Tonya Bowman v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00322-CR
__________________

TONYA BOWMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F21-36546-0
__________________________________________________________________

MEMORANDUM OPINION

Tonya Bowman (“Bowman,” “Defendant,” or “Appellant”) appeals her

conviction for intoxication manslaughter, a second-degree felony. See Tex. Penal

Code Ann. § 49.08. On July 5, 2020, shortly after midnight, Bowman was driving

her Jeep heading home when she stopped and pulled over in a gas station parking lot

on Highway 90. Later, she pulled out of the parking lot and back onto Highway 90.

When she pulled out, her Jeep collided with a Toyota Camry that was traveling on

Highway 90. There were three occupants in the Camry, a driver, a passenger in the

1
front seat, and a passenger in the backseat. The passenger in the back seat of the

Camry was killed in the collision. The officers who responded to the accident

determined Bowman failed to yield the right of way to the Camry. The officers at

the scene of the accident interviewed Bowman and testified at trial they could smell

alcohol on Bowman. They also testified that they obtained a warrant for a blood

draw from Bowman. Bowman was taken into custody and later charged with

intoxication manslaughter. The blood alcohol test result which was also entered into

evidence during trial showed Bowman had a blood alcohol concentration of .104

which is over the .08 statutory limit.1

A grand jury indicted Bowman for

operat[ing] a motor vehicle in a public place while [Bowman] was
intoxicated by not having the normal use of her mental and physical
faculties by reason of the introduction of alcohol, a controlled
substance, a drug, a dangerous drug, and a combination of at least two
of these substances into her body, and by reason of such intoxication,
caus[ing] the death of . . . Alexandria Esquivel, by accident and mistake,
to-wit: by failing to yield the right of way to Alexandria Esquivel and
striking an automobile occupied by Alexandria Esquivel[.]

Bowman initially pleaded “not guilty” to the offense. After several days of a jury

trial, and upon the conclusion of the presentation of evidence, but prior to the

submission of the case to the jury, Bowman changed her plea to “guilty” pursuant to

a plea agreement. In one appellate issue, Bowman argues her plea was involuntary,

1
See Tex. Penal Code Ann. § 49.01(2)(B).
2
requiring the reversal of her conviction. According to Bowman, she agreed to plead

guilty “with the specific understanding that the State would not seek or argue for an

affirmative finding of a deadly weapon.” Bowman alleges that she was induced into

pleading guilty based on misleading information that the State would not seek or

argue for an affirmative finding of a deadly weapon, and that she otherwise would

not have pleaded guilty. We affirm.

Plea Negotiations and Text Messages

On May 30, 2024, after the trial court had ruled that the defense could not use

its two expert witnesses (one who was a forensic consultant and toxicologist and one

who was an accident reconstructionist who planned to testify that the excessive

speed of the other vehicle caused or contributed to the accident), the parties rested

and finished discussions about the jury charge, and the trial court took a recess.

According to evidence in the appellate record,2 that same day Defense Counsel 23

and Prosecutor 2 exchanged the following text messages about a plea agreement:

[Defense Counsel 2:] Call me[.] We will take the deal for the cap of 10
and waive appeal. I will put on the record that we are entering plea with
understanding that punishment range is probation all the way up to 10
years TDC. We will reset for a PSI in the standard time. Sound good?

2
Photographs from Prosecutor 2’s phone of the text messages were admitted
for purposes of the motion for new trial.
3
The appellate record establishes that the prosecution and defense each had a
lead counsel and a co-counsel for the case. We use “Prosecutor 1” and “Defense
Counsel 1” to designate lead counsel for the parties and “Prosecutor 2” and “Defense
Counsel 2” to designate co-counsel for the parties.
3
[Prosecutor 2:] We are going to have to eat a huge sh[#$] sandwich with
the family for the cap of 10. So if you put [Prosecutor 1] in the spot of
having to concede anything on the deadly weapon deal he is going to
push back. That’s my two Pennie’s

[Defense Counsel 2:] We won’t mention D[eadly ]W[eapon][.] Cause
the more i think of it the judge can’t do probation with a DW so
obviously it wasn’t part of the deal since we are entering plea and
asking for probation and resetting for PSI

[Prosecutor 2:] True[.] So y’all would have to get judge to give deferred
as the only probation option

[Defense Counsel 2:] Statute says no deferred on intox[.] Unless you
want to plea to manslaughter

[Prosecutor 2:] Yeah you’re right. [Prosecutor 1] isn’t gonna go for that

[Defense Counsel 2:] Judge can’t do deferred but he can do probation[.]
And on probation she has to do a minimum of 4 months jail per
statute[.] [Judge Stevens] would give 6 but law says 4 is minimum

[Prosecutor 2:] Yeah. Can’t do that though. Just gone too far to cut bait
on intox manslaughter[.] Does that change things for y’all or do you
still want to try and do the cap

[Defense Counsel 2:] Yes we will do cap on intox manslaughter for 10
years and i will put on record with client that she is entering plea with
understanding that probation to 10 years in prison is option and we are
resetting for PSI to help judge on deciding probation vs prison[.] You
don’t need to say anything I’m just covering bases with client on record

[Prosecutor 2:] But if [Judge Stevens] hears it he will make DW finding.

[Defense Counsel 2:] Well he might and we can argue that point at that
time[.] I really think this stays with Thorne since he heard trial

[Prosecutor 2:] Ok. Make sure and cover your butt with your client on
that because I have a feeling [Judge Stevens] would hear it

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[Defense Counsel 2:] Understood

[Prosecutor 2:] I got to take my a[#$] chewing with the family before
we get it all done

Entry of Guilty Plea

Later that same day upon returning to the courtroom, the parties notified the

trial court that Bowman wanted to change her plea to “guilty,” and the trial judge

specifically asked the Defendant about her plea as follows:

THE COURT: All right. The Court is back in session in Cause No. 21-
36546, State of Texas versus Tonya Bowman. The Court has been
advised by counsel representing Ms. Bowman that Ms. Bowman wishes
to change her plea. Is the State ready to go forward with that?

[Prosecutor 1]: Yes, we are, Judge.

THE COURT: All right. Is the defense?

[Defense Counsel 2]: Yes, Your Honor.

THE COURT: All right. Would you like to come forward with Ms.
Bowman?

[Defense Counsel 2]: We can, Your Honor.

THE COURT: She needs to be sworn.

(DEFENDANT SWORN BY THE CLERK.)

THE COURT: All right. Ms. Bowman, do you waive the formal
reading of the indictment?

THE DEFENDANT: Yes.

THE COURT: All right. The indictment, ma’am, alleges the second
degree felony as you know alleging that on or about July the 5th of
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2020, in Jefferson County, Texas, that you did then and there operate a
motor vehicle in a public place and that you were intoxicated and not
having normal use of mental or physical faculties by reason of alcohol
– introduction of alcohol, a controlled substance, a drug, a dangerous
drug, or a combination of substances into your body, and by reason of
that intoxication caused the death of another, namely, Alexandria
Esquivel, by accident and mistake by failing to yield the right-of-way
and striking the automobile occupied by the deceased.
How do you plead?

THE DEFENDANT: Guilty.

THE COURT: Ma’am, are you pleading guilty freely and - - are you
pleading guilty freely and voluntarily and only because you are guilty?

THE DEFENDANT: Yes.

THE COURT: All right. The State tendered State’s Exhibit 1. Is that
correct?

[Prosecutor 1]: Yes, Your Honor.

[Defense Counsel 2]: No objection.

THE COURT: All right. It’s admitted.
(STATE’S EXHIBIT NO. 1 ADMITTED.)

THE COURT: Ms. Bowman, the paperwork I have before me appears
to have your signature. Is that your signature on all of this paperwork?

THE DEFENDANT: Yes.

THE COURT: Ma’am, did you understand everything contained in the
paperwork as your attorney - - your attorneys explained all of these
matters to you?

THE DEFENDANT: Yes.

THE COURT: Did you further understand that in return for your plea
of guilty the State was going to - - and your attorney were going to
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request a presentence investigation and that the State would not
recommend anything higher than punishment at ten years in the Texas
Department of Corrections? In other words, there’s a ceiling on
whatever their recommendation is. Of course, your recommendation
and your attorneys’ recommendation will be something different and
will be also featured in the presentence report.
You’ve got excellent attorneys. I know they’ve explained to you
this process. But it’s your opportunity to talk with the probation officer,
give your background, your life, what you’re looking forward to, and,
of course, get recommendations . . . from others that are involved in
your life.
And I believe we are scheduled to come back for that on about
July the 15th of 2024 at 9:00 a.m. So, you do remember that the
paperwork does reflect that. Is that correct?

THE DEFENDANT: Yes.

THE COURT: Is there any evidence [Defense Counsel 2], that Ms.
Bowman is incompetent?

[Defense Counsel 2]: No, Your Honor.

THE COURT: All right. And, Ms. Bowman, are you a citizen of the
United States?

THE DEFENDANT: Yes.

THE COURT: . . . I will accept your plea at this time, but I’m not going
to make any findings of anything at this time. We’ll do the presentence
report and - -

[Defense Counsel 2]: And, Judge, can I put one thing on the record
briefly?
...

THE COURT: Yes.

[Defense Counsel 2]: . . . Tonya, we were about to argue your case.
We’ve been here two weeks now, and the State revised their previous
offer in this case to a ten-year cap which means that you could get
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anywhere from probation up to ten years in prison. And with that
revision and the rulings that the Judge made in this case and the fact
that we’re about to argue your case, you’ve made the voluntary decision
freely and voluntarily to accept the deal from the State and enter a plea
agreement for a binding cap of ten years?

THE DEFENDANT: Yes.

[Defense Counsel 2]: All right. And that was your decision that you
made freely and voluntarily?

THE DEFENDANT: Yes.

State’s Exhibit 1 included documents titled “Written Plea Admonishments” and

“Agreed Punishment Recommendation[.]” The document titled “Written Plea

Admonishments” is dated May 30, 2024, and it is signed by Bowman in multiple

sections. It includes admonishments stating Bowman was charged with the second-

degree felony offense of “intoxication manslaughter with a vehicle” and, if

convicted, she would face the range of punishment of “[a] term of not more than 20

years or less than 2 years in the Institutional Division of the Texas Department of

Criminal Justice[]” and “a fine may be assessed not to exceed $10,000.” There is a

section of the “Written Plea Admonishments” that is styled, “Stipulations, Waivers

& Judicial Admission[,]” wherein Bowman signed her name and affirms “I

understand the foregoing admonishments from the Court and I am aware of the

consequences of my plea.” The “Agreed Punishment Recommendation” dated May

30, 2024, also signed by Bowman, states that “[t]he defendant’s punishment will not

exceed a cap of 10 years in the Institutional Division.”
8
The parties returned to the trial court for a sentencing hearing as scheduled on

July 15, 2024. According to testimony in the appellate record, prior to the sentencing

hearing, the prosecution and defense counsel met in the trial judge’s chambers, and

the trial judge at some point commented that he knew that the State was going to be

asking for a deadly weapon finding and the trial court stated that he was aware of

cases that allowed him to make a deadly weapon finding without the State’s giving

notice it was seeking a deadly weapon finding.

The record of the sentencing hearing shows that the trial court called the case,

received the pre-sentencing report, and then asked the State if it had any motions to

make, and the State then requested that the trial court make an affirmative finding

that a deadly weapon was used in the commission of the offense. The defense

opposed the request stating:

[Defense Counsel 2]: . . . There was nothing in the plea in this case as
to a deadly weapon. That is completely omitted. If the State - - if that
was something the State was trying to seek, they could have done that
then. It increases the punishment and changes the parole law in this
case, Judge. So, we would argue that it is outside of the parameters of .
. . the plea agreement.
Also, Judge, . . . this is a unique situation where the Court had
already . . . prepared the jury charge, and there was no special issue in
the jury charge as to a deadly weapon. So, this was not something that
the State - - that the defense anticipated.
In addition, no notice has been filed by the State as to a deadly
weapon in this case. At any point in the four years that this case has
been pending, nothing has been filed to give notice of an intent to ask
for an affirmative deadly weapon finding.
In addition, case law is very clear that the best way to give notice
of a deadly weapon in a case is to put it in the indictment. I’ve read the
9
indictment, Judge. I have it right here in front of me. As the Court will
see, there is nothing in the indictment that says anything about a deadly
weapon. And that is very easy for the State to add from the beginning,
and that is completely omitted from the indictment.
And I do believe that since we have argued before in this case
about decisions that Judge [] has made . . . that is controlling in this case
. . . State [v.] Joseph Duncan . . . Cause No. 1933323.
In that case, Judge [] after a plea in a similar case involving a - -
that was a hit-and-run but also alleged an intoxication, I believe, with a
death in a motor vehicle. After the plea, Judge Stevens decided to add
the deadly weapon finding. That case was appealed; and prior to the
Appellate [] Court making a decision, Judge Stevens decided to reverse
himself after seeing the case law that was presented in that case by
[defense counsel in that case] and ended up removing the deadly
weapon finding because it was not something that had been pled in the
plea agreement. It was not something that the State had given any notice
of, and it was not contained in the indictment.
So, for those reasons, Judge, we are asking that the Court please
deny adding the affirmative weapon. And if the Court was to add that,
we do believe that that would give us grounds for an appeal in this case.

Prosecutor 1 responded that defense counsel was incorrect that the deadly

weapon finding increases the sentence because it does not change the two-to-twenty-

year range for the sentence for the charged offense. The prosecutor also argued that

the indictment put Bowman on notice that the State could seek a deadly weapon

finding because the indictment alleged the manner and means of how the death

occurred was with a vehicle. He further argued that caselaw supports the State’s

request for a deadly weapon finding in this context and that the prosecutor has “not

come across anything that suggests that anything else is more appropriate than an

affirmative finding.”

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Defense Counsel 2 argued that he and Bowman understood the plea agreement

terms were “probation up to 10 years[]” and the guilty plea was with the

understanding of that punishment range. Defense Counsel 2 argued that when the

trial court makes an affirmative finding of a deadly weapon Bowman becomes

ineligible for probation. Defense Counsel 2 stated if the defense ever thought a

deadly weapon finding would be applied in this case, then that would have been

something discussed “during the plea.” He also asserted that the pre-sentencing

investigation indicates that probation would be an option. According to Defense

Counsel 2, the affirmative finding of a deadly weapon “completely changes the

punishment range” and Bowman “was under the impression that by entering a plea

[of guilty], she had the opportunity to beg [the trial court] for probation and she could

get up to ten years[]” so adding a deadly weapon finding would make her plea of

guilty involuntary. Defense Counsel 2 argued the defense did not ever receive

written notice that the use of a deadly weapon was an issue at the time of the trial,

that a motor vehicle is not a deadly weapon per se, that there was no language in the

indictment that says the motor vehicle in its use or intended use was capable of

causing death or serious bodily injury, and that the State in this case had the last four

years to file notice of a deadly weapon but it did not.

Prosecutor 1 argued that an affirmative finding of a deadly weapon is proper

under article 42A.054(b)(1) of the Texas Code of Criminal Procedure. The

11
prosecutor asserted that the indictment provided more than sufficient notice, and the

State argued that defense counsel’s comments at the time of the plea about the range

being “probation up to 10 years” does not “hamstring” the trial court because the

trial court gets to decide whether an affirmative finding applies. Just because

Bowman may have desired to receive probation does not mean she was not properly

admonished, and pre-sentence investigations always give the probation options

because at the time the plea was announced and agreed to the trial court has not

decided whether to enter an affirmative finding, and the pre-sentence investigations

provide all the options to the court.

Defense Counsel 2 then asked the trial court to go ahead and “make the finding

now because it will change how I proceed in punishment[]” and argued that if the

trial court makes the affirmative finding and probation is not an option, “then all

we’re doing is arguing the 2 to 10 punishment.” The trial court made a deadly

weapon finding, and defense counsel objected. The defense stated that, because

probation was not an option and putting on witnesses or evidence would not “be

fruitful at this point[,]” defense counsel would only be making an argument as to the

range of punishment. The defense asked for a punishment of “two years or

something toward the lower end of the punishment range[.]” The prosecutor argued

that a ten-year sentence was appropriate.

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The trial court sentenced Bowman to ten years of confinement and entered a

finding that Bowman used or exhibited a deadly weapon—an automobile—in the

commission of the crime.

Motion for New Trial

Bowman, through her newly appointed appellate counsel, filed Defendant’s

Motion for a New Trial and Motion in Arrest of Judgment (the Motion). In the

Motion, Bowman argued that her plea was involuntary and based upon the State’s

representation that the State would not seek a deadly weapon finding if Bowman

pleaded guilty, and that, because this representation induced her guilty plea, the trial

court should grant a new trial. In support of the motion, Bowman filed her sworn

affidavit and the sworn affidavit of one of her attorneys.

Defense Counsel 1 states in his affidavit which is attached to the Motion for

a New Trial, in relevant part:

Tonya Bowman was indicted for intoxication manslaughter in
August of 2020. The indictment alleges, by accident or mistake, that
Bowman caused the death of another using a vehicle, while intoxicated.
The indictment does not contain language regarding a deadly weapon.
The State never filed a notice of intent to seek a deadly weapon finding.
I was retained as co-counsel with [Defense Counsel 2] to
represent Bowman in September of 2022. I reviewed all of the evidence
in the case and began preparing the matter for trial. In the years leading
up to the trial, the State offered a plea deal of fifteen years in prison
along with an affirmative finding of a deadly weapon. We declined the
offer and continued to prepare for trial. In the weeks leading up to trial,
the State came back to us with a reduced offer of twelve years in prison
and a deadly weapon finding. Again, our client declined the proposal,
in great part, because of the deadly weapon finding.
13
On May 20, 2024, the Criminal District Court assigned [] the
Case to the Jefferson County Drug Court for trial and we beg[a]n
picking a jury, after, again, rejecting the twelve year offer from the
State. It was our belief, based on the evidence that, even if a jury
convicted Bowman, they would give serious consideration to probating
any sentence in her case. The trial commenced over the better part of
two weeks and it was our position that the case and evidence were
generally favorable to us. But, after the State rested their case, the Judge
excluded both of our expert witnesses in the case, something that had
never happened to me during the course of my career.
In the wake of that decision, the State and my co-counsel,
[Defense Counsel 2], began behind-the-scenes negotiations for a
potential resolution with a plea. I was primarily focused on preparing
for closing argument and potential objections to the jury charge. During
the negotiations, [Defense Counsel 2] specifically informed[] counsel
for the State that any deal that involved [a]n affirmative finding [of] the
deadly weapon would be a non-starter for our client because we could
not obtain probation from the Court. [Defense Counsel 2] and counsel
for the State agreed to a cap of 10 years in prison and no assertation of
a deadly weapon. And, with that assurance Ms. Bowman elected to
plead guilty and allow the Judge to sentence her after the completion of
a presentence report.
On July 15, 2024, we returned for sentencing, prepared to make
a compelling case for the Court to give Ms. Bowman probation rather
than prison. Instead, we were greeted with an active effort by the State
to secure a deadly weapon finding prior to any evidence about the
sentencing itself. [Defense Counsel 2] objected to this being outside the
bounds of the plea agreement and to the lack of notice of intent to secure
the affirmative finding. These objections were overruled. The Court
made the deadly weapon finding before proceeding to hear any
evidence in support of probation, effectively nullifying any real
evidence or arguments from Bowman at sentencing.
While I am aware that a Judge may find a deadly weapon was
used in any case involving a death, I am also aware that the law and the
case law consistently reiterate that he need not do so and it certainly [is]
not automatic. Were it automatic, a vehicle would be a per se deadly
weapon like a gun. It is not. As such, it was my belief that the State
would not be pursuing a deadly weapon finding and the lack of mention
of it would likely result in the Court not finding it sua sponte and, thus,
giving Bowman a decent chance at probation. Had I known that this
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was not the State’s position, I would have more strongly opposed any
plea deal.
Moreover, though, I believe Bowman’s plea was misled and
involuntary. Had she known that the State would actively seek a deadly
weapon finding, she would have almost certainly rejected the plea
proposal, as she did the first two, and would have proceeded to closing
argument, deliberation, and a determination by the jury.

In her affidavit, Bowman states in pertinent part as follows:

I was indicted for intoxication manslaughter in Jefferson County,
Texas. I hired [Defense Counsel 2] and [Defense Counsel 1] to be my
lawyers in the case. I rejected several plea offers from the State prior to
trial because they involved significant time in prison and a deadly
weapon finding that would impact my ability to make parole.
We went to trial in May, 2024. [Defense Counsel 1] was the
primary trial counsel. The trial lasted for two weeks. We expected to
put on two expert witnesses, one about blood/alcohol testing and one
about the cause of the accident. But[] the Judge would not let us present
our evidence and experts to the jury. As a result, I was very concerned
about what might happen. [Defense Counsel 2] began texting with the
prosecutor and they offered a new type of deal. The plea was for a cap
of ten years and, as I understood it, I would be eligible for probation
from the Judge because the State had not asked for and would not
request a deadly weapon finding. With that belief and understanding, I
agreed to plead guilty and was expecting to be able to have a shot at
probation.
Instead, at sentencing, the prosecutor got up and made a big deal
out of the deadly weapon and requested the court to find one was used
and that I should go to prison. [Defense Counsel 2] argued to the court,
but the Judge ruled against me.
I do not believe that my plea was voluntary because I would not
have accepted the offer had I known they would seek a deadly weapon
[finding] and probation would not be available.

At the hearing on the motion for new trial, Bowman and her attorneys testified

for the defense, and a prosecutor testified for the State. Defense Counsel 2 testified

that prior to trial, Prosecutor 1 made a verbal offer of a fifteen-year sentence and a
15
revised offer of a twelve-year sentence. According to Defense Counsel 2, during the

entire four years the case was pending up until Bowman’s guilty plea, the State never

orally or in writing discussed the affirmative finding of a deadly weapon in the case.

Defense Counsel 2 agreed that the indictment contained “no words such as the State

intends to seek a deadly weapon finding[]” and that he had “always operated under

the assumption that the State had to give me notice of their intent to seek a deadly

weapon [finding].” That said, Defense Counsel 2 stated he had since learned that a

2010 Court of Criminal Appeals case holds that the indictment does not have to

specifically allege the defendant used a deadly weapon and that a judge can add a

deadly weapon finding if the judge can piece together certain words in the

indictment.

Defense Counsel 2 testified that during the trial, he and Prosecutor 2 reached

a plea agreement with a cap of ten years, and the plea offer was “silent on the issue

of the deadly weapon[.]” Defense Counsel 2 communicated clearly that the defense

would be asking for probation, and he and Prosecutor 2 specifically discussed

whether Bowman could get deferred or straight probation. According to Defense

Counsel 2, he knew that if the case returned to Judge Stevens for sentencing that

Judge Stevens would on his own make a deadly weapon finding under the facts.

Defense Counsel 2 believed Judge Thorne would handle the sentencing because

Judge Thorne had heard the two-week trial, and Defense Counsel 2 did not believe

16
that Judge Thorne would on his own add a deadly weapon finding and Bowman

would therefore be eligible for probation. Defense Counsel 2 testified that in

discussing with Bowman the impact of the plea agreement, he specifically told her

that if Judge Stevens presided over the sentencing, then there would be a deadly

weapon finding but that Defense Counsel 2 was optimistic that Judge Thorne would

hear the sentencing and that he would not automatically add the deadly weapon

finding. Prior to Bowman entering her plea, Defense Counsel 2 learned that Judge

Thorne would handle sentencing, so Defense Counsel 2 informed Bowman that there

would not be an automatic deadly weapon finding. According to Defense Counsel

2, it was his and Bowman’s understanding that, under the plea agreement with the

State, the State would not request a deadly weapon finding at sentencing, Bowman

relied on that belief in pleading guilty, Defense Counsel 2 advised her to enter a plea

based on that belief, and she would have never pled guilty if she knew the State was

going to request a deadly weapon finding. Defense Counsel 2 recalled that the

defense was prepared to put on a case for probation to the jury, and he believed that

Bowman entered her plea based in part upon the misinformation that the State would

not seek the deadly weapon finding. Defense Counsel 2 testified that as a result, he

believed her plea of guilty was involuntary. Defense Counsel 2 testified that the first

time he learned that the State planned to request a deadly weapon finding was when

17
the attorneys were in the judge’s chambers prior to the sentencing, and the judge

mentioned that the State would be asking for a deadly weapon finding.

Defense Counsel 2 acknowledged during his testimony that at the time of

Bowman’s sentencing, he knew that the judge had the legal authority to make the

deadly weapon finding on his own, but the first time Defense Counsel 2 became

aware that the State was seeking the finding was from what the trial judge stated at

the sentencing hearing. Defense Counsel 2 testified that in his experience in trying

these cases, a deadly weapon finding was typically added during the charge

conference for the guilt/innocence phase of the trial, and since that was not reached

in this case, he did not believe that the State would seek a deadly weapon finding.

According to Defense Counsel 2, when the State requests the finding, the trial judge

“was going to grant it” because “the facts were there.” Defense Counsel 2 agreed

that, with Judge Thorne hearing the sentencing, “it wasn’t automatic that there would

be a deadly weapon[,]” whereas with Judge Stevens it would be automatic, and if a

trial court on its own entered a deadly weapon finding “that would just be something

that’s outside of my control.”

On cross-examination, Defense Counsel 2 agreed that the State v. Joseph

Duncan case he previously cited to the trial judge is inapplicable to this case.

Defense Counsel 2 also acknowledged that he was not aware of any policy when he

was a prosecutor that required the prosecutor to give notice that the State would be

18
seeking a deadly weapon finding. According to Defense Counsel 2, he believed,

based on texts sent between himself and Prosecutor 2, that neither the defense nor

the State would be mentioning a deadly weapon finding. The text messages and the

affidavits of Defense Counsel 1 and Bowman which were filed with the motion for

new trial were admitted as exhibits for purposes of the hearing. Defense Counsel 2

agreed that he and Prosecutor 1 never had any communications about a deadly

weapon finding, but Defense Counsel 2 stated that he assumed that Prosecutor 1

would not request a deadly weapon finding because Prosecutor 1 had never

mentioned a deadly weapon finding to Defense Counsel 2 and based on Defense

Counsel 2’s text to Prosecutor 2 that “We won’t mention D[eadly] W[eapon].”

Defense Counsel 2 believed the State was included in the “We[.]” Defense Counsel

2 also testified that he told Bowman that the judge could still add the deadly weapon

finding but that, based on his interpretation of the texts between Defense Counsel 2

and Prosecutor 2, Defense Counsel 2 believed the defense and the State would not

bring up a deadly weapon finding. According to Defense Counsel 2, Bowman was

misled because it was the defense’s understanding that the State would not

affirmatively seek a deadly weapon finding and that understanding induced her to

plead guilty and she would be eligible for probation. Defense Counsel 2 agreed that

he had advised Bowman there was a possibility that Judge Thorne could still make

19
a deadly weapon finding even if the defense and the prosecution did not bring it up,

and Bowman was aware of that possibility at the time she entered her plea of guilty.

Defense Counsel 1 testified that he was the primary trial counsel for

Bowman’s defense. Defense Counsel 1 acknowledged that he mistakenly stated in

his affidavit that the earlier plea offers to Bowman were rejected based upon an issue

about a deadly weapon finding because that was an erroneous assumption. Defense

Counsel 1 testified that he had relied on what Defense Counsel 2 had told him about

the texts, and it was Defense Counsel 1’s impression that the State would not be

asking for a deadly weapon finding based on what Defense Counsel 2 had conveyed

to Defense Counsel 1 about the texts. Defense Counsel 1 stated he then conveyed

that impression to Bowman which induced her to enter a plea of guilty. According

to Defense Counsel 1, this inducement was “not a misleading by anybody” but was

instead “a miscommunication” about whether the State would seek a deadly weapon

finding. Defense Counsel 1 testified that in retrospect it would have been better to

get the agreement that the deadly weapon finding would not be mentioned by the

parties at the sentencing in writing as part of the plea agreement so that there would

not be any miscommunications; the signed plea papers did not address whether the

State would seek a deadly weapon finding, but there was no box to check for that on

the plea papers and that part of the plea deal would have to be handwritten on a

blank. According to Defense Counsel 1, had he known that the State would seek a

20
deadly weapon finding, he would have advised Bowman she should not plead guilty.

Defense Counsel 1 also agreed that in hindsight it would have been better to have

made an argument for probation before the trial court entered the deadly weapon

finding.

Bowman testified that when she found out that her defense experts were not

going to be able to testify, she panicked, Defense Counsel 2 informed her that the

State’s latest offer had a cap of ten years, and he told her that the State would not

affirmatively be seeking the deadly weapon finding and that probation was an

option. According to Bowman, the fact that “probation would be on the table,”

opened her up to the idea of signing a plea, and it was important to her at that time

that the State had agreed it would not seek a deadly weapon finding because she

understood that would make her eligible for a probated sentence. Bowman recalled

that at the time she entered her plea, no one discussed in court about whether there

would be a deadly weapon finding. Bowman testified that the representation made

to her that the State had agreed not to make an argument for an affirmative finding

of a deadly weapon was a significant inducement to her to enter a guilty plea.

Bowman spoke with her mother while Bowman was incarcerated, and her

mother relayed messages between Bowman and her attorneys regarding what

information to put in Bowman’s affidavit that was attached to her motion for new

trial. According to Bowman, she never had any communications with the State about

21
what the State was offering, and she had relied on representations made to her by

her defense attorneys. Bowman testified that at the sentencing when the prosecutor

asked for an affirmative deadly weapon finding, she was “completely blown away[]

[and] had no idea or [she] would have never signed the plea.” Bowman agreed that

she understood at the time of her plea that if she did not take the plea offer that she

would be exposed to the jury assessing punishment at anywhere from two to twenty

years. Bowman stated that prior to the case being assigned to Judge Thorne, she and

her attorneys had never discussed a deadly weapon finding. She explained that after

her case was assigned to Judge Thorne but prior to jury selection, her attorneys

explained to her that either the district attorney could seek, or the judge himself could

find, a deadly weapon was used which would preclude the chance for probation.

Prosecutor 2 testified that he is an assistant district attorney with Jefferson

County and assisted Prosecutor 1 in prosecuting this case. Prosecutor 2 testified

about the text messages with Prosecutor 1 that related to the plea in this case, the

texts came from his cell phone, and the texts were admitted into evidence at the

motion for new trial hearing. According to Prosecutor 2, once the trial court excluded

the testimony of the two defense experts during the trial, Prosecutor 2 saw an

opportunity for a plea agreement. Prosecutor 2 then approached Prosecutor 1 about

that opportunity, and even though Prosecutor 1 was “fired up” at how the trial was

going and ready to finish the trial, Prosecutor 1 agreed to let Prosecutor 2 attempt to

22
negotiate a plea with Bowman. Prosecutor 2 recalled that because the case was

assigned to Prosecutor 1, Prosecutor 2 asked Prosecutor 1 if he would agree to

offering Bowman a cap of ten years. Prosecutor 2 testified that in addition to the text

messages, he talked to Defense Counsel 2 on the phone about being unsure which

trial court judge would hear the plea. Prosecutor 2 testified that he believed that one

of the reasons this was being discussed was the possibility of the deadly weapon

finding. Prosecutor 2 recalled that the text messages admitted at the hearing were

made after the phone call he had with Defense Counsel 2. He explained that they

discussed the deadly weapon finding issue in the phone call, and when Prosecutor 2

texted to Defense Counsel 2 that “if you put [Prosecutor 1] in the spot of having to

concede anything on the deadly weapon deal he is going to push back[]” he was

conveying to Defense Counsel 2 that the State would not waive a deadly weapon

finding.

Prosecutor 2 testified that Prosecutor 1 as lead attorney for the State never

affirmed to him that the State would not argue for the deadly weapon finding, and

Prosecutor 2 never made that affirmation to anyone. According to Prosecutor 2,

based on his conversations with Defense Counsel 2, it was clear that Defense

Counsel 2 was looking at the issue of notice and the issue that it was within the trial

court’s discretion to make the affirmative deadly weapon finding. Prosecutor 2

testified that using common sense, he interpreted Defense Counsel 2’s text message

23
that “We won’t mention DW[]” to mean that the defense team would not mention a

deadly weapon finding, not that the parties would not mention it. Prosecutor 2

testified that neither he nor Prosecutor 1 ever misled the defense about whether the

State would seek a deadly weapon finding, and Prosecutor 2 agreed that everything

the trial court had in writing in fact indicated the opposite. Prosecutor 2 believed that

Defense Counsel 2’s plan was to argue in the sentencing hearing that the indictment

was not sufficient notice of the deadly weapon issue and try to convince the trial

court not to make a deadly weapon finding. Prosecutor 2 testified that neither he nor

Prosecutor 1 ever conceded to the defense in this case that the State would not argue

for a deadly weapon finding. According to Prosecutor 2, the State would not have

conceded that because the State was already offering a lower cap, and conceding the

deadly weapon issue would unnecessarily tie the State’s hands and ability in the

case. Prosecutor 2 testified that the State would have never waived arguing for a

deadly weapon finding. Prosecutor 2 testified that he believed Defense Counsel 2

sent him the text message implying that the prosecution had committed prosecutorial

misconduct because, in part, Defense Counsel 2 was protecting himself from an

angry client. Prosecutor 2 recalled that it was at the defense’s insistence that the trial

court decided to make a deadly weapon finding at the beginning of the sentencing

hearing as opposed to the end because it would make a difference as to how the

defense would proceed with its evidence at the sentencing hearing.

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The trial court denied the motion for new trial. Bowman timely appealed.

Arguments on Appeal

Bowman argues her plea was involuntary, requiring the reversal of her

conviction. According to Bowman, she agreed to plead guilty “with the specific

understanding that the State would not seek or argue for an affirmative finding of a

deadly weapon.” Bowman alleges that she was induced into pleading guilty based

on misleading and incorrect information that her defense attorney told her. She

contends her attorney told her the State had agreed it would not seek or argue for an

affirmative finding of a deadly weapon, and otherwise she would not have pleaded

guilty. Bowman asserts that, had she known that the trial court would enter a deadly

weapon finding, she would have elected to continue with her jury trial and allowed

the jury to determine her sentence with the possibility of probation.

The State argues that Bowman’s guilty plea was voluntary, she failed to meet

her heavy burden to show that she did not fully understand the consequences of her

plea or that she suffered harm, she failed to show that the alleged misinformation

was significant because it was not binding on the court or something that would

change her punishment range, and at the time she pleaded guilty she was eligible for

probation. According to the State, Bowman’s written plea admonishments reflect

that Bowman was fully admonished regarding her rights and the consequences of

entering her plea, and the reporter’s record indicates that the trial court confirmed

25
the admonishments and that Bowman understood that her plea agreement with the

State was that if she pleaded guilty, the State’s recommendation for punishment

would not exceed ten years. The State contends that there is absolutely nothing in

the plea paperwork stating the State would “waive” a deadly weapon finding or

remain silent on the deadly weapon issue. The State asserts the paperwork left a

blank for the agreed punishment recommendation provision that provides “[t]he

State will not make a specific punishment recommendation[]” and left blank the

section of the agreed punishment recommendation where the parties may include

any other provision agreed to by the parties. The State also argues that Bowman’s

argument is not supported by the record. At the hearing on Bowman’s motion for

new trial, the State contends it established that it did not agree to concede anything

on the issue of a deadly weapon finding or remain silent on the deadly weapon issue.

The State emphasizes that Bowman knew that the trial court could enter a deadly

weapon finding sua sponte, and she agreed during the motion for new trial hearing

that she knew that if Judge Stevens was the judge deciding her sentence that he

would automatically enter a finding of a deadly weapon given the facts of her case.

The State also asserts that the text messages between the State and Bowman’s

counsel demonstrate that Bowman agreed to the plea agreement of a cap of ten years

knowing that there was a chance the judge could enter a deadly weapon finding, and

that it is clear that the State did not agree to probation.

26
We note that on appeal Bowman does not allege that her counsel was

ineffective, nor does she contend that the State breached the plea agreement. Instead,

Bowman argues only that her plea was involuntary because she and her defense

counsel believed the State would not affirmatively seek a deadly weapon finding,

and she claims that misunderstanding induced her to plead guilty and makes her plea

involuntary.

Analysis

A judge cannot give probation to a defendant when it is shown that a deadly

weapon was used or exhibited in the commission of the offense and there has been

an affirmative finding of the use of a deadly weapon. Tex. Code Crim. Proc. Ann.

art. 42A.054(b)-(d). The trial court has discretion when making a deadly weapon

finding. See Guthrie-Nail v. State, 506 S.W.3d 1, 6 (Tex. Crim. App. 2015). Until

the trial court makes a “separate and specific affirmative finding” that a deadly

weapon was used, a defendant is eligible for probation, regardless of whether the

indictment upon which he was convicted required proof of a deadly weapon. Hooks

v. State, 860 S.W.2d 110, 113-14 (Tex. Crim. App. 1993).

Article 26.13 of the Texas Code of Criminal Procedure requires a trial judge

to give certain admonishments before accepting a plea of guilty. See Tex. Code

Crim. Proc. Ann. art. 26.13(a). With one exception not applicable here, these

admonishments may be given either orally or in writing. See id. art. 26.13(d). If they

27
are in writing, the trial court must obtain a statement signed by the defendant and

her attorney indicating the defendant understood the admonitions and was aware of

the consequences of her plea. See id. A defendant must knowingly and voluntarily

enter her guilty plea in order for the plea to be constitutionally valid. See id. art.

26.13(b); Brady v. U.S., 397 U.S. 742, 748, 753, 755 (1970); Kniatt v. State, 206

S.W.3d 657, 664 (Tex. Crim. App. 2006). “To be ‘voluntary,’ a guilty plea must be

the expression of the defendant’s own free will and must not be induced by threats,

misrepresentations, or improper promises.” Kniatt, 206 S.W.3d at 664 (citation

omitted). When the record shows that the trial court gave a proper admonishment,

there is a prima facie showing of a knowing and voluntary plea of guilty. Ex parte

Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Ex parte Arjona, 402

S.W.3d 312, 318 (Tex. App.—Beaumont 2013, pet. ref’d). (“The admonishment is

a prima facie showing that the guilty plea was knowing and voluntary.”). A

defendant may still raise the claim that her plea was not voluntary; however, the

burden shifts to the defendant to demonstrate that she did not fully understand the

consequences of her plea such that she suffered harm. See Gibauitch, 688 S.W.2d at

871. “When a defendant enters into a plea, attesting that she understands the nature

of her plea and that it is being made knowingly and voluntarily, she has the burden

on appeal to show that her plea was involuntary.” Briggs v. State, 560 S.W.3d 176,

187 (Tex. Crim. App. 2018) (citation omitted). Therefore, we must determine

28
whether Bowman has shown, considering the totality of the circumstances, that her

plea was involuntary. See Griffin v. State, 703 S.W.2d 193, 195-96 (Tex. Crim. App.

1986); Ex parte Arjona, 402 S.W.3d at 318 (citing Ex parte Zapata, 235 S.W.3d

794, 795 (Tex. Crim. App. 2007); Ex parte Young, 644 S.W.2d 3, 4-5 (Tex. Crim.

App. 1983)). “A plea is not rendered involuntary simply because the defendant did

not receive the punishment [s]he hoped for, even if h[er] expectation was the result

of something the defendant claims h[er] lawyer told h[er].” Nicholas v. State, 56

S.W.3d 760, 771 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

This Court considers the totality of the circumstances surrounding the plea in

light of the entire record. Merritt v. State, No. 09-17-00140-CR, 2018 Tex. App.

LEXIS 1873, at *21 (Tex. App.—Beaumont Mar. 14, 2018, pet. ref’d) (mem. op.,

not designated for publication) (citing Ex parte Moody, 991 S.W.2d 856, 858 (Tex.

Crim. App. 1999)). Due process does not require the trial court to admonish a

defendant of the consequences of a deadly weapon finding where the defendant

signed written admonishments that included the range of applicable punishment. See

Wiggins v. State, 499 S.W.3d 149, 151 (Tex. App.—Houston [14th Dist.] 2016, pet.

ref’d). Article 26.13 does not require the trial court to admonish a defendant on the

effects of a deadly weapon finding on the eligibility for community supervision or

parole. Friemel v. State, 465 S.W.3d 770, 774 (Tex. App.—Texarkana 2015, pet.

ref’d). When the language in the indictment alleges that a vehicle in the manner of

29
its use caused death or serious bodily injury, it necessarily includes an allegation that

the motor vehicle was a deadly weapon, and that language provides a defendant

sufficient notice that the State might seek an affirmative finding on the use of the

weapon. See Acosta v. State, No. 09-17-00433-CR, 2018 Tex. App. LEXIS 5186, at

**4-5 (Tex. App.—Beaumont July 11, 2018, no pet.) (mem. op., not designated for

publication) (citing Blount v. State, 257 S.W.3d 712, 714 (Tex. Crim. App. 2008);

Mills v. State, 541 S.W.3d 381, 387 (Tex. App.—Houston [14th Dist.] 2017, no

pet.)). That said, a defendant’s election to plead guilty, when based upon ineffective

assistance of counsel or erroneous legal advice of counsel, is not done voluntarily

and knowingly. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App.

2012) (citing to Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980) and

Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991)). “[A] guilty or nolo

contendere plea will not support a conviction where that plea is motivated by

significant misinformation conveyed by defense counsel.” Cardenas v. State, 960

S.W.2d 941, 943 (Tex. App.—Texarkana 1998, pet. ref’d); see Burke v. State, 80

S.W.3d 82, 93 (Tex. App.—Fort Worth 2002, no pet.) (“a guilty plea will not support

a conviction where that plea is motivated by significant misinformation conveyed

by defense counsel[]”). A plea of guilty is invalid if it is induced by defense

counsel’s direct misrepresentation that the State has made a concession which in fact

was not part of the plea agreement. Ex parte Griffin, 679 S.W.2d 15, 17 (Tex. Crim.

30
App. 1984). “A guilty plea may be found invalid if it is induced by erroneous advice

or misrepresentations by defendant’s counsel or some other officer of the Court.” Ex

parte Klem, 269 S.W.3d 711, 720 (Tex. App.—Beaumont 2008, pet. ref’d). In

considering the voluntariness of a guilty plea, an appellate court examines the record

as a whole. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998);

Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975).

On appeal, the Appellant argues this case is like the facts in Ex parte

Moussazadeh III and Ex parte Griffin. Both of those cases involved applications for

habeas relief rather than direct appeals. See Ex parte Moussazadeh, 361 S.W.3d at

686-87; Ex parte Griffin, 679 S.W.2d at 15. In Moussazadeh, the defendant (a

juvenile at the time of the offense) was under indictment for capital murder and he

pled guilty to the reduced charge of murder without an agreement for punishment.

361 S.W.3d at 687. The trial court accepted the plea and later sentenced him to

seventy-five years. Id. The undisputed evidence showed that, prior to the defendant’s

entry of his plea of guilty, his defense attorney had advised him of his parole

eligibility and the advice he gave was wrong. Id. at 688. More specifically, the

portion of his sentence that he was required to serve before he became eligible for

parole was “double the portion that he was led to believe he must serve.” Id. at 692.

In the application for habeas relief the applicant alleged ineffective assistance of

counsel because his attorney gave him the wrong advice on when he would be

31
eligible for parole. Id. at 688. The Court of Criminal Appeals noted that in Ex parte

Evans (regarding advice from counsel about parole attainment not rendering a plea

involuntary) it made an “incorrect statement of law” and an “erroneous logical

leap[,]” applying the concept of the speculative nature of parole attainment to parole

eligibility, and then in Moussazadeh II it had further conflated parole eligibility with

parole attainment. Id. at 690. The terms of parole eligibility are succinct and

statutory. Id. at 691. Moussazadeh’s attorney could have easily determined the

applicable parole eligibility from the new statute that went into effect eleven days

before Moussazadeh committed the offense. Id. The Court concluded that the

defendant had shown his attorney’s performance was deficient, the applicant met the

Strickland ineffective assistance standards including showing he would not have

pled guilty if he had known the actual time he would have to serve before he became

eligible for parole, and he was entitled to habeas relief. Id. at 692.

In Griffin, the defendant applicant filed a petition for a writ of habeas corpus

seeking to have his burglary conviction invalidated on the grounds that his defense

attorney misled him to believe that the State had agreed to revoke a probation on an

earlier conviction in Walker County if he pled guilty to the charges in Harris County,

and then the sentence in Walker County could be reformed to run concurrently with

his sentence for the burglary conviction in Harris County. 679 S.W.2d at 15-16.

Instead of revoking and reforming in Walker County, the Walker County prosecutor

32
merely put a “hold” on applicant when he entered prison for the Harris County five-

year sentence, and the Walker County file showed the motion to revoke his probation

in Walker County was still pending. Griffin claimed in his habeas petition that the

State broke its bargain. The Court of Criminal Appeals noted that Griffin had the

burden to prove by a preponderance of the evidence his allegations. Id. at 16-17. In

finding that the applicant was misled by his own counsel, the Court was not imputing

defense counsel’s actions and advice to the State, and the Court determined that the

case was one of a decision to plead guilty based on wrong information and not a

“broken bargain case[.]” Id. at 18. As expressed to Griffin, the agreement would

have eliminated his exposure to any future imprisonment on the Walker County case

by allowing him to serve the sentences concurrently, but in fact he remained subject

to the risk of ten years imprisonment for his Walker County conviction. The Court

found that the applicant met his burden to show his plea of guilty was not a knowing,

intelligent act done with sufficient awareness of relevant circumstances and likely

consequences. Id.

Unlike Moussazadeh, Bowman does not make an ineffective assistance claim,

and the advice her attorneys provided to her about the trial court’s ability to make a

deadly weapon finding was correct. She was told that the trial court may still make

a deadly weapon finding even if the State did not affirmatively ask for it.

Additionally, unlike Griffin, Bowman failed to show by a preponderance of the

33
evidence that her plea agreement was based on what her attorney told her about the

State not mentioning or asking for an affirmative deadly weapon finding. Bowman’s

attorney correctly informed her the trial judge could still make a deadly weapon

finding even if the State did not seek an affirmative finding and Bowman agrees she

understood that risk when she entered her guilty plea. At the time of Bowman’s

guilty plea, the trial court had not made a deadly weapon finding, so Bowman was

still eligible for probation. See Hooks, 860 S.W.2d at 113-14. The record shows that

the trial court properly admonished Bowman orally and in writing, and Bowman

testified that she understood the range of punishment. The Written Plea

Admonishments signed by Bowman, admonished Bowman that she was charged

with the second-degree felony offense of intoxication manslaughter with a vehicle

and, if convicted, would face the range of punishment of “[a] term of not more than

20 years or less than 2 years in the Institutional Division of the Texas Department of

Criminal Justice[]” and “a fine may be assessed not to exceed $10,000.” In the

stipulation signed by Bowman, she affirmed that she “under[stood] the foregoing

admonishments from the Court and [was] aware of the consequences of [the] plea.”

The Agreed Punishment Recommendation signed by Bowman, states that “[t]he

defendant’s punishment will not exceed a cap of 10 years in the Institutional

Division.” Bowman and the State left blank the provision which states “The State

34
will not make a specific punishment recommendation.” And nothing in the plea

papers indicates that the State agreed to waive a deadly weapon finding.

The record reflects that the trial court judge discussed the deadly weapon

finding with the attorneys prior to the sentencing. In the text messages between

Defense Counsel 2 and Prosecutor 2, the prosecutor warned the defense counsel that

the State would not waive its right to seek a deadly weapon finding if asked. The

trial court made the deadly weapon finding making Bowman ineligible for probation.

See id. at 113-14; see also Heuermann v. State, No. 01-96-00833-CR, 1998 Tex.

App. LEXIS 316, at **3-4 (Tex. App.—Houston [1st Dist.] Jan. 15, 1998, pet. ref’d)

(mem. op., not designated for publication). Bowman’s testimony at the hearing on

her motion for new trial, as well as defense counsel’s testimony at the hearing,

established that Bowman understood at the time she entered her plea of guilty that

the trial court could make a deadly weapon finding on its own without any request

from the State, and if that finding was made by the trial court it would preclude the

option of probation.

Bowman’s defense attorney argued:

If we thought that the State was going to move for the deadly weapon,
it would have been a foregone conclusion she would not have had
probation; and I would have never advised her to enter a plea of guilty
to the Judge. I would have advised her to enter a guilty plea to the jury.

35
As explained in the plea documents, without the plea agreement which had a

cap of ten years, the jury could have sentenced Appellant up to twenty years in prison

and additionally assessed a fine. The defense attorney stated:

[W]e told her that, you know, theoretically you could get probation
from the jury, but maybe you wouldn’t get probation from the jury. So,
this was an avenue for arguing for probation from a Judge and showing
the Judge sort of our mitigation case that we had prepared.

If the matter had been submitted to the jury, the jury also could have been

asked to make an affirmative finding of a deadly weapon. The plea agreement to

which Bowman agreed limited her potential punishment from up to twenty years in

prison to no more than ten years, and at the time of the plea, she was still eligible for

probation. Appellant failed to show how she was harmed by the misunderstanding

that the State was not going to ask for an affirmative deadly weapon finding. See

Gibauitch, 688 S.W.2d at 871.The record before us fails to show that the judge made

an affirmative finding of a deadly weapon because the State requested it. As a matter

of law, the trial court has the authority to add the affirmative finding to the judgment

even without any request from the State, if the facts support that finding. Flores v.

State, 690 S.W.2d 281, 283 (Tex. Crim. App. 1985) (en banc). Bowman does not

argue that the facts do not support the affirmative finding.

Considering the totality of the circumstances as shown by the entire record

before us, we conclude Appellant has not met her heavy burden to show that her plea

was involuntary. See Briggs, 560 S.W.3d at 187; Griffin, 703 S.W.2d at 196;
36
Gibauitch, 688 S.W.2d at 871; Merritt, 2018 Tex. App. LEXIS 1873, at *21 (citing

Ex parte Moody, 991 S.W.2d at 858); Ex parte Arjona, 402 S.W.3d at 318. Bowman

received the benefit of her plea agreement, and her sentence was capped at ten years.

We overrule Appellant’s issue on appeal. We affirm the trial court’s judgment.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on August 20, 2025
Opinion Delivered October 22, 2025
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

37