                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00439-CR
                            NO. 02-12-00440-CR


DEREK MAURICE ROOTS                                            APPELLANT

                                      V.

THE STATE OF TEXAS                                                   STATE


                                   ----------

        FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

                                   ----------

                                 OPINION

                                   ----------

      Appellant Derek Maurice Roots appeals from his convictions for assault

against a member of his family or household and aggravated assault with a

deadly weapon. In both cases, we affirm.
                               Background Facts

      In separate cases, a grand jury indicted appellant for third-degree-felony

assault against a member of his family or household1 and aggravated assault

with a deadly weapon.2 Each indictment contained an enhancement paragraph

alleging that appellant had been convicted of a felony in 1997. In each case,

appellant judicially confessed and pled guilty pursuant to a plea bargain

agreement. The trial court deferred its adjudication of appellant’s guilt in each

case and placed him on community supervision, with explicit conditions, for eight

years. The trial court also found the indictments’ enhancement paragraphs to be

true. In the case for aggravated assault with a deadly weapon, the trial court’s

deferred adjudication order did not express a deadly-weapon finding.3


      1
        The indictment for this charge alleged that appellant had impeded the
victim’s normal breathing or circulation of blood by applying pressure to her
throat or neck with his hand. See Tex. Penal Code Ann. § 22.01(b)(2)(B) (West
Supp. 2013).
      2
       See id. § 22.02(a)(2) (West 2011).
      3
        Contrary to a statement in appellant’s reply brief, a deadly-weapon finding
would not have precluded appellant’s placement on deferred-adjudication
community supervision. See Cabezas v. State, 848 S.W.2d 693, 694 (Tex. Crim.
App. 1993) (explaining that straight community supervision and deferred-
adjudication community supervision have different eligibility requirements under
the code of criminal procedure); West v. State, 702 S.W.2d 629, 634 (Tex. Crim.
App. 1986); Rodriguez v. State, 939 S.W.2d 211, 221 n.15 (Tex. App.—Austin
1997, no pet.) (op. on reh’g); see also Narez v. State, No. 05-08-00547-CR, 2009
WL 4912736, at *2 (Tex. App.—Dallas Dec. 22, 2009, no pet.) (mem. op., not
designated for publication) (“When there is an affirmative deadly[-]weapon
finding, the trial court may order deferred adjudication and impose community
supervision.”).


                                        2
      Less than two years later, the State filed petitions for the trial court to

proceed with the adjudication of appellant’s guilt of the charges, alleging that he

had committed a new offense, had failed to report to the community supervision

office, and had failed to pay fees. At a hearing, appellant pled true to some of

the petitions’ allegations. After receiving evidence, the trial court found all of the

allegations in the petitions to be true, revoked appellant’s community supervision,

and convicted him of each charge.

      As to appellant’s charge for assault on a member of his family or

household, the trial court sentenced him to twenty years’ confinement.

Concerning appellant’s charge for aggravated assault with a deadly weapon, the

trial court sentenced him to twenty-five years’ confinement. The trial court’s initial

judgment in the case for aggravated assault with a deadly weapon stated “N/A”

with respect to whether the trial court had entered a deadly-weapon finding. The

trial court ordered the sentences to run concurrently.

      After appellant filed a notice of appeal in both cases, the State filed a

motion for a judgment nunc pro tunc in the aggravated assault case. In the

motion, the State alleged that the “N/A” statement concerning whether the trial

court had entered a deadly-weapon finding was a clerical error because the trial

court had made a deadly-weapon finding by adjudicating appellant’s guilt for

aggravated assault with a deadly weapon. Thus, the State asked the trial court

to enter a new judgment that contained the entry of an affirmative deadly-weapon

finding. At the hearing on the State’s motion, a prosecutor explained,


                                          3
            The indictment in the underlying case, the [aggravated]
      assault case, says he threatened a female victim . . . with a firearm.
      Had that not been a deadly weapon, obviously that wouldn’t have
      been a felony. . . . So the fact that he was convicted of a felony
      necessitates the fact that the Court found it was a deadly weapon to
      give him this felony conviction.

             The reason we care about this is that on a 25-year sentence,
      [appellant] is showing to be eligible for parole in 2014, which is
      calculated incorrectly. I have talked to the . . . time calculation
      department. They told me that the reason they’re calculating it that
      way is because the face of the judgment does not say yes, finding of
      deadly weapon, yes. It says NA. That NA on this judgment . . . is a
      clerical error.

      At the end of the hearing, the trial court granted the State’s motion and

entered a nunc pro tunc order stating that a deadly weapon—specifically, a

firearm—had been used in the offense. In granting the State’s motion, the trial

court stated, “I believe that by pleading guilty to aggravated assault with a deadly

weapon and then me finding him guilty of aggravated assault with a deadly

weapon that that makes the specific finding that there was a deadly weapon

based on the charge contained in the indictment.”

                             The Assault Conviction

      In cause number 02-12-00439-CR, which is the appeal from appellant’s

conviction for assault against a member of his family or household, his appointed

appellate counsel has filed a motion to withdraw as counsel and a brief in support

of that motion. In the brief and motion, counsel avers that he has diligently

reviewed the record and that appellant’s appeal in cause number 02-12-00439-

CR is frivolous. Counsel’s brief and motion meet the requirements of Anders v.



                                         4
California by presenting a professional evaluation of the record and

demonstrating why there are no arguable grounds for relief. 386 U.S. 738, 744–

45, 87 S. Ct. 1396, 1400 (1967); see In re Schulman, 252 S.W.3d 403, 406–12

(Tex. Crim. App. 2008) (orig. proceeding) (analyzing the effect of Anders).

Appellant had an opportunity to file a pro se response to his counsel’s brief but

did not. The State has not filed a brief in cause number 02-12-00439-CR.

      Once an appellant’s court-appointed attorney files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders, we

must independently examine the record. See Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991); Alexander v. State, 301 S.W.3d 361, 363 (Tex.

App.—Fort Worth 2009, no pet.). Only then may we grant counsel’s motion to

withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the record and counsel’s brief.         We agree with

counsel that the appeal in cause number 02-12-00439-CR is wholly frivolous and

without merit; we find nothing in the record that might arguably support the

appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005);

see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).

Accordingly, we grant counsel’s motion to withdraw and affirm the trial court’s

judgment in cause number 02-12-00439-CR.

             The Aggravated Assault Judgment Nunc Pro Tunc

      In cause number 02-12-00440-CR, concerning appellant’s conviction for

aggravated assault with a deadly weapon, he has not expressly asked us to


                                        5
reverse his conviction or sentence. Instead, he argues only that the trial court

erred by granting the State’s motion for a judgment nunc pro tunc and by

therefore amending the judgment to include an explicit deadly-weapon entry that

neither the deferred adjudication order nor the original judgment adjudicating guilt

explicitly contained.

      The court of criminal appeals has explained that the purpose of a nunc pro

tunc judgment is to

      provide a method for trial courts to correct the record when there is a
      discrepancy between the judgment as pronounced in court and the
      judgment reflected in the record. The corrections must reflect the
      judgment that was actually rendered but that for some reason was
      not properly entered into the record at the time of the judgment.

             Corrections to the record are limited to clerical errors and are
      not appropriate for errors involving judicial reasoning.            The
      determination of whether an error is clerical or judicial is a matter of
      law, but a nunc pro tunc judgment is improper if it modifies, changes,
      or alters the original judgment pronounced in court, or has the effect
      of making a new order. Furthermore, nunc pro tunc judgments may
      not be used by a court to change the record to reflect what the court
      believes should have occurred in the original proceeding.

Blanton v. State, 369 S.W.3d 894, 897–98 (Tex. Crim. App. 2012) (citations

omitted); see Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007)

(explaining that through a judgment nunc pro tunc, a trial court can correct a

clerical error in the record but cannot change a judgment to reflect what should

have been done); Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988)

(“The purpose of a nunc pro tunc order is to correctly reflect from the records of

the court a judgment actually made by it, but which for some reason was not



                                         6
entered of record at the proper time.”); Ex parte Dopps, 723 S.W.2d 669, 670

(Tex. Crim. App. 1986) (“A nunc pro tunc order may be used to correct clerical

errors in a judgment, but not judicial omissions.”). The court of criminal appeals

has implied that nunc pro tunc proceedings are appropriate to include something

within a judgment when a statute has created a ministerial duty on the trial court

to include it. See Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004)

(stating that the code of criminal procedure requires a trial court to grant

presentence jail time credit and holding that if the trial court fails to do so, it may

correct the judgment through a nunc pro tunc order); see also Collins, 240

S.W.3d at 928 (stating that an “omission of any statutory back-time in [a]

judgment can be adjusted by a motion for judgment nunc pro tunc.”) (emphasis

added).

      One purpose of entering an affirmative deadly-weapon finding is to assist

in calculating a prisoner’s parole eligibility date. Kinkaid v. State, 184 S.W.3d

929, 930 (Tex. App.—Waco 2006, no pet.); see Ex parte Huskins, 176 S.W.3d

818, 821 (Tex. Crim. App. 2005) (explaining that although a deadly-weapon

finding is not part of a defendant’s sentence, the finding affects how the sentence

will be served). Specifically, when a deadly-weapon finding has been made and

entered in a judgment under section 3g(a)(2) of article 42.12 of the code of

criminal procedure, an inmate 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 sentence or 30 calendar years, whichever is less.”


                                          7
Tex. Gov’t Code Ann. § 508.145(d)(1) (West Supp. 2013).4 Section 3g(a)(2)

states that when a trial court makes an affirmative finding that a defendant used

or exhibited a deadly weapon during the commission of a felony offense, the

court “shall enter the finding in the judgment of the court.” Tex. Code Crim. Proc.

Ann. art. 42.12, § 3g(a)(2) (West Supp. 2013) (emphasis added).               Section

3g(a)(2) also states that on an “affirmative finding that the deadly weapon was a

firearm, the court shall enter that finding in its judgment.” Id. (emphasis added).

      The court of criminal appeals has held that a factfinder may make an

affirmative deadly-weapon finding by simply convicting a defendant based upon

an indictment that expressly contained and required a deadly-weapon finding.

See Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985)5 (“[I]f 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.’”); see also Crumpton v. State, 301 S.W.3d 663,

664 (Tex. Crim. App. 2009) (“[T]he verdict expressly found the defendant guilty of

the offense ‘as included in the indictment.’ The indictment expressly alleged that

the defendant committed the offense with ‘a deadly weapon.’             The verdict’s


      4
      Normally, an inmate is eligible for parole when the inmate’s actual
calendar time served plus good conduct time equals one-fourth of the sentence
imposed or fifteen years, whichever is less. Tex. Gov’t Code Ann. § 508.145(f).
      5
       The court of criminal appeals has disagreed with the premise that Polk
applies only to cases in which the jury was the factfinder on the issue of guilt.
See Hooks v. State, 860 S.W.2d 110, 112 (Tex. Crim. App. 1993).


                                          8
reference to the indictment therefore constituted a finding that that allegation was

true.”); Ex parte Empey, 757 S.W.2d 771, 774 (Tex. Crim. App. 1988) (holding

that an affirmative deadly-weapon finding arose as matter of law when an

indictment charged the defendant with the use of a deadly weapon and the judge

found the defendant guilty as alleged in the indictment); cf. Ruben v. State, 645

S.W.2d 794, 798 (Tex. Crim. App. [Panel Op.] 1983) (“The indictment contains

no mention of a ‘deadly’ weapon; therefore, the court acted improperly in entering

its finding as to the use of a deadly weapon in the absence of such an affirmative

finding by the jury, the appropriate trier of fact in this case.”). A deadly-weapon

finding may also be made as a matter of law, such as when the factfinder finds

that a firearm, which is a deadly weapon per se, has been used in the

commission of an offense. Polk, 693 S.W.2d at 394; see Tex. Penal Code Ann.

§ 1.07(a)(17)(A) (West Supp. 2013) (stating that “deadly weapon” includes a

firearm).

       We conclude that under Polk, the trial court made a deadly-weapon finding

when it convicted appellant. Appellant’s indictment expressly alleged that he

intentionally or knowingly threatened bodily injury to a victim and that he used or

exhibited a deadly weapon (specifically, a firearm) during the commission of the

assault. Appellant’s plea admonishments described his offense as “Agg Asst

DW.”    In his judicial confession, appellant affirmed that he had read the

indictment and that he had “committed each and every act alleged therein.” He

also affirmed that all of the facts alleged in the indictment were true. The trial


                                         9
court’s 2010 order deferring adjudication of appellant’s guilt described his offense

as “AGGRAVATED ASSAULT WITH A DEADLY WEAPON, TO WIT:                                   A

FIREARM.”      At the beginning of the September 2012 hearing on the State’s

petition for the trial court to adjudicate appellant’s guilt, the trial court stated that

appellant had been charged with aggravated assault with a deadly weapon. In

the trial court’s judgment adjudicating guilt, the court stated that appellant had

been convicted of “AGGRAVATED ASSAULT WITH A DEADLY WEAPON, TO

WIT: A FIREARM.” Finally, while the judgment of conviction in this case does

not expressly state that the trial court found appellant guilty as charged in the

indictment, because the indictment did not allege that appellant caused serious

bodily injury to the victim, had the trial court not found that appellant used or

exhibited a deadly weapon, it could not have convicted him of aggravated assault

at all. See Tex. Penal Code Ann. § 22.02(a); see also Huskins, 176 S.W.3d at

820 (“By properly admonishing applicant and then accepting his guilty plea to the

indictment, the trial court necessarily determined that applicant used a deadly

weapon in the commission of the offense.”); Lafleur v. State, 106 S.W.3d 91, 93–

94 (Tex. Crim. App. 2003) (“[T]he jury in this case could not have found appellant

guilty of manslaughter without also expressly deciding that he used a firearm, a

deadly weapon per se.”).

      Having made a deadly-weapon finding under the rationale of Polk, did the

trial court have any discretion to not affirmatively enter that finding in the

judgment of conviction? That question is more difficult to resolve, if only because


                                           10
the court of criminal appeals appears to have answered it both ways. Three

years after deciding Polk, in Poe, the court of criminal appeals decided a nunc

pro tunc issue concerning the entry of a deadly-weapon finding under

circumstances that were similar to those at issue in this case. Poe had been

found guilty of murder by a jury, and although an affirmative finding concerning

the use of a deadly weapon had not been specifically entered in his original

judgment, his parole eligibility was being calculated as if a deadly-weapon finding

had been entered. See Poe, 751 S.W.2d at 874. Poe filed an application for a

writ of habeas corpus, and at the hearing on his application, the trial court

amended the original judgment, by way of nunc pro tunc, to include the entry of a

deadly-weapon finding. Id. at 875. On appeal, Poe contended that the trial

court’s nunc pro tunc judgment was erroneous. Id. Relying on Polk, the court of

criminal appeals first concluded that the jury had made a deadly-weapon finding

by finding Poe guilty as charged in the indictment, which had alleged the use of a

handgun, a deadly weapon per se. Id. Then, considering the language of article

42.12 expressing that a trial court “shall” enter such a finding in a judgment, the

court concluded that the trial court’s nunc pro tunc judgment was proper,

explaining,

      Article 42.12, . . . § 3g(a)(2), contemplates a two-step process. First,
      the trier of fact must make an affirmative finding that the defendant
      used or exhibited a deadly weapon. Second, after an affirmative
      finding is made by the trier of fact, the finding shall be entered in the
      judgment by the trial court.

              ....


                                         11
              Responding to a Texas Department of Corrections letter to the
      trial judge relative to whether an affirmative finding had been made
      and [Poe’s] habeas corpus contentions, the trial judge ordered a
      judgment nunc pro tunc to correctly recite his findings on the use of
      a deadly weapon. The order recognized the failure of the original
      judgment to include a proper finding of the use or exhibition of a
      deadly weapon. . . . The applicant contends that the trial court was
      without authority to enter the nunc pro tunc judgment.

             ....

             As previously stated, Article 42.12 . . . clearly mandates that
      the trial judge enter in the judgment a finding that a deadly weapon
      was used or exhibited during the commission of an offense, once the
      trier of fact makes a proper affirmative finding as per Polk. In the
      present case, the trier of fact undoubtedly made such an affirmative
      finding. Once this determination had been made the trial judge was
      required to reflect this by making a proper entry in the judgment.
      The trial judge retained 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. The trial
      judge did not err in correcting this error by entering a judgment nunc
      pro tunc which properly reflected what the trier of fact had
      determined.

Id. at 875–76 (emphasis added) (citations omitted); accord Curry v. State, 720

S.W.2d 261, 263 (Tex. App.—Austin 1986, pet. ref’d) (stating that discretion on

deadly-weapon findings exists in the first step of the process—the making of the

finding—but that once the finding is made, “the statute imposes a mandatory duty

on the trial court to enter the finding in the judgment”).

      Five years after concluding in Poe that the making of a deadly-weapon

finding requires the entry of that finding in the judgment, a majority of the court of

criminal appeals appeared to reach the opposite conclusion, if implicitly so, in

Hooks, 860 S.W.2d at 113.          Hooks had been charged and convicted for



                                          12
committing aggravated assault with a deadly weapon, and the court resolved the

question of whether that conviction precluded her placement on straight

probation based on the deadly-weapon finding. Id. at 111; see also Tex. Code

Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (stating that a defendant may not be

placed on court-ordered straight community supervision when it is shown that a

deadly weapon was used or exhibited during the commission of a felony

offense). Although the court referred to Poe and did not purport to overrule it, the

court distinguished between the making and entering of a deadly-weapon finding

and, contrary to Poe, implied that entering such a finding need not follow the

making of such a finding. See Hooks, 860 S.W.2d at 113–14; see also Dickson

v. State, 988 S.W.2d 261, 263 (Tex. App.—Texarkana 1998, pet. ref’d) (“The

holding in the Hooks case appears to have made the entry of an affirmative

finding of the use of a deadly weapon discretionary in cases where the court is

the trier of fact.”). Three judges dissented, relying on Poe and stating that having

made an affirmative deadly-weapon finding, the “trial judge was required to

‘enter’ that finding. He ha[d] no discretion to do otherwise.” Hooks, 860 S.W.2d

at 116 (Baird, J., dissenting).

      Some courts, in attempting to assuage the apparent conflict between Poe

and Hooks, have concluded that the rule in Poe—that the entry of a deadly

weapon finding in a judgment must follow the making of the finding—applies only

to cases in which the jury was the factfinder, while the rule in Hooks—apparently

leaving discretion concerning the entry of the finding—applies only to cases in


                                        13
which the trial court was the factfinder on the issue of guilt. See McCallum v.

State, 311 S.W.3d 9, 19 (Tex. App.—San Antonio 2010, no pet.) (“If Hooks has

made the entry of an affirmative finding discretionary, it has done so only in

cases where the trial judge acts as the trier of fact.”); Brooks v. State, 900

S.W.2d 468, 475 (Tex. App.—Texarkana 1995, no pet.) (holding similarly);

Martinez v. State, 874 S.W.2d 267, 268 (Tex. App.—Houston [14th Dist.] 1994,

pet. ref’d) (holding similarly). But there are problems with this approach.

      First, the majority opinion in Hooks indicated that deadly-weapon matters

should not be treated differently depending on whether a jury trial or bench trial

occurred. 860 S.W.2d at 112. Second, and more importantly, section 3g(a)(2) of

article 42.12, which served as the principal basis for the decision in Poe, does

not differentiate between jury trials and bench trials; it unambiguously and simply

requires deadly-weapon findings to be entered into judgments. See Tex. Code

Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (“On an affirmative finding under this

subdivision, the trial court shall enter the finding in the judgment of the court.”)

(emphasis added); Loud v. State, 329 S.W.3d 230, 240 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d) (Frost, J., dissenting) (recognizing that the “statute in

question makes no distinction between bench trials and jury trials”).

      We conclude that the facts and rationale from Poe, which, unlike Hooks,

particularly concerned a trial court’s judgment nunc pro tunc, should govern the




                                          14
analysis in this case.6 Under Poe and Polk, we conclude and hold that because

the trial court had already found, upon entering the original judgment of

conviction, that appellant had used or exhibited a deadly weapon in committing

aggravated assault, the court did not err by later following section 3g(a)(2) and

clerically entering that finding through a nunc pro tunc judgment. See Poe, 751

S.W.2d at 876 (“Once this [deadly-weapon] determination had been made the

trial judge was required to reflect this by making a proper entry in the

judgment. . . . 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.”); Polk, 693

S.W.2d at 394; see also Tex. Code Crim. Proc. Ann. art. 42.01, § 1(21) (West

Supp. 2013) (stating that a judgment “shall reflect” affirmative findings entered

under section 3g(a)(2)); Montoya v. State, No. 07-11-00492-CR, 2012 WL

2847902, at *3 (Tex. App.—Amarillo July 11, 2012, no pet.) (mem. op., not

designated for publication) (reforming an “N/A” entry in a judgment to reflect an

affirmative deadly-weapon finding when the record showed that the appellant had

been convicted by the trial court of aggravated assault with a deadly weapon); In

re Garcia, No. 01-11-00796-CR, 2011 WL 6938509, at *2 (Tex. App.—Houston


      6
        Hooks does not directly answer the question presented in this case, which
is whether a trial court has the discretion not to enter a deadly-weapon finding in
a final judgment of conviction in which the sentence is not suspended. See 860
S.W.2d at 111 (“We granted the petition for discretionary review to determine
whether the court of appeals correctly held that ‘the limitation of [section 3g(a)(2)
of article 42.12] applies . . . ,’ so that the trial court was precluded from placing
appellant on probation . . . .”).


                                         15
[1st Dist.] Dec. 29, 2011, orig. proceeding) (mem. op., not designated for

publication) (“[W]e hold that the trial court, in its judgment nunc pro tunc, entered

an affirmative finding on the use of a deadly weapon, which constituted a

permissible correction of a clerical error, and the judgment is not void.”); Clark v.

State, 754 S.W.2d 499, 500–01 (Tex. App.—Fort Worth 1988, no pet.) (affirming

a judgment nunc pro tunc that added the entry of a deadly-weapon finding when

the jury had found the defendant guilty of murder by using a firearm); Curry, 720

S.W.2d at 263 (affirming a judgment nunc pro tunc that added the entry of a

deadly-weapon finding because the “entry of the [deadly-weapon] finding in the

judgment is merely a clerical step necessary to see to it that the affirmative

finding is given effect”).

       To argue that the trial court erred by granting the State’s motion for

judgment nunc pro tunc, appellant relies in part on our decision in Johnson v.

State, 233 S.W.3d 420 (Tex. App.—Fort Worth 2007, pet. ref’d). Johnson was

charged with attempted capital murder of more than one person in the same

transaction. Id. at 422. He pled guilty under a plea bargain. Id. In convicting

him, a trial court initially signed a judgment that stated “NONE” with respect to

whether the court had entered a deadly-weapon finding. Id. at 422–23. More

than four years later, the State filed a motion for judgment nunc pro tunc, alleging

that the trial court had inadvertently omitted a deadly-weapon finding. Id. at 423.

The trial court granted the motion and changed the judgment to state that

Johnson had used or exhibited a deadly weapon. Id. at 423–24. We agreed with


                                         16
Johnson that the trial court had erred by doing so because (1) the State did not

prove that the making of a deadly-weapon finding was part of its plea bargain,

and (2) the record did not show any intent of the trial court to find Johnson guilty

under allegations that necessarily included the use of a deadly weapon. Id. at

426–27. We distinguished cases in which deadly-weapon findings arose as a

matter of law. Id. at 427–28.

      Here, as explained above, the trial court’s finding of the use or exhibition of

a deadly weapon was a necessary component of appellant’s conviction.

Therefore, Johnson is distinguishable on its facts.7 And although our opinion in

Johnson included language indicating that a trial court has discretion to decline to

enter a deadly-weapon finding after making it, see id. at 425, that language was

not necessary to the disposition of the appeal and was therefore nonbinding dicta

that we decline to follow. See Aguirre-Mata v. State, 125 S.W.3d 473, 476 (Tex.

Crim. App. 2003).

      For all of these reasons, we conclude that the trial court did not err by

granting the State’s motion for judgment nunc pro tunc and by correcting the

original judgment to add the entry of the deadly-weapon finding that the trial court




      7
        Another case that appellant relies on, Fanniel v. State, is similarly
distinguishable. 73 S.W.3d 557, 560 (Tex. App.—Houston [1st Dist.] 2002, no
pet.) (“Because the record shows the trial court never made an affirmative finding
on the enhancement paragraph, we consider the trial court’s omission to be a
judicial error and not a clerical error.”).


                                        17
had previously made. We overrule appellant’s only issue in cause number 02-

12-00440-CR.

                                Conclusion

     For the reasons expressed above, we affirm the trial court’s judgment in

each cause number.




                                               TERRIE LIVINGSTON
                                               CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

GARDNER, J., concurs without opinion.

PUBLISH

DELIVERED: December 19, 2013




                                    18
