at the time the plea bargain was entered.

  Tex. Gov't Code Ann. § 508.145 (West Supp. 2013).
  Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1980); Smith v. State, 801
S.W.2d 629, 633 (Tex. App.—Dallas 1991, no pet.).
  Evans v. State, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992) (courts must look beyond the title of
the order).
^^RR9.
                                                                                                7
Undoubtedly, the trial court attempted to ascertain whether either party

contemplated the application of the deadly weapon finding at the time of the plea

bargain was entered. After the trial court's inability to determine either party's

intent, the trial court deferred to no finding deadly weapon finding.^^ It is crystal
clear from the record that the trial court reflected, finding "no agreement" between

the parties, and deferred to a no finding deadly weapon finding.

       The original plea agreement states that Chandler "plead guilty, [and]
                                                                                oc   ___

stipulate[d] to the fact of the offense alleged in the indictment."                  Therefore, he

pled guilty as indicted that he "caused bodily injury... and during the commission
                                                                                           00

of the offense, did use or exhibit a deadly weapon, to wit: a firearm."                         This

modification amounts to judicial reasoning, not merely correcting a clerical error.

       It is true that on the plea agreement, where the State recommends an

affirmative finding of deadly weapon and family violence, the boxes are not

checked.^*^ Nonetheless, the indictment, plea, record, and judgment depict the

original judgment with a deadly-weapon finding, which the trial court had no

discretion to omit.^^ The indictment included a charge of a "deadly weapon; to wit



^®RR9.
^^RR9.
^^RR9.
^^CR5.
^°CR6.
  See State's Appeal Issue Three: Trial Court as fact-finder shall enter a deadly weapon finding
once it has been made and lacks the discretion to do otherwise.
a firearm."^^ Chandler pled guilty and stated that he understood the charge against

him, and that he was pleading guilty because he was guilty.^^ Chandler testified as
to his understanding that, under the circumstances, he pled guilty to a second-

degree felony.^"^ He also testified as to his understanding that the range of
punishment for a second-degree felony is not less than two and no more than

twenty years in the Texas Department of Criminal Justice.^^ Most notably.
Chandler stipulated to causing bodily injury and exhibiting a deadly-weapon, to

wit: a firearm during the offense.^^
       The trial court's modification of the original judgment amounted to judicial

reasoning, therefore, jurisdiction vests with the appellate court when the State has

timely filed a notice of appeal.The trial court entered its order modifying the

original judgment on August 7, 2014 and the State filed its appeal notice the same

day.^^ Thus, the State is entitled to appeal the trial court's modified order.

                                      CONCLUSION

       Tibbe gave her assistant criminal district attorney approval to file the appeal

notice on August 7, 2014, and supplemented the record with an affidavit to that



^^CR5.
"RR4.
^^RR5.
^^RR5.
^®CR11;CR34.
" Lopez V. State, 18 S.W.3d 637, 639 (Tex. Crim. App. 2000).
  CR 38.
effect. Therefore, the personal approval requirement within the requisite time

period was fulfilled and this Court obtains jurisdiction. Further, the trial court's

order modified Chandler's parole eligibility via an improperly granted judgment

nunc pro tune, therefore, this modification of the original judgment amounted to

judicial reasoning. Thus, the State has a right to appeal and Chandler's Motion to

Dismiss is without merit.



                                            Resp^tflilly submitted,



                                            Brian Erskine
                                             Asst. Criminal District Attorney
                                             Hays County Justice Center
                                             712 South Stagecoach Trail, Ste. 2057
                                             San Marcos, Texas, 78666
                                             512-393-7600
                                             brian.erskine@co.hays.tx.us
                                             State Bar No. 24074182
                                            ATTORNEY FOR THE STATE




                                                                                  10
              CERTIFICATE OF COMPLIANCE WITH TEX. R.
                                 APR P.. RULE 9.4

      I certify that this brief contains 1,556 words, exclusive of the caption,

identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix.




                            ^    Brian Erskine
                                 Hays County Asst. Grim. District Attorney



                           CERTIFICATE OF SERVICE

I certify that a true copy of the forgoing reply brief has been e-delivered to;

Linda Icenhauer-Ramirez at LJIR@AOL.COM

On this the 23"'^ day of April, 2015.




                                 Brian Erskine
                                  Hays County Asst. Crim. District Attorney




                                                                                   11
