Court of Criminal Appeals Update: Guthrie-Nail v. State

Court of Criminal Appeals

Court of Criminal Appeals

Guthrie-Nail v. State

No. PD-0125-14

Case Summary written by Andy Linn, Staff Member.

PRESIDING JUDGE KELLER delivered the opinion of the court in which JUDGES JOHNSON, ALCALA, RICHARDSON, and NEWELL, joined.

The appellant, Guthrie-Nail, was indicted for capital murder and conspiracy to commit capital murder. The parties agreed that the State would waive the capital-murder charge in exchange for the appellant pleading guilty to the conspiracy charge for a fifty-year prison sentence. The conspiracy count of the indictment alleged that appellant, with intent to commit capital murder, a felony, agreed with Thomas Grace and Mark Bell, that they or one of them would enter the habitation and cause the death of Craig Nail, and that Bell performed an overt act in pursuance of the agreement by entering Nail’s habitation and shooting him with a firearm, causing his death. In a written confession, appellant admitted to committing the conspiracy as charged in the indictment. After questioning her about the voluntariness of her plea, the trial judge found her guilt of the conspiracy as charged in the indictment. Neither the judge nor the plea papers mentioned a deadly-weapon finding. In the original judgment, “N/A” was in the space for “Findings on Deadly Weapon.” Additionally, the record contained what seemed to be a printout of docket sheet entries that included an entry notation of “Deadly Weapon Finding 42.12.” Over two months after entry of the original judgment, the trial judge signed a judgment nunc pro tunc, which changed the “N/A” entry to “Yes, a Firearm.” The judge also added an additional special finding that she “used or exhibited a deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited.” In effect, that finding would preclude appellant’s parole eligibility until she served at lease twenty-five years of her sentence.

Appellant appealed, arguing the judgment nunc pro tunc was erroneous in that (1) it corrected judicial error rather than clerical; (2) there was no support to conclude that she used or exhibited a deadly weapon; and (3) it violated her right to due process because the judge added the deadly-weapon finding, almost three months later, without notice. The appellate court upheld the judgment “because the indictment alleged the use of a deadly weapon, because appellant pled guilty to and judicially confessed her guilt to the conspiracy offense as set forth in Count II of the indictment, and because the trial judge orally found appellant guilty ‘as set forth in the indictment in this matter.’”

Issues: (1) Whether the judge had discretion to decline making a deadly-weapon finding, even though use of a deadly weapon, in this case, was a necessary element of the offense, and (2) whether the trial judge, at the time of trial, actually made such a finding.

First, the court explained that it was beyond dispute that appellant was entitled to notice and hearing before issuance of a nunc pro tunc judgment, and that that right was violated. To answer the first issue, the court looked to Hooks v. State, 860 S.W.2d 110 (Tex. Crim. App. 1993). In that case, the judge found defendant guilty as charged in the indictment (that charge being aggravated assault with a firearm, a deadly weapon), and placed the defendant on probation. The court of appeals then held that the judge “made a de facto affirmative [deadly-weapon] finding,” and because probation was improper if a deadly-weapon finding was made, pursuant to the probation statue, it concluded the imposition of probation was void. The Court of Criminal Appeals reversed, holding that the trial judge did not enter a deadly-weapon finding; therefore, the probation statute did not bar imposition of probation on the defendant. By necessary implication based on the Hooks analysis, here, the court determined that a trial judge in a bench trial has discretion to decline to make a deadly-weapon finding even after finding the defendant guilty, although it is a necessary element of the offense.

Second, the trial judge in this case orally pronounced that the defendant was guilty of the conspiracy to commit capital murder as charged in the indictment. But the judge thereafter entered “N/A” in the original written judgment under the “Findings of a Deadly Weapon” section. To the court, this seemed to indicate the trial judge explicitly declined making a deadly-weapon finding, and was more explicit than the oral pronouncement of guilty “as set forth in the indictment.” Through a hearing, the parties could clear up why the trial judge entered the “N/A” notation, and why the docket sheet entry was made. Because the appellant had a right to notice and a hearing before issuance of the nunc pro tunc judgment, and because the record did not inconclusively show that the failure to enter a deadly-weapon finding was merely clerical, the court reversed the appellate court’s judgment and remanded to the trial court.

JUDGE RICHARDSON, concurring.

Judge Richardson agreed that the judgment nunc pro tunc was likely improper and that the case should have been remanded to the trial court for a hearing because the record did not clearly show whether the nunc pro tunc judgment was corrected to reflect what should have been done, or to reflect what was done. The latter of the two is the proper purpose of a nunc pro tunc judgment. Due to lack of clarity in the record as to the trial court judge’s intentions, Judge Richardson believed it was proper to remand the case for a hearing in order to allow appellant to be heard on the issue, and for the judge to explain why he made no mention of a deadly-weapon finding at the time of appellant’s plea.

JUDGE MEYERS, dissenting.

Judge Meyers dissented, stating that the majority’s holding “carved out an exception to the nunc pro tunc law, which has traditionally been used only to correct a clerical error.” Judge Meyers further reasoned that the majority’s holding sets precedent that deadly-weapon findings can be entered for conspiracy, which is an inchoate crime. According to Judge Meyers, the problem is that conspiracy is not a crime that necessarily involves a deadly weapon, and although “a judge may enter a deadly-weapon finding based upon a guilty plea for a crime which, by necessity, employs a deadly weapon, conspiracy is not such a crime, and the point is moot.” Here, the appellant only pled guilty to the conspiracy, not the capital murder, so a deadly-weapon finding was unwarranted. The judgment nunc pro tunc was improper because the actual judgment rendered was correct without the deadly-weapon finding, as such finding is not allowed in this type of conspiracy case.

JUDGE KEASLER, dissenting.

Judge Keasler determined the issue was whether the trial judge had discretion to withhold a deadly-weapon finding after accepting the guilty plea and finding appellant guilty of the conspiracy as charged, which expressly alleged the use of a deadly weapon. Judge Keasler further determined that the majority incorrectly approached the nunc pro tunc judgment as a fact issue, and that the majority also incorrectly concluded that trial judges have such discretion. According to Judge Keasler, a challenge to a nunc pro tunc judgment involves a question of law, not fact. Such a judgment was originally designed to be a way to fix clerical errors, and the majority’s holding converted it into a method for post-conviction litigation. Moreover, the trial judge did use the nunc pro tunc to correct a clerical error as the record “supports the conclusion that the judge made an affirmative deadly-weapon finding.”

JUDGE YEARY, dissenting.

Judge Yeary dissented, reasoning that remand at this point in the case would be a “useless task” as the State argued. Judge Yeary agreed with Judge Keasler in that the question in this case was one of law not fact, and that the trial judge actually did make an affirmative deadly-weapon finding. Moreover, the trial judge did not have discretion to find the defendant guilty and then decline to make a deadly-weapon finding.

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