If a trial judge makes an affirmative finding that no deadly weapon was used and puts the D on deferred, can a different judge who presides over the adjudication hearing (but hears no evidence on the issue) reverse the finding?

Sounds like a due process violation to me.

As a starting place, you might want to look at Apprendi v. New Jersey, 530 U.S.466.

I have a pending arson prosecution where a young defendant torched a car, actually several, but at least 2 I can prove. I have a deadly weapon allegation in the indictment that he used a fire, flame or ignitable liquid. His attorney has approached me about entering an open plea to court to the offense, but not the d.w. finding. Does anyone's interpretation of Apprendi mean that I would need this defendant's open plea to be to a jury? Or could the trial judge hear the evidence and make the finding? Just wondering...

In your situation, Apprendi doesn't even apply. Apprendi establishes a constitutional right to have a jury hear and decide any fact (other than a criminal history) that increases the punishment range. A deadly weapon finding does not increase the punishment range of an arson case. It only changes the eligibility for probation and parole.

A deadly weapon finding changes the punishment range of a state jail felony to a third degree felony. In that circumstance, the defendant would have a constitutional right to have a jury hear and decide the issue.

Of course, a defendant can waive any right (other than the right to a jury trial in a capital murder case). So, if the defendant waives the right to a jury trial (wanting to plead open to a judge), he waives that right also as to the jury's consideration of the deadly weapon issue.

The better practice is to submit the deadly weapon issue during the guilt/innocence stage of the trial to the same finder of fact that considers the offense itself.

"The better practice is to submit the deadly weapon issue during the guilt/innocence stage of the trial to the same finder of fact that considers the offense itself."
John, if the D. W. allegation is in the indictment, and the defendant enters an open plea to the court to the indictment, would you recommend putting on evidence regarding fire as a D. W., or cover that in a stipulation of evidence? You know the reason this young defendant does not want affirmative finding. Can he plea to the arson elements, but not the D. W. allegation?

If the DW allegation is itself an element of the offense (such as in aggravated assault by threat and use or exhibition of a DW), then a plea of guilty and judicial confession in support of the indictment necessarily provides sufficient evidence of the DW finding. There need not be a separate issue presented, although the better practice would be to go ahead and do so.

If the DW allegation is separate from the elements of the offense, there is no requirement that a defendant even enter a plea (of true or not true) as to the allegation, although, again, the better practice is to ask for a plea.

You could just leave the DW issue separate from the elements and leave it to the finder of fact (the judge, if the defendant waives a jury trial) to make a decision after hearing evidence.

Much of this is discussed in The Perfect Plea, available from TDCAA (for free if you got yours as a prosecutor).

Kim: I think you can follow Sampson, 983 S.W.2d 842 (which pretty logically explains why the finding could be added at revocation) which was recently followed in an unpublished opinion in the Fifth Court. Or Fanniel, 73 S.W.3d 557, which implies the finding can be added if done right. Or Rivers, No. 10-02-091-CR (01/29/03) which says the finding cannot be added when passed over to begin with.