     Case: 14-10305   Document: 00512945418     Page: 1   Date Filed: 02/24/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                 No. 14-10305                 February 24, 2015
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA

                                           Plaintiff – Appellee
v.

JOSE ALFREDO SANCHEZ-SANCHEZ

                                           Defendant – Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Jose Alfredo Sanchez-Sanchez appeals his sentence and challenges the
district court’s application of an enhancement based on a prior Texas
conviction for a crime of violence. We are asked to determine whether the
district court was precluded from relying on a Texas state court’s facially
inconsistent judgment of conviction, which recited Sanchez-Sanchez’s plea of
guilty to aggravated assault with a deadly weapon but made no separate
“affirmative findings” on the use of a deadly weapon. Finding the inconsistency
fully explained by the law of Texas, which provides that entry of a separate
affirmative deadly weapon finding is relevant only to sentencing and does not
alter the underlying offense of conviction, we affirm.
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                                       No. 14-10305
                                              I.
       Sanchez-Sanchez pled guilty in 2013 to illegal reentry following
deportation in violation of 8 U.S.C. § 1326. His presentence report (PSR)
assigned a total offense level of 18, which included a 12-level enhancement
pursuant to U.S.S.G. (“Guidelines”) § 2L1.2(b)(1)(A)(ii) based on Sanchez-
Sanchez’s 1990 Texas felony conviction for aggravated assault with a deadly
weapon. The PSR characterized the offense underlying the prior Texas
conviction as a qualifying “crime of violence.” 1
       Attached to the PSR were state court documents indicating that
Sanchez-Sanchez was indicted in Texas in 1989 and charged with “knowingly
and intentionally us[ing] a deadly weapon, to-wit: a knife, to threaten Mario
Cervantes, with imminent bodily injury by use of the said deadly weapon.” 2 He
agreed to plead guilty to the offense charged in the indictment in exchange for
two years of probation with deferred adjudication. His written plea agreement
expressly stated, as an “[a]dditional provision[ ] of the agreement[,] no deadly
weapon.” 3 Sanchez-Sanchez subsequently violated the conditions of his
probation and the court proceeded to adjudicate his guilt in November 1990. 4
The court’s written judgment form recited, in a space marked, “OFFENSE
CONVICTED OF,” that Sanchez-Sanchez was convicted of aggravated assault
with a deadly weapon. Nevertheless, consistent with the terms of his plea
agreement, in a space marked, “FINDINGS ON USE OF DEADLY WEAPON,”




       1 U.S.S.G § 2L1.2, cmt. n.1(B)(iii).
       2 R. at 117.
       3 Id.
       4 Under Texas law, “[u]nlike regular probation, a deferred adjudication does not

constitute a final conviction . . . [o]nly upon revocation (i.e. adjudication of guilt) does a
deferred adjudication become a conviction.” Jordan v. State, 36 S.W.3d 871, 876 (Tex. Crim.
App. 2001) (citations omitted).
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                                       No. 14-10305
the judgment expressed “no findings.” 5 Although the state court documents do
not identify the statute of conviction, the parties agree that Sanchez-Sanchez
was convicted under the 1988 version of Texas Penal Code § 22.02(a), which
criminalizes “Aggravated Assault.”
       At sentencing for Sanchez-Sanchez’s illegal reentry conviction, the
district court concluded that the 1990 aggravated assault conviction qualified
as a crime of violence under section 2L1.2(b)(1)(A)(ii) and applied the 12-level
enhancement. Counsel for Sanchez-Sanchez did not object to the enhancement
or the characterization of the underlying offense as a crime of violence.
Sanchez-Sanchez timely appealed.
                                              II.
       The Guidelines provide for a 12-level enhancement to a defendant’s base
offense level if he was previously deported after a conviction for a felony “crime
of violence.” 6 Relevant for our purposes, the application note to section 2L1.2
defines the term “crime of violence” to include, among other enumerated
offenses, “aggravated assault.” 7 Because the Guidelines “do not define the
enumerated crimes of violence,” we “adopt[ ] a common sense approach,




       5  The PSR also contained a second plea agreement, dated November 28, 1990—the
same date as the judgment of conviction. R. at 124. In contrast to the original plea agreement,
in the second agreement the space marked, “[a]dditional provisions of the agreement,” was
left blank. In Texas, when a defendant violates the conditions of probation and the court
proceeds with an adjudication of guilt, the trial judge “has no further obligation to comply
with the [original] plea bargain[ ].” Ex parte Huskins, 176 S.W.3d 818, 819 (Tex. Crim. App.
2005) (citation omitted). Yet consistent with Sanchez-Sanchez’s original plea agreement, the
written judgment indicated “no findings” as to deadly weapon. We therefore need not and do
not consider what effect, if any, the second agreement had on the validity of the original
agreement.
        6 U.S.S.G. § 2L1.2(b)(1)(A)(ii). Sanchez-Sanchez does not dispute that he was deported

after the 1990 conviction.
        7 Id. § 2L1.2, cmt. n. 1(B)(iii).

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                                        No. 14-10305
defining each crime by its generic, contemporary meaning.” 8 We must do so
even where, as here, the state’s label for an offense is identical to that
enumerated in the Guidelines. 9 We have previously defined the generic
meaning of “aggravated assault,” looking to contemporary resources like the
Model Penal Code, relevant treatises, modern state codes, and dictionary
definitions. 10 In the Fifth Circuit, “[t]he generic, contemporary meaning of
aggravated assault is an assault carried out under certain aggravating
circumstances.” 11 Among those circumstances we have listed “use of a deadly
weapon.” 12
       In determining whether a state conviction constitutes “aggravated
assault” in the generic sense, “we examine the elements of the statute of the
conviction rather than the specifics of the defendant’s conduct.” 13 This is
Taylor’s categorical approach. 14 If the statutory definition of the prior offense
criminalizes conduct that would not constitute a qualifying offense, then the
statute as a whole does not categorically qualify. If the statutory definition



       8 United States v. Martiez-Flores, 720 F.3d 293, 295-96 (5th Cir. 2013) (quoting United
States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir. 2006)) (internal quotation marks
omitted).
       9 United States v. Ramirez, 557 F.3d 200, 205 (5th Cir. 2009) (“State-law labels do not

control this inquiry because the [crime of violence] adjustment incorporates crimes with
certain elements, not crimes that happen to have the same label under state law.”) (citation
omitted).
       10 United States v. Esparz-Perez, 681 F.3d 228, 229-30 (5th Cir. 2012) (citation

omitted).
       11 Id. at 233 (citations omitted).
       12 United States v. Fierro-Reyna, 466 F.3d 324, 329 (5th Cir. 2006); see also United

States v. Mungia-Portillo, 484 F.3d 813, 817 (5th Cir. 2007) (explaining that Tennessee
defines aggravated assault to “include[ ] the two most common aggravating factors, the
causation of serious bodily injury and the use of a deadly weapon”); MODEL PENAL CODE §
211.1(2) (“A person is guilty of aggravated assault if he . . . attempts to cause or purposely or
knowingly causes bodily injury to another with a deadly weapon.”); 2 WAYNE R. LAFAVE,
SUBSTANTIVE CRIMINAL LAW § 16.2(d) (2d. ed.) (noting that aggravated assault includes
“assault with a dangerous or deadly weapon”) (alterations and citation omitted).
       13 Martiez-Flores, 720 F.3d at 296 (quoting Fierro-Reyna, 466 F.3d at 327).
       14 See Taylor v. United States, 495 U.S. 575, 602 (1990).

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                                     No. 14-10305
instead “falls within the generic definition of the listed offense, then the prior
offense is a [qualifying] crime of violence.” 15
      But some conviction statutes evade categorical classification under
Taylor. In some cases “a divisible statute, listing potential offense elements in
the alternative, renders opaque which element played a part in the defendant’s
conviction.” 16 If at least one alternative element constitutes “aggravated
assault” but at least one other alternative element does not, then the
categorical approach cannot provide the answer as to whether a conviction
under the statute qualifies. Although “the whole of the statute cannot be read
to constitute a crime of violence,” 17 it is nevertheless possible for a conviction
under the statute to qualify.
      Section 22.02 is one such statute. At the time of Sanchez-Sanchez’s
offense, April 27, 1989, section 22.02(a) provided that a person commits
aggravated assault if he commits assault under section 22.01 and he:
           (1) causes serious bodily injury to another, including the
               person's spouse;

           (2) threatens with a deadly weapon or causes bodily injury to
               [specified employees, including peace officers], when the
               person knows or has been informed the person assaulted is
               [one of the specified public employees]: (A) while the
               [specified public employee] is lawfully discharging an official
               duty; or (B) in retaliation for or on account of an exercise of
               official power or performance of an official duty as a
               [specified public employee];

           (3) causes bodily injury to a participant in a court proceeding
               when the person knows or has been informed the person
               assaulted is a participant in a court proceeding: (A) while the
               injured person is lawfully discharging an official duty; or (B)


      15 United States v. Cortez-Rocha, 552 F. App’x 322, 324 (5th Cir. 2014).
      16 Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).
      17 Cortez-Rocha, 552 F. App’x at 326.

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                                       No. 14-10305
               in retaliation for or on account of the injured person's having
               exercised an official power or performed an official duty as a
               participant in a court proceeding; or

            (4) uses a deadly weapon. 18

At least one offense criminalized by section 22.02 constitutes “aggravated
assault” in the generic sense defined above. A conviction under section
22.02(a)(4), which criminalizes assault attended by use of a deadly weapon,
would qualify as a crime of violence. 19 But some of the alternative offenses
criminalized under section 22.02 do not constitute “aggravated assault.” We
have held that the generic definition of aggravated assault does not include
“simple assault on a [peace] officer.” 20 A conviction under 22.02(a)(2) for
causing bodily injury to a peace officer, without the use of a deadly weapon,
would therefore not qualify. Moreover, we have previously considered the
specific language of section 22.02 in effect in 1974 and 1991, both of which
contain language substantially similar to the 1988 version of the statute. 21 In
both cases, we concluded that there are ways to violate section 22.02(a) that
would not quality as a crime of violence. 22
       The Supreme Court has developed the “modified” categorical approach
to help “effectuate the categorical analysis” where, as here, a defendant pleads
guilty to an offense criminalized by a statute that evades categorical




       18  Texas Penal Code § 22.02 (West 1988) (titled “Aggravated Assault), quoted as
amended by Acts 1987, 70th Leg., ch. 1101, § 12, eff. Sept. 1, 1987.
        19 Fierro-Reyna, 466 F.3d at 329; see United States v. Guillen-Alvarez, 489 F.3d 197,

198-201 (5th Cir. 2007).
        20 Fierro-Reyna, 466 F.3d at 329.
        21 See Cortez-Rocha, 552 F. App’x at 326; Fierro-Reyna, 466 F.3d at 326.
        22 Cortez-Rocha, 552 F. App’x at 326 (holding that “assault under section 22.01 and a

section 22.02 aggravating factor could be committed absent the use of destructive violent
force”); Fierro-Reyna, 466 F.3d at 326 (holding that section 22.02(a)(2) can be violated in a
way that is “simple assault” and thus not a qualifying crime of violence under section 2L1.2).
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                                       No. 14-10305
classification under Taylor. 23 Under the modified approach, a sentencing court
“may look beyond the statutory elements” to determine whether a conviction
qualifies. 24 This inquiry “is generally limited to examining the statutory
definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.” 25 These are known as “Shepard” documents. We examine
Shepard documents for the limited purpose of “determin[ing] which of a
statute’s alternative elements formed the basis of the defendant’s prior
conviction.” 26 We do not depart from the elements-based approach to look to
the defendant’s specific conduct. 27 It is the government’s burden to establish,
by introduction of Shepard documents, “a factual predicate justifying a
sentencing enhancement.” 28
       Sanchez-Sanchez concedes that the indictment, considered alone, would
establish a conviction for aggravated assault with a deadly weapon under
section 22.02(a)(4). 29 He argues, though, that that the contradictory
statements on the face of the judgment regarding the use of a deadly weapon,
read in conjunction with the terms of his original plea agreement,
“affirmatively cast[ ] doubt on” 30 whether he was ultimately convicted under
that subsection. The essence of his claim is that the government has not
eliminated the possibility that, although charged with an offense under section


       23 Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).
       24 Id. at 2284.
       25 Shepard v. United States, 544 U.S. 13, 16 (2005).
       26 Descamps, 133 S. Ct. at 2284-85 (“By reviewing the extra-statutory materials . . .

courts c[an] discover which statutory phrase contained within a statute listing several
different crimes[ ] covered a prior conviction.”) (internal quotation marks and citations
omitted).
       27 United States v. Herrera-Alvarez, 753 F.3d 132, 137-38 (5th Cir. 2014).
       28 See id. at 135 (quoting United States v. Bonilla, 524 F.3d 647, 655 (5th Cir. 2008))

(alterations and quotation marks omitted).
       29 Appellant’s Brief at 13.
       30 See United States v. Torres-Diaz, 438 F.3d 529, 534 (5th Cir. 2006).

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                                    No. 14-10305
22.02(a)(4), he pled guilty to a non-qualifying alternative offense. We find the
inconsistency fully explained by the law of Texas and conclude that the district
court committed no error. We need not and do not address the applicable
standard of review.
                                          III.
      To resolve this issue we must unravel the “labyrinthine procedure
followed in Texas state courts” by which a defendant can stand convicted of an
offense involving a deadly weapon even where the trial judge does not enter a
separate and affirmative deadly weapon finding. 31 We have held that “[i]n
Texas, an ‘affirmative finding’ that a deadly weapon was used is
significant only for the determination of whether . . . probation or parole can
be granted. In other words, the failure to make such an affirmative finding
relates to sentencing, not to the underlying offense conduct.” 32 We hold the
same today, and in explanation we trace the origins of this seeming
inconsistency in the judgment of conviction.
      At the time of Sanchez-Sanchez’s conviction, article 42.12 of the Texas
Code of Criminal Procedure, section 3g(a)(2), required that, “[u]pon affirmative
finding that the defendant used or exhibited a deadly weapon during the
commission of an offense . . . the trial court shall enter the finding in the
judgment of the court.” 33 In turn, article 42.18, section 8, provided, “if the
judgment contains an affirmative finding under Section [3g(a)(2)] of this
Article, [the prisoner] is not eligible for release on parole until his actual



      31  Waters v. Quarterman, No. 3-08-CV-360-P, 2008 WL 4427223, at *2 (N.D. Tex.
September 26, 2008).
       32 Sam v. I.N.S., 16 F.3d 1216, 1994 WL 57627, at *2 n.2 (5th Cir. Feb. 17, 1994)

(unpublished) (citing Ex parte Lucke, 742 S.W.2d 818, 819-20 (Tex. Ct. App.—Houston (1st)
1987)). Although Sam is unpublished, it is nonetheless fully precedential and binding
because it was issued before January 1, 1996. See 5th Cir. R. 47.5.3.
       33 Ex parte Poe, 751 S.W.2d 873, 875 (Tex. Crim. App. 1988) (en banc).

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                                      No. 14-10305
calendar time served, without consideration of good conduct time, equals one-
third of the maximum sentence or 20 calendar years, whichever is less . . . .” 34
In Lafleur v. State, 35 the Texas Court of Criminal Appeals shed light on these
provisions:
       In 1977, the Texas Legislature proposed adding a “deadly weapon”
       provision to article 42.12 . . . This measure would have numerous
       legal consequences, including the fact that “where a deadly weapon
       has been exhibited during a commission of an offense, the parole
       date is figured on flat time alone without consideration of good
       time.” During that session, the Texas Department of Corrections
       expressed concern to the Legislature that it would be unable to
       determine whether a particular inmate was subject to a deadly
       weapon finding if there were no express “deadly weapon” language
       contained in the indictment or elsewhere. Thus, the Legislature
       wrote the bill:

              so that when the trier of fact found that a deadly
              weapon or firearm was used in the commission of the
              offense, that finding would be entered on the
              judgment, which would then be sent with the order of
              commitment. Thus, the Department of Corrections
              would know how to compute the defendant's time for
              parole purposes.

       The provision was added as article 42.12, Section 3f(a)(2) [and later
       recodified at section 3g(a)(2)]. Providing a space in the written
       judgment form to record the factfinder's deadly weapon finding
       solved the notice problem for prison authorities. 36

The space in the written judgment form marked “FINDINGS ON USE OF
DEADLY WEAPON” thus provided a means for the trial judge to enter an



       34  Polk v. State, 693 S.W.2d 391, 392 (Tex. Crim. App. 1985) (en banc) (quoting Tex.
Code Crim. P. 42.12, § 15(b)); see Ex parte Poe, 751 S.W.2d at 874 n.1 & 2 (explaining that
section 3f(a)(2) was recodified at section 3g(a)(2), and that section 15(b) was recodified at
article 42.18, section 8).
        35 106 S.W.3d 91 (Tex. Ct. Crim. App. 2003) (en banc).
        36 Id. at 94-95 (quoting Polk v. State, 693 S.W.2d at 393 n.1).

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                                       No. 14-10305
affirmative finding to aid prison authorities in calculating a prisoner’s
eligibility for probation and parole.
      But this approach did not resolve all ambiguity regarding whether an
affirmative finding had been made and entered. Over time, two lines of
doctrine emerged as Texas courts addressed circumstances where section
3g(a)(2) failed to accomplish its purpose. One line deals with the “making” of
an affirmative deadly weapon finding; the other with its subsequent entry into
the judgment by the trial court. 37 The first line addresses whether a jury, as
factfinder, has made an affirmative deadly weapon finding. This line defines
the bounds of a trial judge’s authority to enter—and her discretion to not
enter—such finding in the judgment. The seminal cases are Polk v. State and
Ex parte Poe. In Polk, the Court of Criminal Appeals addressed when a trial
judge may enter a deadly weapon finding after a jury trial:
      Where the jury is the trier of fact, the trial court may not properly
      enter that they have made an affirmative finding concerning the
      defendant’s use or exhibition of a deadly weapon or firearm during
      the commission of the offense unless:

               1) the deadly weapon or firearm has been specifically
                  pled as such (using the nomenclature “deadly
                  weapon”) in the indictment (applies where the
                  verdict reads “guilty as charged in the indictment”);

               2) where not specifically pled in “1)” above as a deadly
                  weapon or firearm, the weapon pled is per se a
                  deadly weapon or a firearm; or,

               3) a special issue is submitted and answered
                  affirmatively. 38




      37   See Hooks v. State, 860 S.W.2d 110, 112-113 (Tex. Crim. App. 1993) (en banc).
      38   Polk, 693 S.W.2d at 396 (citations omitted).
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Later, in Poe, the Court of Criminal Appeals addressed the flip side of this
question: when may a trial judge withhold an affirmative deadly weapon
finding after a jury trial?
       . . . Article 42.12, § [3g(a)(2)], 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. 39

      In a separate line of doctrine, the Court of Criminal Appeals
distinguished between “how an affirmative finding is made”—which it said was
addressed squarely in Polk—and whether such finding has been entered. 40 The
seminal cases in this line are Ex parte Brooks and Hooks v. State. In Brooks,
the court held that “[a]lthough the jury’s verdict in certain circumstances may
constitute an affirmative finding being made . . . it is necessary for an
affirmative finding to be entered separately and specifically in the judgment of
the court by the trial court” to trigger section 3g(a)(2)’s bar to parole. 41 Hooks
then elaborated on this principle. There, the trial court in a bench trial found
the defendant guilty of aggravated assault with a deadly weapon but did not
enter a separate affirmative deadly weapon finding. It suspended the
defendant’s sentence and ordered him released on probation. On appeal, the
Court of Criminal Appeals recognized that the judgment recited as a factual
matter that the offense involved a deadly weapon, but it concluded that the



      39 Poe, 751 S.W.2d at 876.
      40 Hooks, 860 S.W.2d at 112-13 (emphasis in original).
      41 Ex parte Brooks, 722 S.W.2d 140, 142 (Tex. Crim. App. 1986) (citing Polk).

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                                         No. 14-10305
trial court was not barred from placing the defendant on probation, because
“the trial court did not enter ‘a separate and specific affirmative finding.’” 42
“Regardless of how the judgment may describe the offense of which defendant
was convicted,” the court held, “to preclude probation the judgment must
reflect a separate and specific entry of an affirmative finding that the
defendant used or exhibited a deadly weapon during the commission of the
felony offense.” 43
       It merits noting that in Hooks the court expressly refused to address
whether in a bench trial the trial court, having accepted a defendant’s plea of
guilty to a deadly weapon offense, has discretion to “simply decline[ ] to enter
the additional affirmative finding in the judgment.” 44 In doing so the Court left
intact Ex parte Lucke, an earlier decision by the First District Court of Appeals
in Houston, which affirmed the judgment of a trial court that had done just
that, holding:
       The fact that the offense to which appellant pleaded guilty requires
       the use of a deadly weapon does not affect [his eligibility for
       probation]. Appellant admitted his use of the weapon, so the State
       met its burden of proving all elements of the offense. The trial
       court, as trier of fact, however, simply declined to enter the
       additional affirmative finding in the judgment. 45

As a result, lower Texas appellate courts are divided on how to interpret Brooks
and Hooks as set against Polk and Poe. Some have held that Hooks “made the



       42  Hooks, 860 S.W.2d at 113-14 (emphasis in original).
       43  Id. at 114 n.7.
        44 Id. (“Because neither party assert[ed] in [its] respective brief, and the record in this

cause [did] not show, that the trial judge ‘simply declined to enter the additional affirmative
finding in the judgment’ . . . [W]e see no reason to expand our grant of review to consider that
separate question.”) (quoting Ex parte Lucke, 742 S.W.2d 818, 820 (Tex. App.—Houston (1st)
1987)).
        45 Ex parte Lucke, 742 S.W.2d at 820. Indeed, our court has cited Lucke in discussing

this Texas practice. See Sam v. I.N.S., 16 F.3d 1216, 1994 WL 57627, at *2 n.2 (5th Cir. Feb.
17, 1994) (unpublished but precedential under 5th Cir. R. 47.5.3).
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                                         No. 14-10305
entry of an affirmative finding of the use of a deadly weapon discretionary in
cases where the court is the trier of fact.” 46 Others, however, have questioned
these efforts “to assuage the apparent conflict between Poe and Hooks.” 47 The
Second Court of Appeals in Fort Worth concluded in Roots that “[a]lthough the
[Hooks] court referred to Poe and did not purport to overrule it . . . contrary to
Poe [it] implied that entering [an affirmative deadly weapon] finding need not
follow the making of such finding.” 48 In Roots, the trial court accepted the
defendant’s plea of guilty to a deadly weapon offense but did not enter a
separate affirmative finding. The state later moved for a judgment nunc pro
tunc to add the affirmative finding, characterizing its omission as a clerical
error, consistent with Poe. 49 On appeal, the court elected to follow Poe and Polk
rather than Hooks, reasoning that “Hooks does not directly answer . . . 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.” 50 It held “that
because the trial court had already found, upon entering the original judgment
of conviction, that [the defendant] had used or exhibited a deadly weapon in



       46  Dickson v. State, 988 S.W.2d 261, 263 (Tex. App.—Texarkana 1998); see McCallum
v. State, 311 S.W.3d 9, 19 (Tex. App.—San Antonio 2010) (“If Hooks has made the entry of an
affirmative finding discretionary, it has done so only in cases where the trial judge acts as
trier of fact.”); Martinez v. State, 874 S.W.2d 267, 268 (Tex. App.—Houston (14th) 1994)
(same); Campos v. State, 927 S.W.2d 232, 236 (Tex. App.—Waco 1996) (“[T]he making of an
affirmative [deadly weapon] finding [is] within the court’s discretion.”); see also Brooks v.
State, 900 S.W.2d 468, 475 (Tex. App.—Texarkana 1995) (concluding that “Hooks is limited
to bench trials”); Beck v. State, No. 01-93-01067-CR, 1994 WL 620875, at *3 (Tex. App.—
Houston Nov. 10, 1994) (“Based on the law established in Hooks and Lucke, counsel could
have reasonably believed that the court had discretion to grant probation.”).
        47 Roots v. State, 419 S.W.3d 719, 727 n.6 (Tex. App.—Fort Worth 2013); see also Loud

v. State, 329 S.W.3d 230, 240-41 (Tex. App.—Houston (14th) 2010) (Frost, J., dissenting)
(“Even though the statute in question makes no distinction between bench and jury trials,
the Texas Court of Criminal Appeals has held that, if the trial court is the fact finder . . . [it]
has discretion to not enter a deadly weapon finding in its judgment.”).
        48 Roots, 419 S.W.3d at 727.
        49 Id.
        50 Id. at 727 n.6.

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                                         No. 14-10305
committing aggravated assault, the court did not err by later . . . clerically
entering that finding through a nunc pro tunc judgment.” 51
       Nevertheless, the Court of Criminal Appeals has not overruled or walked
back Brooks or Hooks. And whatever the competing interpretations offered by
lower Texas appellate courts, for our purposes the conclusion of the Court of
Criminal Appeals on this issue is Texas law. 52 Therefore, in Texas a defendant
can stand convicted of aggravated assault with a deadly weapon even where
the trial court did not enter a separate and affirmative deadly weapon
finding. 53 This is true whether the lack of affirmative finding results from a
discretionary withholding or a clerical omission. “[T]he purpose of making an
affirmative deadly weapon finding is to assist in calculating a prisoner’s parole
eligibility date.” 54 It does not alter the underlying offense of conviction. The
absence of an affirmative finding does not amount to a finding that the offense
did not involve a deadly weapon. This comports with our prior interpretations
of these provisions of Texas law. 55




       51  Id. at 727-28.
       52  Charles v. Thaler, 629 F.3d 494, 500-01 (5th Cir. 2011).
        53 See Hooks, 860 S.W.2d at 113-14.
        54 Kinkaid v. State, 184 S.W.3d 929, 930 (Tex. App.—Waco 2006) (citing Sampson v.

State, 983 S.W.2d 842, 843 (Tex. App.—Houston (1st) 1998); see Ex parte Huskins, 176 S.W.3d
818, 821 (Tex. Crim. App. 2005) (“While a deadly-weapon finding does affect a defendant's
eligibility for probation and parole, it does not alter the range of punishment to which the
defendant is subject, or the number of years assessed. A deadly-weapon finding may affect
how the sentence is served, but it is not part of the sentence.”) (citations omitted).
        55 See Rutledge v. Thaler, 344 F. App’x 924, 926 (5th Cir. 2009) (“Contrary to the

implication in [the defendant’s] argument, the lack of a deadly weapon finding on the judgment
does not amount to a finding that he did not use one.”); Sam v. I.N.S., 16 F.3d 1216, at *2 n.2
(5th Cir. Feb. 17, 1994) (unpublished); Roach v. Collins, 983 F.2d 232, 1993 WL 4519, at *2
(unpublished) (“[T]he court does not legally make an affirmative finding unless the court
enters this finding ‘separately and specifically in the judgment of the court’ . . . In other words,
the plea in this case would have allowed the trial court properly to enter an affirmative
finding that [the defendant] used a deadly weapon, but the judge had to make that finding
separately and specifically, in the judgment, before it legally could be deemed an affirmative
finding.”) (citations omitted). We note again that although unpublished, Sam and Roach are
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    Case: 14-10305         Document: 00512945418           Page: 15     Date Filed: 02/24/2015



                                         No. 14-10305
                                               IV.
       Sanchez-Sanchez was charged with aggravated assault with a deadly
weapon under section 22.02(a)(4). 56 By accepting Sanchez-Sanchez’s plea of
guilty to the offense charged in the indictment, the state trial court convicted
him of aggravated assault with a deadly weapon. That the court did not enter
a separate and affirmative deadly weapon finding in the written judgment
casts no doubt on the fact of his conviction. Because assault attended by the
use of a deadly weapon constitutes generic aggravated assault as we have
defined it, the conviction qualifies as a predicate “crime of violence” for
enhancement under section 2L1.2. The district court did not err in applying
the enhancement. The sentence is AFFIRMED.




fully binding and precedential because they were issued before January 1, 1996. See 5th Cir.
R. 47.5.3.
        Lower federal courts have also issued interpretations consistent with ours. See Neal
v. Thaler, No. A-09-CA-830-LY, 2010 WL 2160837, at *4 (W.D. Tex. May 26, 2010) (“The
deadly weapon finding bears upon the issue of punishment, namely the availability of court-
ordered probation, as well as the issue of parole eligibility.”) (citation omitted); see also Green
v. Dretke, No. 3:03CV795B, 2005 WL 17657, at *7 (N.D. Tex. Jan. 3, 2005) (holding that
counsel’s status letter indicating “NA” as to eligibility for community supervision did not
contravene Hooks because “[a] reasonable reading of this letter is that counsel was informing
[the defendant] that community supervision was not part of the [s]tate’s plea bargain offer.”).
        56 See United States v. Guillen-Alvarez, 489 F.3d 197, 198-201 (5th Cir. 2007)

(concluding the same under a revised version of the Texas statute where, as here, the
judgment of conviction stated “aggravated assault with a deadly weapon, to wit: a knife”).
                                               15
