Assuming a defendant has pled to an offense that has the use of a deadly weapon as an element of an offense, is a judge required to make an affirmative finding of a deadly weapon? Moreover, can a judge sentence a defendant to regular community supervision for offenses such as aggravated assault with a deadly weapon or deadly conduct (discharge of a firearm), when 42.12 Section 3 prohibits the granting of community supervision for offenses that have an affirmative finding of a deadly weapon? Would an analysis change if the deadly weapon alleged in the indictment is a firearm, which is a de facto deadly weapon?

I know it seems rather academic, but it has come up on several occasions now. Furthermore, interpretations of Ex Parte Huskins, 176 S.W.3d 818 (Tex. Crim. App. 2005)(en banc) and to a lesser extent Crumpton v. State, 301 S.W.3d 663 (2009), lead me to believe that such a finding is necessary. However, I have seen some contrary authority. Any one else encountered this issue?

Check out Hooks v. State, 860 S.W.2d 110 (CCA 1993). The judge has the discretion to choose not to make an affirmative finding even if the evidence supports it. But if the judge just finds the defendant guilty of an offense that alleges a deadly weapon without saying anything one way or the other, that's considered an implied finding and the judge has not discretion not to enter it in the judgment. Ex parte Poe, 751 S.W.2d 873, 876 (CCA 1988).

So in accordance with Hooks your saying a judge could refuse to make an affirmative finding of a deadly weapon, including a firearm, in an aggravated assault with a deadly weapon and place the defendant on regular community supervision?

Yes. See also Fanniel v. State, 73 S.W.3d 557 (Tex. App. — Houston [1st Dist.] 2002, no pet.) (failure to make deadly weapon finding not subject to nunc pro tunc order).

Just to be clear, your facts are distinguishable from the situation recently decided on mandamus by an intermediate court that,where the parties have agreed to a d/w finding, a trial court accepting a plea bargain is required to follow ALL the terms of the plea bargain--including the d/w finding. See In re; The State of Texas, No. 08-12-00165-CR (Tex.App.--El Paso 2/20/13)(orig. proceeding)

I recently wrote a brief on a similar situation. The situations seem to be:
1. Plea bargain explicitly including a DW finding -- DW finding. Trial court is required to follow the plea bargain. (Or reject it completely, of course.)
2. Plea bargain or trial with no explicit finding but D is convicted under an indictment with a DW alleged -- implied DW finding.
3. Plea bargain or trial with no explicit finding, indictment doesn't include DW allegation -- no DW finding.
4. Plea bargain or trial with no explicit finding, but trial court grants probation or something that can only happen without a DW finding -- implied finding of no DW.
5. Plea bargain or trial with explicit "there will be no DW finding" -- no DW finding.

Thanks you all for all the help and insight. Andrea if you still have the brief, Id like to see it if you don't mind so that I can present something to my judge without having to reinvent the wheel. If you still have it, do you mind emailing me a copy to bobby.lopez@da.co.hidalgo.tx.us?

This issue is also covered in The Perfect Plea.