                                                                                            PD-0125-14
                                                                       COURT OF CRIMINAL APPEALS
                                                                                        AUSTIN, TEXAS
                                                                       Transmitted 9/30/2015 4:37:14 PM
October 1, 2015
                                                                         Accepted 10/1/2015 9:09:18 AM
                                                                                         ABEL ACOSTA
                       IN THE COURT OF CRIMINAL APPEALS                                          CLERK
                                   OF TEXAS

  VERA ELIZABETH GUTHRIE-NAIL                    §
      APPELLANT                                  §
                                                 §
  v.                                             §           No. PD-0125-14
                                                 §
  THE STATE OF TEXAS,                            §
      APPELLEE                                   §

                        STATE’S MOTION FOR REHEARING

  TO THE HONORABLE COURT OF CRIMINAL APPEALS:

           COMES NOW, the State of Texas, by and through Greg Willis, the Collin

  County Criminal District Attorney, and the undersigned attorney, and files this

  Motion for Rehearing, pursuant to Texas Rule of Appellate Procedure 79.1. In

  support of its motion, the State would show the following:

                             SUMMARY OF ARGUMENT

           I. This Court’s conclusion that the record was ambiguous regarding
           whether the trial court intended to make or decline a deadly weapon
           finding does not address a crucial piece of evidence—the trial court’s
           docket sheet—that prior precedent holds should be considered. The
           implication that the docket sheet was not considered merely because it
           was a computer printout sows confusion among the lower courts and
           should be clarified.

           II. While a trial court may ordinarily have discretion to decline to
           make a deadly weapon finding, this discretion is sharply limited in a
           plea bargain. The trial court has no discretion to add or remove
           conditions in a plea-bargain agreement, and accordingly it has no
           discretion to decline to make a deadly weapon finding as
           contemplated by the plea bargain.

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      III. This Court’s precedent holds that a trial court necessarily makes a
      deadly weapon finding when it finds the defendant guilty as alleged in
      the indictment if the indictment alleges a deadly weapon.
      Accordingly, a trial court must expressly indicate it is using its
      discretion not to make such a finding or one is made as a matter of
      law.

                          STATEMENT OF THE CASE

      The Dallas Court of Appeals affirmed the trial court’s issuance of a

judgment nunc pro tunc. Guthrie-Nail v. State (“Guthrie-Nail I”), No. 05-13-

00016-CR, 2014 WL 61037, at *1 (Tex. App.—Dallas Jan. 8, 2014) (not

designated for publication). This Court issued its opinion reversing and remanding

the instant case on September 16, 2015. Guthrie-Nail v. State (“Guthrie-Nail II”),

No. PD-0125-14, 2015 WL 5449642, at *1 (Tex. Crim. App. Sept. 16, 2015). This

motion for rehearing is timely, being filed within fifteen days of the Court’s

judgment. Tex. R. App. P. 79.1.

                         ARGUMENT & AUTHORITIES

      This Court’s opinion focused on the question of whether a trial court has

discretion to decline to enter an affirmative finding of a deadly weapon. In

deciding the issue, however, the Court’s opinion inadvertently raised additional

issues that must be clarified to provide guidance to the lower courts. The State

requests this Court reconsider its opinion in this case.




                                                                                 2
I. This Court failed to address the role of the docket sheet on its evaluation of
the trial court’s intent

      First, this Court failed to address a crucial piece of evidence in its

evaluation, and in doing so sowed confusion among the lower courts regarding

whether and to what extent electronic docket sheets may be considered by the

appellate courts. The majority concluded that the record was ambiguous as to the

trial court’s original intention—while the finding of guilty “as set forth in the

indictment” could support the view that the trial court intended to make a deadly

weapon finding, the judgment notation of “N/A” might indicate that the trial court

did not intend to make a deadly weapon finding. Guthrie-Nail II, slip op. at 9. But

in declaring the record ambiguous, the Court omitted one other key piece of

evidence relied upon by both the State and the Dallas Court of Appeals—the trial

court’s docket entry.

      The trial court’s docket sheet contains an entry on September 12, 2012, the

date of the plea, reading:

      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

CR 26 (italics added). The State relied upon this docket entry in its original brief

and post-submission letter-brief, and the Dallas Court of Appeals expressly
                                                                                   3
considered the docket entry as an indication of the trial court’s intent at the time

the plea was entered. Guthrie-Nail I, 2014 WL 61037, at *5 (finding the docket

entry “further supports the State’s contention that the trial court found that

appellant used a deadly weapon during the offense”).

      Although not a substitute for a written order, a docket entry has previously

been considered by this Court as “reliable as an indicator of the trial judge’s

decisions and the business of the court.” Stokes v. State, 277 S.W.3d 20, 24-25

(Tex. Crim. App. 2009). And this Court has long held that a docket entry is a valid

means of determining whether a judgment nunc pro tunc “was the judgment

actually pronounced by the trial court when the case was tried.” Ferguson v. State,

367 S.W.2d 695, 696 (Tex. Crim. App. 1963) (op. on reh’g). Thus, the docket

sheet can and should be considered in order to resolve the ambiguity this Court

found in the record.

      But this Court did not address the docket entry at all in its analysis. In the

majority opinion, the Court noted that the court of appeals partially relied on the

docket entry in reaching its conclusion. Guthrie-Nail II, slip op. at 4. Yet in

concluding the record was ambiguous, the majority only addressed the written

judgment and the trial court’s oral pronouncement. Id. at 9. It made no mention in

its analysis of the docket entry or why the entry was not sufficient to overcome the

ambiguity. However, the majority noted in its recitation of facts that the record

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“contains what appears to be a computer printout of docket sheet entries.” Id. at 3.

Additionally, the concurrence expressed doubt that the docket entry could be

considered because it was a computer printout rather than “a notation in the judge’s

handwriting.” Guthrie-Nail II, Richardson, J., concurring, slip op. at 2. This leaves

the lower courts to guess whether the docket entry was not sufficient because it

was a computer printout rather than handwritten, whether it was insufficient for

some other reason, or whether it was simply inadvertently omitted.

       The simple dismissal of a docket sheet because it is a computer printout

raises troubling concerns for courts around the state, both trial and appellate. May

computer-generated docket sheets be considered at all? Must trial judges add some

additional notations, such as initials or a signature, in order for an appellate court

to consider it? With the rising prominence of paperless offices and electronic filing

now authorized in certain criminal cases, electronic docket sheets will increasingly

become the rule rather than the exception.1 The majority opinion’s failure to

address the docket sheet, combined with the concurrence’s expressed skepticism of

it as a mere computer printout, leave the courts of this state uncertain of what may

be considered or what is necessary to render electronic docket sheets legitimate in

this Court’s eyes.



1
 As evidenced by the record in this case, Collin County courts switched from handwritten docket
sheets to wholly electronic ones in early 2012. Compare CR 4-5 with CR 6-19, 22-27.
                                                                                             5
      Thus, the State asks this Court to reconsider its opinion and issue a new

opinion either addressing the docket entry as an additional explanation of the trial

court’s intent or offering guidance to the lower courts regarding why the docket

entry cannot be considered.

II. This Court’s holding that a trial court may decline to enter a deadly
weapon finding does not apply to a plea bargain, which restricts a judge’s
discretion.

      Second, this Court’s holding that a trial court has discretion to refuse to enter

a deadly weapon finding failed to take into account that this case involved a plea

bargain, which limits the trial court’s discretion. A trial court ordinarily has great

discretion at sentencing to issue any sentence within the statutory guidelines.

However, when a case is resolved via plea bargain, the trial court’s discretion is

sharply limited. The trial court’s only role in the plea-bargain process is advising

the defense whether it will follow or reject the bargain struck between the parties.

Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim. App. 2009); Tex. Code Crim.

Proc. art. 26.13(a)(2). Only the State may offer or withdraw a plea bargain, and

accordingly “the trial court commits error if it unilaterally adds un-negotiated

terms to a plea-bargain agreement.” Moore, 295 at 332.

      The existence of a deadly weapon finding is a significant one, as it

considerably affects a defendant’s eligibility for parole. Tex. Gov’t Code

§ 508.145(d)(1); Guthrie-Nail II, slip op. at 3 (noting Appellant will not be eligible

                                                                                     6
for parole until she has served at least twenty-five years of her sentence if there is a

deadly weapon finding). As such, it is an important issue to both parties in a plea-

bargain process. Indeed, this Court has previously approved of plea-bargain

agreements that included the trial court not entering a deadly weapon finding. See

Ex parte Minott, 972 S.W.2d 760, 761 (Tex. Crim. App. 1998); Ex parte Hairston,

766 S.W.2d 790, 791 (Tex. Crim. App. 1989); Ex parte Stephenson, 722 S.W.2d

426, 428 (Tex. Crim. App. 1987); Ex parte Hopson, 688 S.W.2d 545, 547-48 (Tex.

Crim. App. 1985); Ex parte Garcia, 682 S.W.2d 581, 582-83 (Tex. Crim. App.

1985).

      A trial court’s discretion in a plea-bargain scenario is limited to accepting or

rejecting the plea bargain offered in the case. Here, Appellant entered into a plea

bargain that, while it did not expressly call for a deadly weapon finding, included

the exact language repeatedly approved of by this Court that necessarily amounts

to a deadly weapon finding—that Appellant was pleading guilty “as alleged in the

indictment” to an indictment that alleged a deadly weapon. CR 29, 30, 32; see Ex

parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). The trial court was free

to accept or reject the plea bargain. It was not, however, free to add “un-negotiated

terms” to the agreement. See Moore, 295 at 332. Thus, regardless of a trial court’s

ordinary discretion not to enter a deadly weapon finding, it did not possess that

discretion in this case because it was a plea bargain. The trial court’s nunc pro tunc

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in this case accurately reflected the terms of the bargained-for sentenced and

should be upheld.

III. This Court should not conclude the trial court declined to make an
affirmative finding of a deadly weapon absent an express statement

      Finally, even if the trial court had discretion to decline to make a deadly

weapon finding, this Court should not conclude it did so absent an express

statement. To hold otherwise contradicts decades of this Court’s precedent and

unnecessarily sows confusion about past cases.

      This Court has long held that a verdict in certain circumstances constitutes

an affirmative finding of a deadly weapon. In Polk v. State, this Court held that a

jury’s verdict that a defendant is guilty “as alleged in the indictment” constitutes an

affirmative finding of a deadly weapon so long as the deadly weapon was alleged

in the indictment. Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). It

reaffirmed this conclusion three years later in cases where the trial court was the

finder of fact. Ex parte Empey, 757 S.W.2d 771, 774 (Tex. Crim. App. 1988). And

this Court has also found that a deadly weapon finding need not be orally

pronounced by the trial court “if the allegation of use of a deadly weapon is clear

from the face of the indictment.” Ex parte Huskins, 176 S.W.3d 818, 821 (Tex.

Crim. App. 2005). This Court’s unwavering statement has been that an allegation

of a deadly weapon in an indictment coupled with the trial court’s verdict of guilty


                                                                                     8
as alleged in the indictment is a deadly weapon finding, regardless of whether it

was orally pronounced.

       If a trial court has discretion to decline to make a deadly weapon finding, as

this Court concluded in the instant case, then this Court should require that it do so

expressly, such as by stating when pronouncing sentence that no deadly weapon

finding would be made.2 Otherwise, this Court’s long-standing precedent would

hold that the deadly weapon finding was entered as a matter of law. To hold

otherwise would effectively overrule the clear statement in Huskins than no oral

pronouncement of a deadly weapon finding was necessary.

       The majority relied on Hooks v. State, 860 S.W.2d 110 (Tex. Crim. App.

1993), to conclude that a trial court must be able to decline to make a deadly

weapon finding. Guthrie-Nail II, slip op. at 8. But in Hooks, the question was

whether a finding was entered onto the judgment. This Court made numerous

distinctions between that situation and the questions in Polk and Empey regarding

whether a finding had been made. Hooks, 860 S.W.2d at 113 (noting that

“making finding is not entering affirmative finding; the trial judge must

2
  This Court makes much of the notation on the original judgment that the deadly weapon finding
was “N/A,” considering it an indication that the judge was declining to enter a finding. Guthrie-
Nail II, slip op. at 9. However, a finding of “no” or “none” would be declining to enter a finding.
“Not applicable” simply states that the deadly weapon issue was not applicable—which is not
true because a deadly weapon was alleged here, and thus a finding can be yes or no but is
certainly applicable to the case. A finding of “N/A” more likely demonstrates only that the trial
court used a template judgment applicable to all cases, including those with no deadly weapon
alleged, and did not update it to reflect either yes or no. At best, it is merely an ambiguous
indication of refusing to make a finding, as the majority held, rather than an explicit statement.
                                                                                                 9
enter separate and specific affirmative finding that deadly weapon was      used   or

exhibited” to bar probation).

      As this Court has held in Polk, Empey, Huskins, and numerous other cases, a

deadly weapon finding is necessarily made when the indictment alleges a deadly

weapon and the trial court finds the defendant guilty as alleged in the indictment. If

the trial court intends to exercise the discretion contemplated by this Court in

Hooks and the instant case, then it must do so expressly if it intends to override the

finding that would otherwise be made as a matter of law. Because the trial court

here did not expressly exercise that discretion, it necessarily made a deadly weapon

finding, and that finding was properly added to the judgment via nunc pro tunc.

                                     PRAYER

      WHEREFORE, premises considered, the State prays that this Court will

grant its Motion for Rehearing, reconsider its opinion, and issue a new opinion

addressing the above issues.

                                            Respectfully submitted,

                                            GREG WILLIS
                                            Criminal District Attorney
                                            Collin County, Texas

                                            JOHN R. ROLATER, JR.
                                            Assistant Criminal District Attorney
                                            Chief of the Appellate Division

                                            /s/ Andrea L. Westerfeld
                                            ANDREA L. WESTERFELD
                                                                                   10
                                           Assistant Criminal District Attorney
                                           2100 Bloomdale Road, Suite 200
                                           McKinney, Texas 75071
                                           State Bar No. 24042143
                                           (972) 548-4323
                                           FAX (214) 491-4860
                                           awesterfeld@co.collin.tx.us



                            CERTIFICATE OF SERVICE

      A true copy of the State’s brief has been electronically served on counsel for

Appellant, John Tatum, and a courtesy copy sent to jtatumlaw@gmail.com on this,

the 30th day of September, 2015.

                                             /s/ Andrea L. Westerfeld
                                             Andrea L. Westerfeld



                         CERTIFICATE OF COMPLIANCE

      This brief complies with the word limitations in Texas Rule of Appellate

Procedure 9.4(i)(2). In reliance on the word count of the computer program used to

prepare this brief, the undersigned attorney certifies that this brief contains 2,088

words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).



                                             /s/ Andrea L. Westerfeld
                                             Andrea L. Westerfeld



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