Guthrie-Nail, Vera Elizabeth

Opinion

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

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS

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

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

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

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

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

VERA ELIZABETH GUTHRIE-NAIL APPELLANT

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

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

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

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

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

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

i TABLE OF CONTENTS

PAGE

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

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

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

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

ISSUES ON TRIAL ON MERITS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

iv SUPPLEMENTAL PROCEDURAL HISTORY

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

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

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

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

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

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

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

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

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

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

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

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

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

Plea and Sentencing p.15)

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

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

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

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

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

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

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

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

reset this case for submission on December 2, 2015.

SUMMARY OF ARGUMENT ON STATE’S MOTION FOR REHEARING

I. This Court’s conclusion that the record was ambiguous regarding whether

the trial court intended to make or decline a deadly weapon finding does not

address a crucial piece of evidence - the trial court’s docket sheet- that prior

precedent holds should be considered. The implication that the docket sheet was

not considered merely because it was a computer printout sows confusion among

the lower courts and should be clarified.

II. While a trial court may ordinarily have discretion to decline to make a

deadly weapon finding, this discretion is sharply limited in a plea bargain. The

trial court has no discretion to add or remove conditions in a plea-bargain

agreement, and accordingly it has no discretion to decline to make a deadly

weapon finding as contemplated by the plea bargain.

III. This Court’s precedent holds that a trial court necessarily makes a

deadly weapon finding when it finds the defendant guilty as alleged in the

2 indictment if the indictment alleges a deadly weapon. Accordingly, a trial court

must expressly indicate it is using its discretion not to make such a finding or one

is made as a matter of law.

RESPONSE TO STATE’S ARGUMENT

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

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

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

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

for discretionary review.

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

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

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

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

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

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

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

record that would effect her parole status.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Weapon.”

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

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

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

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

deadly weapon finding.

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

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

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

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

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

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

There was no mistake to correct.

5 PRAYER

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

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

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

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

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

process.

Respectfully submitted,

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

6 CERTIFICATE OF SERVICE

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

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

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

Texas on this 29th day of November, 2015.

/s/ John Tatum John Tatum

CERTIFICATE OF SERVICE

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

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

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

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

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

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

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

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

8 CERTIFICATE OF COMPLIANCE

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

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

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

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

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

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

John Tatum (Printed name)

John Tatum, Attorney at Law

Emailed Copy of Petition