In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                             __________________

                             NO. 09-16-00455-CR
                             __________________


                       IN RE TIMOTHY LYNN TATE

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                           Original Proceeding
             252nd District Court of Jefferson County, Texas
                        Trial Cause No. 12-15044
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                         MEMORANDUM OPINION

      Timothy Lynn Tate filed a petition for mandamus complaining the trial court

erred by including an affirmative deadly-weapon finding in the final judgment

convicting him of aggravated assault. Tate suggests that the sentence he received

on his conviction has been adversely affected by the deadly-weapon finding, and

that his sentence was unauthorized. According to Tate, the charge did not ask that

the jury make a deadly-weapon finding, and the trial should not have included that




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finding in its judgment. Tate asks that this Court issue a writ of mandamus to

compel the trial judge to remove the deadly-weapon finding from the judgment. 1

      To include a deadly-weapon finding in a final judgment following the trial

of a criminal case, the trier of fact is first required to make an “affirmative finding”

that the defendant “used or exhibited [a deadly weapon] during the commission of

a felony offense or during immediate flight therefrom[.]” Tex. Code Crim. Proc.

Ann. art. 42.12, § 3g (a)(2) (West Supp. 2016).2 However, in his direct appeal

from the judgment following his conviction for aggravated assault, Tate did not

raise any issues that complained about the finding in the judgment that he had used

a deadly weapon. See Tate v. State, No. 01-13-00290-CR, 2014 Tex. App. LEXIS

4457 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (not designated for

publication) (raising four issues in his appeal from his conviction for aggravated

assault, but none complained about the deadly-weapon finding). Nonetheless,

Tate’s failure to complain about the trial court’s alleged error on direct appeal does

not mean that the appellate remedy available to him was inadequate. See generally

      1
        Tate asserts that he raised the issue with the trial court by filing a motion
for entry of a judgment nunc pro tunc.
      2
         Although the Legislature amended article 42.12 after Tate committed the
assault that was at issue in his trial, no changes to article 42.12 are pertinent to the
issues that he has raised in his petition. Therefore, we cite the current version of the
statute.
                                           2
Duran v. State, 492 S.W.3d 741, 749 (Tex. Crim. App. 2016) (reforming the

judgment in a direct appeal when a deadly-weapon finding could not necessarily be

inferred from the jury’s finding that the defendant burglarized a habitation); Brister

v. State, 449 S.W.3d 490 (Tex. Crim. App. 2014) (considering in the defendant’s

direct appeal the State’s argument that the Court of Appeals had erred by striking a

deadly-weapon finding for lack of evidence). In some cases, depending on the

language in the indictment, the evidence in the trial, and the charge, it is possible

that a trial court can infer from a finding on aggravated assault that the defendant

used a deadly weapon in committing the assault. See Duran, 492 S.W.3d at 746

(noting the three different ways that a court can determine that the trier of fact

actually made an affirmative deadly-weapon finding even though no express

deadly-weapon question was submitted); Crumpton v. State, 301 S.W.3d 663, 665

(Tex. Crim. App. 2009) (holding that under the indictment, evidence, and the

charge, the jury’s determination that the defendant used a deadly weapon during

the commission of a criminally negligent homicide could be inferred from the

jury’s finding that the defendant was guilty of committing criminally negligent

homicide).

      A petitioner who seeks mandamus relief is required to demonstrate that (1)

the trial court failed to perform a ministerial duty and (2) the relator has no other

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adequate remedy at law. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34
S.W.3d 924, 927 (Tex. Crim. App. 2001). In the proceeding now before us, Tate

has not provided all of the documents to the Court that are required by Rule

52.3(k)(1) of the Texas Rules of Appellate Procedure. See Tex. R. App. P.

52.3(k)(1). Moreover, it is possible that the trial court did not commit an error by

including a deadly-weapon finding in its judgment. See Crumpton, 301 S.W.3d at

664 (concluding that the trial court properly included a deadly-weapon finding in

its judgment where the jury necessarily found that the defendant used a deadly

weapon in committing homicide). Whether the trial record allowed the trial court

to deduce that the jury had found that Tate used a deadly weapon when committing

the assault are matters that may be arguable. Consequently, the trial court’s error, if

any, is not one that necessarily concerns a non-ministerial judicial act. See In re

Brown, 343 S.W.3d 803, 805 (Tex. Crim. App. 2011) (explaining that post-

conviction remedies are unavailable where the trial court is performing a judicial

rather than a ministerial function); Simon v. Levario, 306 S.W.3d 318, 321 (Tex.

Crim. App. 2009) (explaining that “it is improper to order a trial court to exercise

its judicial (as opposed to its ministerial) function in a particular way unless the

relator ‘has a clear right to the relief sought[]’”).



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      We hold that Tate’s petition fails to demonstrate that he has a clear right to

an order requiring the trial court to eliminate the deadly-weapon finding from its

judgment. See State ex rel. Hill, 34 S.W.3d at 927. Because Tate has failed to

establish that he is entitled to a writ of mandamus, his petition is denied.

      PETITION DENIED.

                                                            PER CURIAM

Submitted on December 27, 2016
Opinion Delivered December 28, 2016
Do Not Publish


Before McKeithen, C.J., Horton and Johnson, JJ.




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