Ex parte Minott

• Decision Date: 08 July 1998
• Docket Number: No. 72877,72877
• Citation: 972 S.W.2d 760
• Parties: Ex parte Lynford Bozzle MINOTT.
• Court: Texas Court of Criminal Appeals

Page 760

972 S.W.2d 760

Ex parte Lynford Bozzle MINOTT.

No. 72877.

Court of Criminal Appeals of Texas.

July 8, 1998.

Gerald Fry, Houston, for appellant.

John Harrity, Assistant District Attorney, Richmond, Matthew Paul, Stat's Attorney, Austin, for State.

OPINION

MANSFIELD, Judge, delivered the opinion of the Court, in which McCORMICK, Presiding Judge, and KELLER, PRICE, HOLLAND and WOMACK, Judges, joined.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of the offense of aggravated possession of a controlled substance and the punishment was assessed at confinement for five years in the Texas Department of Criminal Justice--Institutional Division. No direct appeal was taken.

In his present application, Applicant contends that he was not given notice of the State's intent to seek an affirmative finding of a deadly weapon under Art 42.12, § 3g (a)(2).

According to the record, Applicant pleaded guilty to the offense of aggravated possession of a controlled substance in exchange for a sentence of five years. The record contains an affidavit from the assistant district attorney, Mr. John J. Harrity, which states:

The petitioner was informed of this during plea negotiations, as well as during the State's recommendation to the Court at the time of the plea, that an affirmative finding that a deadly weapon was used by Petitioner would be made at the time he pled guilty before the Court. The State's recommendation was on each of Petitioner's cases was for Five years in I.D.T.D.C.J. to run concurrent with an affirmative finding of a deadly weapon, or twenty years in the instant case without an affirmative finding of a deadly weapon, non-aggravated. The Petitioner accepted the offer of five years with an affirmative finding of a deadly weapon, but only wanted to plea on one case. The State agreed. The State's file was open to Petitioner's attorney and he viewed the file. Included in the file was the offense report in this case.

Trial counsel filed an affidavit which states:

I was the attorney of record for Lynford Minot in Case No. 25518. I was the only attorney that Mr. Minott [sic] had representing him. I negotiated the plea with the District Attorney's Office. I don't remember an affirmative finding of a deadly weapon to be a part of the plea agreement. I have further reviewed my file and find no notations that reflect that an affirmative finding was part of a plea agreement. I never received notice in any form that the State would seek an affirmative finding of a deadly weapon. I reviewed my file and found no notations of any kind that the State would seek an affirmative finding of a deadly weapon.

Even though the accounts forwarded by trial counsel and the assistant district attorney differ, the trial court is in the best position to determine credibility. While this Court is not bound by the trial court's findings, we should follow them where they are supported by the record. Ex parte Brandley, 781 S.W.2d 886 (Tex.Cr.App.1989); Ex parte Adams 768 S.W.2d 281 (Tex.Cr.App.1989).

The trial court made a finding of fact, based upon the State's affidavit, that two options were offered to the defendant by the State during the plea bargain process, one with a finding of a deadly weapon and one without. The trial court further found that Applicant accepted the offer which included a finding of the use of a deadly weapon, but with a much lesser sentence to be served in the Institutional Division. However, the trial court made the following findings: prior to the plea being taken by the court there was no written notice provided to Applicant that a deadly weapon finding was being sought by the State; the indictment made no reference to the use of a deadly weapon; no pleading was filed with the court notifying Applicant that the State was seeking a finding on the use of a deadly weapon. The trial court made no recommendation as to whether or not relief should be granted.

We have previously held that written notice of the intent to seek an affirmative finding of the use of a deadly weapon must be filed with the trial court. Luken v. State, 780 S.W.2d 264 (Tex.Cr.App.1989). Prior to our decision in Luken, we held that a defendant is entitled to notice that the State would pursue an affirmative finding that a deadly weapon was used or exhibited during commission of an offense. Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987). This holding was later modified when we held a count in an indictment containing a deadly weapon allegation sufficed to give a defendant notice of the State's intent to pursue entry of a deadly weapon finding. Ex parte Beck, 769 S.W.2d 525 (Tex.Cr.App.1989). Additionally, we later held that a defendant is entitled to written notice that the State will seek an affirmative finding that a deadly weapon was used during commission of the charged crime, but such notice need not be contained in the indictment under which the defendant is ultimately tried. A defendant is simply entitled to written notice in some form that the use of a deadly weapon will be a fact issue at trial. Brooks v. State, 847 S.W.2d 247 (Tex.Cr.App.1993). In the instant case, however, no written notice of any kind given to Applicant and no reference to a deadly weapon was made in his indictment. Therefore, the question before us is whether Applicant's affirmative actions in knowingly and voluntarily entering into a plea agreement, which included a condition that an affirmative finding of a deadly weapon be contained in the judgment, waived the requirement that the State provide written notice it will pursue such a finding.

This Court recently held that a defendant's decision not to request a severance, and to accept the imposition of consecutive sentences imposed in a single criminal action for two offenses arising out of the same criminal episode, were valid waivers of his right to concurrent sentences. Ex parte McJunkins, 954 S.W.2d 39 (Tex.Cr.App.1997). In McJunkins, we employed a threepart test set out in Ex parte Sims, 868 S.W.2d 803 (Tex.Cr.App.1993). The Sims opinion properly noted the basic division of legal rules into (1) absolute requirements and prohibitions which cannot be waived or forfeited, (2) rights of litigants that must be implemented unless affirmatively waived, and (3) rights of litigants that are implemented on request but are forfeited by a failure to invoke them. Using the aforementioned test, this Court found in McJunkins the requirement of Texas Penal Code Section 3.03, that multiple sentences run concurrently if they arise out of the same criminal episode and are imposed in a single criminal action, is one which must be implemented unless affirmatively waived.

Unlike the situation confronted in McJunkins, there is no statute which requires written notification that an affirmative finding will be sought by the State. Furthermore, our opinions dealt with whether due course of law requires...