                                                                                     pd-0125-14
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 11/30/2015 12:00:00 AM
                                                                   Accepted 11/30/2015 9:15:30 AM
November 30, 2015
                                                                                    ABEL ACOSTA
                                NO. PD- 0125-14                                             CLERK

                                    IN THE

                    COURT OF CRIMINAL APPEALS
                                  OF TEXAS
                                AUSTIN, TEXAS


                    VERA ELIZABETH GUTHRIE-NAIL
                              Appellant, Petitioner
                                      v.
                           THE STATE OF TEXAS,
                              Appellee, Respondent


                    Appellant’s Response to the State’s
                          Motion for Rehearing

                    On Petition for Discretionary Review From
                             Cause No. 05-13-00016-CR
                              COURT OF APPEALS
                    FOR THE FIFTH DISTRICT OF TEXAS
                               AT DALLAS, TEXAS


                On appeal from Cause Number 401-80635-2012
                     in the 401st Criminal District Court
                            of Collin County, Texas
                  Honorable Mark J. Rusch, Judge Presiding

                                 JOHN TATUM
                                  Summit Park
                           2150 S. Central Expressway
                                    Suite 200
                            McKinney, Texas 75070
                                 (972) 705-9200
                               BAR NO. 19672500
                             jtatumlaw@gmail.com
                         ATTORNEY FOR APPELLANT
                 IDENTITIES OF PARTIES AND COUNSEL

VERA ELIZABETH GUTHRIE-NAIL            APPELLANT


HONORABLE JOHN TATUM                   ATTORNEY FOR APPELLANT
Summit Park                            (On Appeal)
2150 S. Central Expressway
Suite 200
McKinney, Texas 75070


HONORABLE RICHARD FRANKLIN             ATTORNEY FOR APPELLANT
12225 GREENVILLE AVE.                  (TRIAL)
SUITE 252-LB 130
DALLAS, TEXAS 75243

HONORABLE GREG WILLIS                  CRIMINAL DISTRICT ATTORNEY
2100 Bloomdale Road, Suite 200         COLLIN COUNTY, TEXAS
McKinney, Texas 75071

HONORABLE JOHN R. ROLATER, JR.         ASSISTANT CRIMINAL DISTRICT
2100 Bloomdale Road, Suite 200         ATTORNEY-CHIEF OF THE
McKinney, Texas 75071                  APPELLATE DIVISION

HONORABLE ANDREA L. WESTERFELD ASSISTANT CRIMINAL
2100 Bloomdale Road, Suite 200 DISTRICT ATTORNEY
McKinney, Texas 75071

HONORABLE MARK RUSCH                   JUDGE PRESIDING
Collin Court of Court of Law           401ST CRIMINAL
University Drive Courts Facility       DISTRICT COURT
1800 N. Graves St.                     OF COLLIN COUNTY, TEXAS
McKinney, Texas 75069




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                                  TABLE OF CONTENTS

                                                                              PAGE

IDENTITIES OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv

SUPPLEMENTAL PROCEDURAL HISTORY. . . . . . . . . . . . . . 1-2

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

ISSUES ON TRIAL ON MERITS

APPELLANT/PETITIONER’S GROUND FOR REVIEW
ON PETITION FOR DISCRETIONARY REVIEW NO. 1

THE TRIAL COURT ERRED IN SIGNING A NUNC PRO TUNC ORDER
TO ADD AN AFFIRMATIVE DEADLY WEAPON FINDING TO A
JUDGEMENT ALMOST THREE MONTHS AFTER THE TRIAL COURT
SIGNED THE ORIGINAL JUDGEMENT WHICH CITED “N/A” IN THE
SPACE FOR DEADLY WEAPON FINDING

APPELLANT/PETITIONER’S GROUND FOR REVIEW
ON PETITION FOR DISCRETIONARY REVIEW NO. 2

THE TRIAL COURT ERRED BY SIGNING THE ORDER NUNC PRO
TUNC BECAUSE THE TRIAL COURT’S OMISSION OF AN
AFFIRMATIVE FINDING ON THE ORIGINAL JUDGEMENT WAS A
JUDICIAL DECISION AND NOT A CLERICAL ERROR




                                                 iii
APPELLANT/PETITIONER’S GROUND FOR REVIEW
ON PETITION FOR DISCRETIONARY REVIEW NO. 3

THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW
AND THE RIGHT TO CONFRONTATION WHEN AFTER SIGNING THE
ORIGINAL JUDGEMENT THE TRIAL COURT ALMOST THREE
MONTHS LATER ENTERED AN ERRONEOUS JUDGEMENT NUNC
PRO TUNC ADDING A DEADLY WEAPON FINDING WITHOUT
NOTICE TO APPELLANT

RESPONSE TO STATE’S ARGUMENT
ISSUE NO. I    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

ISSUE NO. II                .................................... 4

ISSUE NO. III               . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

PRAYER                      .................................... 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . 9




                                                        iv
                SUPPLEMENTAL PROCEDURAL HISTORY

      On the 12th day of September, 2012 before the Honorable Mark J. Rusch,

the Defendant, Vera Elizabeth Guthrie Nail, entered a plea of guilty to the charge

of conspiracy to commit capital murder contained in Count II of the indictment.

(RR: Vol. Plea and Sentencing p. 10) Several days prior to the change of plea and

enter of a guilty plea Appellant had entered a plea of not guilty to Count I of the

indictment charging her with Capital Murder and Count II of the indictment

charging her with Conspiracy to Commit Capital Murder. A jury was impaneled

and evidence was presented. The trial was stopped when the State and Defense

agreed to enter into a plea bargain agreement. The Court found the Defendant

guilty and found that her plea of guilty was made freely, voluntarily, knowingly

and competently following a plea bargain agreement. The Court sentenced the

Defendant to 50 years confinement in the Institutional Division of the Texas

Department of Criminal Justice pursuant to the plea bargain agreement. (RR: Vol.

Plea and Sentencing p.15)

       The original judgment in the case entered on September 24, 2012 recited

“N/A” in the space provided for “Finding on Deadly Weapon.” The trial court

subsequently signed a judgment nunc pro tunc listing the “Findings on Deadly

Weapon” as “Yes, a Firearm” on December 4, 2012. The Court of Appeals

                                          1
affirmed the entry of the judgment nunc pro tunc conviction in an opinion

delivered on January 8, 2014. On September 16, 2015 this Court issued majority

and dissenting opinions. On September 16, 2015 the State filed a motion for

rehearing. On November 18, 2015 this Court granted the motion for rehearing and

reset this case for submission on December 2, 2015.

 SUMMARY OF ARGUMENT ON STATE’S MOTION FOR REHEARING

      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.

      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

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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.

                    RESPONSE TO STATE’S ARGUMENT

I.    This Court’s majority opinion focused on more than the question of whether

a trail court has discretion to enter an affirmative finding of a deadly weapon.

Appellant/Petitioner submits that the opinion did not “inadvertently” raise

additional issues; however, this Court has decided to resubmit the case on petition

for discretionary review.

      Appellant/Petitioner argues that the opinion does address the role of the

‘docket sheet’ in its opinion by labeling it as ambiguous. The State submits that

Collin County changed from handwritten docket sheets to wholly electronic ones;

however, the record on appeal is ambiguous as to this claim. It is clear that

Appellant/Petitioner was not given notice or an opportunity to be present during

the making of the ‘docket sheet’ by the Clerk to challenge any error in translation

from any alleged judge’s entry or clerk’s entry into what appeared in the clerk’s

record that would effect her parole status.

      The ‘docket sheet’ as it appears in the clerk’s record looks more like the

clerk’s minutes than what was formerly and traditionally recognized as a docket

                                          3
sheet. A traditional docket sheet would normally have entries made by the

presiding judge with the judge’s signature or initials. The current form in the

record on appeal does not contain any authentication by the presiding judge.

       The State requests that the Court address in its opinion how the Court

weighs the docket sheet in cases. In the case at bar the document found in the

record appears to be a clerk’s minutes book, not a traditional judge’s docket sheet.

II.    The State argues that a trial court cannot alter a plea bargain between the

State and Appellant/Petitioner in this case. Appellant/Petitioner submits that the

trial judge did not alter the terms of the plea bargain which were written and found

at Clerk’s record pp. 30-36. The plea bargain was drafted by the State’s attorney.

       The plea of guilty was to the offense of conspiracy to commit Capital

Murder as charged in or as a lesser included offense of the charge in Count II of

the indictment. The written plea bargain does not state that the defendant agreed

or stipulated to a finding that a deadly weapon was to be made by the trial court.

The judgement as drafted by the State (CR pp. 37-39) has the entry N/A which is

an abbreviation for ‘not applicable’ under the heading “Findings on Deadly

Weapon.”

III.   The law as stated in the majority opinion requires an ‘express

determination’ of a deadly weapon finding. The State’s argument under this

                                          4
section would require that the law be changed to not require an ‘express

determination’ of a deadly weapon but an express statement that there would be no

deadly weapon finding.

      Appellant/Petitioner argues in the alternative that the Court consider the

analysis expressed in Judge Myers’ dissenting opinion. The offense in this case is

the inchoate crime of conspiracy. There is no evidence that Appellant/Petitioner

used or exhibited a deadly weapon during the commission of the conspiracy. The

commission of a capital murder is a completely separate crime from the conspiracy

to commit capital murder. The defendant did not plead guilty to being a party.

There was no mistake to correct.




                                         5
                                     PRAYER

             For the reasons stated, it is respectfully submitted that the Court of

Appeals should review the issues of error and then sustain the issues raised, set

aside or hold void the second judgment nunc pro tunc as applied to

Appellant/Petitioner, and hold that the original judgement is the correct judgment

entered in this case, or in the alternative remand for a hearing consistent with due

process.

                                          Respectfully submitted,


                                             /s/ John Tatum
                                          John Tatum
                                          Counsel for Appellant
                                          Summit Park
                                          2150 S. Central Expressway
                                          Suite 200
                                          McKinney, Texas 75070
                                          Phone No. (972) 705-9200
                                          Fax No. (972) 690-9901
                                          SBOT# 19672500




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                          CERTIFICATE OF SERVICE



      I, JOHN TATUM, do hereby certify that a true and correct copy of the

foregoing Brief for Appellant/Petitioner was delivered to Greg Willis 2105 S.

McDonald Suite 324, McKinney, Texas 75069 and State’s Counsel in Austin,

Texas on this 29th day of November, 2015.

                                            /s/ John Tatum
                                         John Tatum


                         CERTIFICATE OF SERVICE

      The undersigned attorney for Appellant/Petitioner certifies that a true and

correct copy of the foregoing brief was mailed , postage prepaid, to Vera Elizabeth

Guthrie Nail , TDCJ# 01813126 at the Crain Unit, 1401 State School Road,

Gatesville, TX 76599-2999 by U.S. Mail this the 29th day of November, 2015.



                                           /s/ John Tatum
                                         John Tatum




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CERTIFICATE OF COMPLIANCE OF WORD COUNT PURSUANT TO
            APPELLATE RULE OF PROCEDURE 9.4

      I certify that this document has 1,026 words pursuant to the definitions of
length and content in Rule 9.4. (C)(i)(2)(D)

      A. Case Name: Vera Elizabeth Guthrie - Nail
      B. The Court of Criminal Appeals
      C. The Type of Document: Response to the State’s Motion for Rehearing
      D. Party for whom the document is being submitted: Appellant/Petitioner
      E. The Word Processing Software and Version Used to Prepare the Brief:
      Word Perfect X7
      Copies have been sent to all parties associated with this case.

       /s/ John Tatum      11/ 29/2015
      (Signature of filing party and date)




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                       CERTIFICATE OF COMPLIANCE

      I certify that this submitted e-mail attachment to file Petition for
Discretionary Review complies with the following requirements of the Court:

      1. The petition is submitted by e-mail attachment;

      2. The e-mail attachment is labeled with the following information:


      A. Case Name: Vera Elizabeth Guthrie- Nail
      B. The Appellate Case Number: No. PD-0125-14
      C. The Type of Document: Response to State’s Motion for Rehearing
      D. Party for whom the document is being submitted: Appellant/Petitioner
      E. The Word Processing Software and Version Used to Prepare the Motion :
      Word Perfect X7

      3. Copies have been sent to all parties associated with this case.

         /s/ John Tatum                                  11/29/15
      (Signature of filing party and date)

      John Tatum
      (Printed name)

      John Tatum, Attorney at Law

      Emailed Copy of Petition




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