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

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/10/2015 8:14:38 PM JEFFREY D. KYLE Clerk
2

TABLE OF CONTENTS

 PAGE

Parties to Trial Court’s Final Judgment......................................................3

Index of Authorities....................................................................................4

Statement 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 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 Response to Point of Error Number Four.................................9

The Trial Court’s Action in Granting the Motion for a Judgment 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 Affirmative 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 Judge Still

Retains Discretion on the Issue of Whether He Will Enter an

Affirmative Finding of a Deadly Weapon

Prayer for Relief .........................................................................................19

Certificate of Compliance...........................................................................20

Certificate of Service ..................................................................................20
3

PARTIES TO TRIAL COURT’S FINAL JUDGMENT

 In accordance with Tex.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 Government 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 judgment 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 78701
4

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 [14th]

 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 813, 814 n. 1 (Tex.Cr.App. 1973) ...............13

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

Ex parte McDonald, 2015 Tex. 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) ................ 13
5

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 RULES

Tex.R.App.Proc. 23.1 .................................................................................8

Tex.R.App.Proc. 34.6 .................................................................................10

Tex.R.App.Proc. 38.1(a).............................................................................3
6

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW Bryan Roland Chandler, 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 indictment in this cause on January 18, 

2012. The indictment alleged that appellant committed the offense of 

aggravated assault with a deadly weapon (family violence). (C.R. 5) 

On February 23, 2012, appellant entered a plea of guilty to the offense of 

aggravated assault, a second degree felony. (C.R. 7-13) On February 23, 

2012, pursuant to the plea bargain agreement, the court assessed appellant’s 

punishment 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 signed a nunc 

pro tunc judgment of conviction correcting 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 

judgment nunc pro tunc. (R.R. I, pp. 4-9) On August 7, 2014, the 
7

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 ERROR 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 WAS 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 authority after the expiration of the 

court’s plenary power to enter a judgment 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 time. 

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

nunc pro tunc may be entered, there 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 judgment nunc pro 
9

tunc ordered by the trial court on August 7, 2014 did correct a clerical error 

in the cause. During the hearing on August 7th, the trial court took judicial 

notice of the plea forms entered into 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 parties 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 signed by appellee, 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 

admitted into evidence during the August 7th hearing and thus cannot be 

considered as part of the appellate record. See Barstow v. State, 2011 
10

Tex.App.LEXIS 3236 (Tex.App.-Austin 2011, no pet.). Furthermore, 

when the 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 judgment nunc pro tunc be included as part of the 

appellate record. (C.R. 40-41) The Reporter’s Record from that August 

7th hearing is the only part of the Reporter’s Record that has been filed in 

this cause in the Third Court of Appeals. Thus the plea hearing is not part 

of the appellate record and cannot be considered. Tex.R.App.Proc. 34.6. 

Just looking at the record that is properly before 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 7th hearing. Clearly, the State could have called the 

prosecutor who handled the guilty plea to testify as to the intent of the 

parties, but for some reason chose not to call her as a witness during the 

August 7th 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 above, appellee’s previous lawyer, S. Lynn Peach, did attach 
11

a copy of the transcript from appellee’s guilty plea hearing which was held 

on February 23, 2012 to her motion for judgment nunc pro tunc. (C.R. 

20-35) Although this transcript was not introduced into evidence 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 Court, appellee would assert that if the 

Court of Appeals decides 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 bargain agreement between the 

parties, offered it into evidence and then rested. (Plea Transcript, p. 3) 

State’s Exhibit 1 is the plea paperwork found in C.R. 6-13. Appellee then 

entered a plea of guilty to the offense of aggravated assault with 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 accepted 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 pending 

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 their understanding of the 

agreement and both the prosecutor 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 it would go along with the plea bargain agreement and sentenced 

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 weapon 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 that 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 judgment nunc pro tunc is the appropriate avenue to make a 

correction when the court's records do not mirror the judgment that was 

actually rendered. Alvarez v. State, 605 S.W.2d 615, 617 (Tex.Cr.App. 

1980). This means that a trial court can fix clerical errors in the record by a 

nunc pro tunc order. But 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, change a court's records to 

reflect what it believes should have been done. Ex parte Dopps, 723 

S.W.2d 669, 671 (Tex.Cr.App. 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. 1979). "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 time." Wilson v. State, 677 S.W.2d 

518, 521 (Tex.Cr.App. 1984).

It is clear from the record of the trial court that the inclusion of an 

affirmative finding of a deadly weapon in the original judgment and in the 

first judgment nunc pro tunc was a clerical error that the August 7, 2014 
14

order for a judgment nunc pro tunc was correcting. 

The State is asserting 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 jurisdiction over a defendant. As shown above, 

the trial court’s order of August 7, 2014, approving the entry of the judgment 

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 weapon, 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 judgment nunc pro tunc. Points 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 REPLY 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.

The State asserts that because 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 an affirmative finding of a deadly 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 Tex. 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, 

Aggravated 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 affirmative finding that a 

deadly weapon was used or exhibited during the commission of 
16

the offense.” (slip opinion, p. 2)

Clearly a finding of guilt for 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 court 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 of 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 alone on the issue of guilt. The affirmative judicial finding of a 

deadly weapon has nothing to do with the defendant’s guilt. Rather, the 

affirmative finding of a deadly weapon relates solely to the issue of 

punishment. Specifically, the finding relates to the ramifications of the 

available punishment alternatives: an affirmative finding of a deadly weapon 
17

eliminates court-ordered probation as a possible punishment and affects

parole eligibility. See Hooks v. State 860 S.W.2d 110, 113-114 

(Tex.Cr.App. 1993). The trial court, as 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 [14th] 2000, pet. ref.).

In fact, it is a common and accepted practice for a plea bargain 

involving an aggravated assault where a defendant used or exhibited a 

deadly weapon to limit the trial court’s authority to enter a deadly weapon 

finding. The net result is that the defendant is found guilty of the 

aggravated 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 guilt as to the offense of aggravated assault with a deadly 

weapon. Rather, the affirmative 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 papers (State’s Exhibit 1) were silent as to 
18

an affirmative finding of a deadly weapon. A review of the transcript 

from the plea hearing shows that both the State 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 finding of a deadly weapon. 

Furthermore, the State failed to produce any evidence whatsoever at the 

hearing 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 agreement. It chose not to do so. As a result, the record 

contains no evidence supporting the State’s position.

Once a trial court has accepted the plea agreement, the court has a 

"ministerial, mandatory, and non-discretionary duty to specifically enforce"

the terms of the agreement. 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 trial court's "primary concern is to ascertain and 

give effect to the parties' intentions as expressed in the instrument." 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) and the parties 

agreed that the trial court would make no affirmative finding of a deadly 

weapon. The trial court followed the plea bargain agreement and did not 

make such an affirmative finding of a deadly weapon. Thus the written 

judgment which erroneously 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 judgment nunc pro tunc

should be issued. Points of error two and three should be overruled.

PRAYER

Appellee respectfully requests that this Honorable Court overrule 

appellant’s points 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 APPELLEE
20

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

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellee’s Brief on 

Original Appeal was e-served to the Hays County District Attorney’s Office 

on this the 10th day of April, 2015.

/s/ Linda Icenhauer-Ramirez

______________________________

 LINDA ICENHAUER-RAMIREZ