NO. 03
- 14
- 00547
- CR
IN THE COURT OF APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS AT AUSTIN

_____ _____________________________________________________________ NO. CR
- 12
- 0005
IN THE 428TH DISTRICT COURT OF HAYS COUNTY, TEXAS

________ __________________________________________________________ STATE OF TEXAS , APPELLANT
V.
BRYAN ROLAND CHANDLER , APPELLEE

______ ____________________________________________________________ APPELLEE ’S BRIEF

__ _____ ___________ ________________________________________________ ORAL ARGUMENT REQUESTED
LINDA ICENHAUER
- RAMIREZ ATTORNEY AT LAW 1103 NUECES AUSTIN, TEXAS 78701 TELEPHONE: 512
- 477
- 7991 FACSIMILE 512
- 477
- 3580 EMAIL: LJIR@AOL.COM SBN: 10382944

ATTORNEY FOR APPELLEE ACCEPTED 03-14-00547-CR 4853443 THIRD COURT OF APPEALS

AUSTIN, TEXAS 4/10/2015 8:14:38 PM JEFFREY D. KYLE

CLERK2 TABLE OF CONTENTS
PAGE Parties to Trial Court’s Final Judgment

................................ ...................... 3 Index of Authorities

................................ ................................ .................... 4
State ment of the Nature of the Case

................................ ........................... 6 Appellee’s Response to Point of Error Number One

................................ .. 8 The Trial Court’s Action in Granting the Motion for a Judg

ment Nunc Pro Tunc Did Not Modify, Change or Alter the Effect of the Original Judgment and Thus Was Not Prohibited By the Expiration of the Co urt’s Plenary Power. Appellee’s Response to Point of Error Number Four

................................ . 9 The Trial Court’s Action in Granting the Motion for a Judg

ment Nunc Pro Tunc Was Proper in that the Action Was Made to Correct a Clerical Error and Did Not Involve Any Additional Judicial Reasoning Appellee’s Response Point of Error Number Two

................................ ..... 15 The Law is Clear That When a Defendant Enters a Plea to an Offense Involving a Deadly Weapon That the Trial Court’s Acceptance of That Guilty Plea is Not an Affirmative Finding of a Deadly Weapon as a Matter of Law or a De Facto Affirm

ative Finding of a Deadly Weapon Appellee’s Response to Point of Error Number Three

............................... 15 Once a Trial Judge Accepts a Defendant’s Plea of Guilty to an Offense Involving a Deadly Weapon, the Trial Jud ge Still Retains Discretion on the Issue of Whether He Will Enter an Affirmati ve Finding of a Deadly Weapon Prayer for Relief

................................ ................................ ......................... 19 Certificate of Compliance

................................ ................................ ........... 20 Certificate of Service

................................ ................................ .................. 203 PARTIES TO TRIAL COURT’S FINAL JUDGMENT In accordance with T e x.R.App.Proc. 38. 1 (a), Appellee certifies that the following is a complete list of the parties and their counsel: (a) the State of Texas represented by:
Mr

. Brian Clarke Erskine , Asst. Dist. Att.

– appellate attorney Hays County Criminal District Attorney's Office Hays County Government Center 712 South Stagecoach Trail, Suite 2057 San Marcos, TX 78666
Ms

. Amy Lockhart , Asst. Dist. Att.

– trial attorney Hays County Criminal District Attorney's Office Hays County Gov ernment Center 712 South Stagecoach Trail, Suite 2057 San Marcos, TX 78666 (b) Mr. Bryan Roland Chandler , represented by : Mr. Joseph A. Turner

– trial attorney Attorney at Law 1504 West Avenue Austin, Texas 78701 Ms. S. Lynn Peach

– attorney for jud g ment nunc pro tunc Attorney at Law P.O. Box 512 San Marcos, Texas 78667 Ms. Linda Icenhauer

- Ramirez

- appellate attorney Attorney at Law 1103 Nueces Austin, Texas 787014 INDEX OF AUTHORITIES CASES PAGE Alvarez v. State , 605 S.W.2d 615, 617 ( Tex.Cr.App. 1980)

...................... 13 Banks v. State , 29 S.W.3d 642, 646 ( Tex.App.

- Houston [14 th ] 2000, pet. ref.)

................................ ................................ ................... 17
Barstow v. State , 2011 Tex.App.LEXIS 3236 (Tex.App.

- Austin 2011, no pet.)

................................ ................................ .................... 9 Chaney v. State , 494 S.W.2d 8 13, 814 n . 1 ( Tex.Cr.App. 1973)

............... 13
Ex p arte Dopps , 723 S.W.2d 669, 671 (Tex.Cr.App. 1986)

....................... 13 Ex parte McDonald , 2015 Te x. Crim. App. Unpub. LEXIS 210 (Tex.Cr.App. 2015, No. WR

- 82,533

- 01, delivered March 25, 2015)

................................ ................................ 15 Ex parte Poe , 751 S.W.2d 873, 876 ( Tex.Cr.App. 1988)

........................... 13 Hatley v. State , 206 S.W.3d 710, 718 (Tex.App.

- Texarkana 2006, no pet.)

................................ ................................ .............................. 18 Hoang v. State , 2004 Tex.App.LEXIS 5890 (Tex.App.

- Dallas 2004, no pet.)

................................ ................................ .............................. 17 Hooks v. State 860 S.W.2d 110, 113

- 114 ( Tex.Cr.App. 1993)

.................. 17
Jones v. State , 795 S.W.2d 199 ( Tex.Cr.App. 1990)

................................ .. 8 Perkins v Court of Appeals for the Third Supreme Judicial District of Texas , 738 S.W .2d 276, 285 ( Tex.Cr.App. 1987)

........................ 18 State v. Aguilera , 165 S.W.3d 695 ( Tex.Cr.App. 2005)

............................. 8
State v. Bates , 889 S.W.2d 306, 309 ( Tex.Cr.App. 1994)

.......................... 8 Wilson v. State , 677 S.W.2d 518, 521 ( Tex.Cr.App. 1984)

................ 1 35 Villarreal v. State , 590 S.W .2d 938, 939 ( Tex.Cr.App. 1979)

................... 13

STATUTES Art. 42.014, V.A.C.C.P.

................................ ................................ .............. 9 Art. 42.12, Sec 3g, V.A.C.C.P.

................................ ................................ ... 16

COURT R U LES Tex.R.App.Proc. 23.1

................................ ................................ ................. 8 Tex.R.App.Proc. 34.6

................................ ................................ ................. 10 Tex.R.App.Proc. 38.1(a)

................................ ................................ ............. 36 TO THE HONORABLE JUDGES OF SAID COURT: COMES NOW Bryan Roland Chan d ler, appellee in this cause, by and through his attorney and files this his brief on original appeal.
STATEMENT OF THE NATURE OF THE CASE Appellee was charged by in dictment in this cause on January 18,
2012

. T he indictment alleged that appel lant committed the offense of aggravated assa ult with a deadly weapon (family violence)

. (C.R. 5 )
On February 23, 2012 , appellant entered a plea of guilty to the offense of aggravated assau l t, a secon d degre e felony. ( C.R. 7

- 13 ) On February 23,
2012 , pursuant to the plea bargain agreement, the court assessed appellant’s punishmen t at ten (10 ) years imprisonment. (C.R. 14

- 15) The trial court’s certification of defendant’s right to appeal was filed on February 23, 2012. (C.R. 16

- 17) On March 23, 2014, the trial court sig n ed a nunc pro tunc j udgment of conviction corre c ting appellee’s backtime credit. (C.R. 18

- 19) On April 17, 2014, appellee filed a motion for judgment nunc pro tunc asking that the affirmative finding of a deadly weapon be deleted in accordance with the plea proceedings . (C .R. 20

- 35) A hearing was held on the motion on August 7, 2014 with the judge granting the motion for jud g ment nunc pro tunc. (R.R. I, pp. 4

- 9) On August 7, 2014, the7 assistant district attorney filed a notice of appeal . (C.R. 36

- 37, 38

- 39) The Nunc Pro Tunc Judgment of Conviction by Court

– Waiver of Jury Trial which deleted the affirmative finding of a deadly was signed by the trial court on October 2, 2014. (C.R. 49

- 50)8 APPELLEE’S REPLY TO POINT OF ERRO R NUMBER ONE THE TRIAL COURT’S ACTION IN GRANTING THE MOTION FOR A JUDGMENT NUNC PRO TUNC DID NOT MODIFY, CHANGE OR ALTER THE EFFECT OF THE ORIGINAL JUDGMENT AND THUS WAS NOT PROHIBITED BY THE EXPIRATION OF THE COURT’S PLENARY POWER.
APPELLEE’S REPLY TO POINT OF ERROR NUMBER FOUR THE TRIAL COURT’S ACTION IN GRANTING THE MOTION FOR A JUDGMENT NUNC PRO TUNC WAS PROPER IN THAT THE ACTION W AS MADE TO CORRECT A CLERICAL ERROR AND DID NOT INVOLVE ANY ADDITIONAL JUDICIAL REASONING. Absent a motion for new trial, a trial court’s plenary jurisdiction expires thirty days from the date on which the defendant was sentenced in open court. State v. Aguilera , 165 S.W.3d 695, 697 n . 4 ( Tex.Cr.App. 2005). However, a trial court retains auth ority after the expiration of the court’s plenary power to enter a jud g ment nunc pro tunc to correct clerical errors in the judgment. State v. Bates , 889 S.W.2d 306, 309 ( Tex.Cr.App. 1994); Tex.R.App.Proc. 23.1. The purpose of a judgment nunc pro tunc is to correctly reflect from the records of the court the judgment actually “rendered,” but which for some reason was not “entered” at the proper t i me. Jones v. State , 795 S.W.2d 199 ( Tex.Cr.App. 1990). Before a judgment nunc pro tunc may be entered, ther e must be proof that the proposed judgment was actually rendered at an earlier time. State v. Bates , supra
. A review of the record in this case shows that the jud g ment nunc pro9 tunc ordered by th e trial court on August 7, 2014 did c orrect a clerical error in the cause. During the hearing on August 7 th , the trial court took judicial notice of the plea forms entered in t o by appellee and the State. (R.R. I, p. 4) A review of those plea forms shows that appellee agreed to enter a plea of guilty to the offense of aggravated assault with a deadly weapon (family violence). On the first page of the plea agreement form there is a set of boxes to be checked when the part ies agree that affirmative findings are to be made by the trial court : one for an affirmative finding of a deadly weapon, one for an affirmative finding of family violence and one for an affirmative finding of a hate crime under Art. 42.014, V.A.C.C.P. None of these boxes were checked. This form was sign e d by a ppellee, the attorney for the State and the attorney for the appellee. (C.R. 6) This form alone is evidence that the agreement of the parties was that no affirmative finding of a deadly weapon was to be made. In its brief on p. 4, the State cites to portions of the plea hearing (see footnotes 23, 24, 25 )

. But appellee would point out that the reporter’s record from the plea hearing is not a part of the appellate record before the Third Court of Appeals. The transcript of the plea hearing was not

a dmitted into evidence during the August 7 th hearing and thus cannot be considered as part of the appellate record. See Barstow v. State , 201110 Tex.App.LEXIS 3236 (Tex.App.

- Austin 2011, no pet.). Furthermore, when t he State filed a Request For the Court Reporter’s Record on September 5, 2014, that request only asked that the August 7, 2014 hearing on the motion for jud g ment nunc pro tunc be included as part of the appellate record. (C.R. 40

- 41) The Reporter’s Record from that August
7 th hearing is the o nly part of the Reporter’s Record that has been filed in this cause in th e Third Court of Appeals. Thus the plea hearing is not part of the appellate record and cannot be conside r ed. Tex.R.App.Proc. 34.6.
J ust looking at the record that is properly befo re the Court of Appeals, namely the clerk’s record and the record from the hearing held on August 7, 2014, all of the evidence shows that it was the parties’ intent that there would be no affirmative finding of a deadly weapon. The State has produced no evidence showing otherwise, even though it had the opportunity at the August 7 th hearing. Clearly , the State could have called the prosecutor who handled the guilty plea to testify as to the intent of the parties, b ut for some reason chose not to call he r as a witness during the August 7 th hearing. Thus the State has failed in its burden to show that there was an agreement that the court would enter an affirmative finding of a deadly weapon. As noted a b ove, appellee’s previous lawyer, S. Lynn Peach, did attach11 a copy of the transcript from appellee’s guilty plea hearing which was held on February 23, 2012 to her motion for jud g ment nunc pro tunc . (C.R.
20

- 35) Although this transcript was not introduced into evidenc e during the August 7th hearing nor was designated as part of the appellate record by the State and thus is not part of the appellate record before the Court and should not be considered by the C o urt , appellee would assert th at if the Court of Appeals deci des to consider it, it too shows that there was no agreement of the parties that the trial court should enter an affirmative finding of a deadly weapon. This transcript from the guilty plea hearing shows that the prosecutor identified State’s Exhibit 1 as the plea bargai n agreement between the parties , offered it into evidence and then rested. (Plea Transcript, p. 3) State’s Exhibit 1 is the pl ea paperwork found in C.R. 6

- 13. Appellee then entered a plea of guilty to the offense of aggravated assault wit h a deadly weapon (family violence) and the trial court questioned him as to the typical admonishments made during a guilty plea. After going over the admonishments, the trial court acc e pted appellee’s guilty plea and found that the evidence substantiated his guilt. (Plea Transcript, p. 4

- 7) The trial court then announced the plea bargain agreement:
“THE COURT: I understand that there is a plea bargain agreement which calls for the State to dismiss Cause No.12 CR

- 12

- 0022 and they have agreed not to file p ending violations. But in Cause No. 12

- 0005 I understand that there is a recommended resolution of 10 years in the Texas Department of Criminal Justice Institutional Division, that the defendant be given credit for time served as a result of this offense .” (Plea Transcript, p. 7) The court then asked both parties if that was the i r understanding of the agreement and both the prosecuto r and appellee’s trial counsel replied affirmatively. (Plea Transcript, pp. 7

- 8) At no point did the prosecutor volunteer that the parties had agreed to an affirmative finding of a deadly weapon or object in any way to the trial court’s failure to make an affirmative finding of a deadly weapon. The trial court then announced that i t would go along with the plea bargain agreement and sent e nced appellee to ten years in prison. (Plea Transcript, p. 8) Once again, the State failed to object to the trial court’s failure to make an affirmative finding of a deadly weapon. A reading of the appellate record and also the plea transcript shows that there was no agreement by the parties that the trial court would make an affirmative finding of a deadly weap o n at appellee’s plea hearing. Thus, the court’s written judgment signed on February 23, 2012 did contain a clerical error when it included an affirmative finding of a deadly weapon. (C.R. 14

- 15) The record reflects t h at a nunc pro tunc judgment, correcting appellee’s backtime, was signed and entered on March 23, 2012.13 This nunc pro tunc judgment also erroneously contained an affirmative finding of a deadly weapon. (C.R. 18

- 19) This too was a clerical error. A jud g ment nunc pro tunc is the appropriate avenue to make a

corr ection when the court's records do not mirror the judgment th at was actually rende r ed. Alvarez v. State , 605 S.W.2d 615, 617 ( Tex.Cr.App. 1980)

. This mea ns that a trial court can fix clerical error s in the record by a nunc pro tunc order. B ut only errors that were not the result of judicial reasoning are considered clerical errors that can be fixed by a nunc pro tunc order. Ex parte Poe , 751 S.W.2d 873, 876 ( Tex.Cr.App. 1988)

. The trial court cannot, through a judgment nunc pro tunc, chan ge a court's records to reflect what it believes should have been done. Ex p arte Dopps , 723 S.W.2d 669, 671 (Tex.Cr.A pp. 1986) (citing Chaney v. State , 494 S.W.2d 813, 814 n . 1 ( Tex.Cr.App. 1973); Villarreal v. State , 590 S.W.2d 938, 939 ( Tex.Cr.App. 197 9). "Thus, before a judgment nunc pro tunc may be entered, there must be proof that the proposed judgment was actually rendered or pronounced at an earlier ti m e." Wilson v. State , 677 S.W.2d 518, 521 ( Tex.Cr.App. 1984)

. It is clear from the record of t he trial court that the inclusion of an affirmative finding of a deadly weapon in the original judgment and in the first jud g ment nunc pro tunc was a clerical error that the August 7, 201414 order for a jud g ment nunc pro tunc was correcting. The State i s assert ing that appellee was trying to modify his sentence and thus because the trial court’s action in granting the motion for judgment nunc pro tunc fell after the trial court’s plenary jurisdiction had expired, the trial court’s order was wrong. This case is clearly distinguishable from those cases cited by the State where a trial court modified a defendant’s sentence after it had lost jurisdict ion over a defendant. As shown above, the trial court’s order of August 7, 2014, approving the entry of the jud g ment nunc pro tunc was to make the judgment accurately reflect what had gone on in the trial court during the appellee’s plea proceedings. The terms of the plea bargain agreed upon by the parties did not contain an affirmative finding of a deadly weap o n, the trial court never made an affirmative finding of a deadly weapon and the judgment which reflected an affirmative finding of a deadly weapon was erroneous. Thus , the trial court acted properly in granting the motion for the entry of the jud g ment nunc pro tunc

. P oint s of

error one and four should be overruled.15 APPELLEE’S REPLY TO POINT OF ERROR NUMBER TWO THE LAW IS CLEAR THAT WHEN A DEFENDANT ENTERS A PLEA TO AN OFFENSE INVOLVING A DEADLY WEAPON THAT THE TRIAL COURT’S ACCEPTANCE OF THAT GUILTY PLEA IS NOT AN AFFIRMATIVE FINDING OF A DEADLY WEAPON AS A MATTER OF LAW OR A DE FACTO AFFIRMATIVE FINDING OF A DEADLY WEAPON.
APPELLEE’S REPL Y TO POINT OF ERROR NUMBER THREE ONCE A TRIAL JUDGE ACCEPTS A DEFENDANT’S PLEA OF GUILTY TO AN OFFENSE INVOLVING A DEADLY WEAPON, THE TRIAL JUDGE STILL RETAINS DISCRETION ON THE ISSUE OF WHETHER HE WILL ENTER AN AFFIRMATIVE FINDING OF A DEADLY WEAPON. Th e State asserts that be c ause appellee entered a plea of guilty to the offense of aggravated assault with a deadly weapon (family violence) and the trial court then found him guilty of that offense, that the acceptance of appellee’s guilty plea either was a n affirmative finding of a deadl y weapon as a matter of law or as a de facto finding. This is not the law. Recently Judge Bert Richardson of the Texas Court of Criminal Appeals wrote a concurring opinion in the case of Ex parte McDonald , 2015 Te x. Crim. App. Unpub. LEXIS 210 (Tex.Cr.App. 2015, No. WR

- 82,533

- 01, delivered March 25, 2015 ) and discussed the offense of aggravated assault: “Yet, although it is labeled an ‘aggravated’ offense, Aggravate d Assault under Section 22.02 does not fall under the list of ‘3g’ offenses in Article 42.12 of the Texas Code of Criminal Procedure unless there is an affir mative finding that a deadly weapon was used or exhibited during the commission of16 the offens e .” ( slip opinion, p. 2) Clearly a finding of guilt fo r an offense in which a deadly weapon is used is not the same as an affirmative finding of a deadly weapon as used in Art. 42.12, Sec 3g, V.A.C.C.P. The State also asserts that once a defendant is found guilty of using a deadly weapon, a trial court must make an affirmative finding of a deadly weapon. The State asserts that a trial co urt never has the discretion to not enter a deadly weapon finding in a final judgment. The State clearly does not understand the law with respect to affirmative findings o f a deadly
weapon. The law is clear that even when a defendant pleads guilty to an offense in which he or she used a deadly weapon the acceptance of the defendant’s guilty plea to an offense involving a deadly weapon is not equivalent to the court making an affirmative finding of a deadly weapon. The defendant’s guilty plea

- evidenced by his or her judicial confession

- stands a lone on the issue of guilt. The affirmative judicial finding of a deadly weapon has nothing to do with the defendant’s gu ilt. Rather , the
affirma tive finding of a deadly weapon relates solely to the issue of punishment. Specifically, the finding relates t o the ramifications of the available punishment alternatives: an affirmative finding of a deadly weapon17 eliminates court

- ordered probation as a possible punis h ment and affects parole eligibility. See Hooks v. State 860 S.W.2d 110, 113

- 114 ( Tex.Cr.App. 19 93)

. The trial court, a s the trier of fact on punishment, has the authority, but not the obligation, to make an affirmative finding of the use of a deadly weapon. Banks v. State , 29 S.W.3d 642, 646 ( Tex.App.

- Houston [14 th ] 2000, pet. ref.). In fact, i t is a common and accepted practice for a p lea bargain involving an aggravated assault where a defendant used or exhibited a deadly weapon to limit the trial court’s authority to enter a deadl y weapon finding. The net result is that the defendant is found guilty of the aggravat ed assault with a deadly weapon but the agreement is that the trial court will not enter an affirmative finding of a deadly weapon. The lack of an affirmative finding of a deadly weapon has no impact whatsoever on the finding of gui lt as to the offense of aggravated assault with a deadly weapon. Rather , the a ffirmative finding impacts only the issue of punishment. See Hoang v. State , 2004 Tex.App.LEXIS 5890 (Tex.App.

- Dallas 2004, no pet.)

. In the instant case, there is no evidence that the agreement of the parties called for the trial court to make an affirmative finding of a deadly weapon. Once again, the plea pap ers (State’s Exhibit 1) were silent as to18 an affirmative finding of a deadly weapon. A review of the transcr ipt from the plea hearing shows that both the Stat e and appellee’s attorney agreed that the plea papers accurately reflected the terms of the plea bargain agreement. During the plea hearing, the State never objected when the trial court failed to make an affirmative fin d ing of a deadly weapon. Furthermore, the State failed to produce any evidence whatsoever at the heari n g on appellee’s motion for judgment nunc pro tunc to show that the parties had agreed to the imposition of an affirmative finding of a deadly weapon. The State could very easily have brought in the prosecutor who participated in the plea hearing to testify about her understanding of the plea bargain agr eem ent. It chose not to do so. As a result, the record contains no evidence support ing the State’s position.
O nce a trial court has accepted the plea agreement, the court has a "minist erial, mandatory, and non

- discretionary duty to specifically enforce" the terms of the agreem e nt. Perkins v Court of Appeals for the Third Supreme Judicial Dist. Of Texas , 738 S.W.2d 276, 285 ( Tex.Cr.App. 1987). In performing this duty, the t rial court's "primary concern is to ascertain and give effect to the parties' inte ntions as expressed in the instrume n t." Hatley
v. State , 206 S.W.3d 710, 718 (Tex.App.

- Texarkana 2006, no pet.)

. Here it is clear that appellee entered a plea of guilty to the charged offense

–19 aggravated assault with a deadly weapon (family violence) an d the parties agreed that the trial court would make no affirmative fin ding of a deadly weapon. T he trial court followed the plea bargain agreement and did not make such a n affirmative finding of a deadly weapon . Thus the written judgment which erroneo usly reflected an affirmative finding of a deadly
weapon was properly corrected when the trial court ordered at the conclusion of the August 7, 2014 hearing that a jud g ment nunc pro tunc should be issued. P oints of error two and three should be overruled.

PR A YER Appellee respectfully requests t hat this Honorable Court overrule appellant’ s point s of error and affirm the action of the trial court. Respectfully submitted, /s/ Linda Icenhauer

- Ramirez

____________________________ __ LINDA ICENHAUER

- RAMIREZ Attorney at Law 1103 Nueces Austin, Texas 78701 (512) 477

- 7991 FAX: (512) 477

- 3580 SBN: 10382944 Email: ljir@aol.com
ATTORNEY FOR APPELL EE20 CERTIFICATE OF COMPLIANCE I hereby certify that this brief was computer generated and contains 3,782 words, as calculated by the word count function on my computer.

/s/ Linda Icenhauer

- Ramirez

____________________________ LINDA ICENHAUER

- RAMIREZ

CER TIFICATE OF SERVICE I hereby certify that a tr ue and correct co p y of Appellee ’s Bri ef on Original Appeal was e

- served to the Hays County District A t to rney’s Office on this the 10th d a y of April , 2015. /s/ Linda Icenhauer

- Ramirez

______________________________ LINDA ICENHAUER

- RAMIREZ