Blanton, Donald Gene
2012 Tex. Crim. App. LEXIS 861
Tex. Crim. App.2012Background
- Appellant challenged a nunc pro tunc judgment in cause no. 15,189 for burglary of a habitation.
- Prior related charge was cause no. 15,184 for burglary of a building; Appellant pleaded guilty and received deferred-adjudication supervision for 5 years.
- Appellant later admitted to a probation violation and, in July 1987, entered a true plea as part of cause no. 15,189, resulting in a seven-year confinement with restitution.
- In August 1988, the trial court issued a nunc pro tunc judgment adding restitution that had been orally ordered in open court.
- In March 2009, Appellant sought a judgment nunc pro tunc claiming the first nunc pro tunc judgment mis-stated the offense as burglary of a habitation instead of burglary of a building, seeking correction.
- The Third nunc pro tunc judgment was entered June 12, 2009, correcting to burglary of a habitation and elevating the offense to a first-degree felony; Appellant filed a notice of appeal June 23, 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal of the June 12, 2009 nunc pro tunc judgment was timely. | Appellant Timothy Blanton timely appealed under Rule 26.2 after the 2009 nunc pro tunc entry. | State argued timeliness should be measured from the original 1987 sentence under pre-rule dates. | Yes; timely under Rule 26.2; Court has jurisdiction to consider merits. |
| Whether nunc pro tunc judgments are appealable orders and confer appellate jurisdiction. | Appellant argues nunc pro tunc judgments remain appealable after Rule 23.1; right derives from prior caselaw. | State argues Rule 23.1 governs corrections, not appellate right; no statutory authorization. | Nunc pro tunc judgments are appealable orders; jurisdiction exists to review merits. |
| Whether Appellant’s right to appeal is governed by Rule 25.2 and the plea-bargain certification. | Rule 25.2 does not bar appeal where the nunc pro tunc issue is independent of underlying conviction. | Certification that there is no right to appeal could bar review; issues arise from nunc pro tunc order, not plea terms. | Remand to address Rule 25.2 certification; appeal rights under Rule 25.2 must be considered. |
| What is the effect of the plea bargain on appellate rights to challenge the nunc pro tunc judgment. | Rule 25.2 allows appeal of matters raised by written motion or with permission; nunc pro tunc issue may be appealable. | Plea-bargain certification limits appeals to pre-trial motions or with permission; nunc pro tunc order may be outside. | Court remands to consider merits; nunc pro tunc appeal rights persist, subject to proper certification. |
Key Cases Cited
- Ex parte Beard, 41 Tex. 234 (Tex. 1874) (early authority on nunc pro tunc corrections)
- Shaw v. State, 539 S.W.2d 887 (Tex. Crim. App. 1976) (nunc pro tunc corrections treated as appealable in appropriate context)
- Jones v. State, 795 S.W.2d 199 (Tex. Crim. App. 1990) (date of conviction vs. nunc pro tunc entry for timing impact)
- Curry v. Ex parte, 712 S.W.2d 878 (Tex. App.-Austin 1986) (nunc pro tunc orders correcting clerical errors may be appealed)
- Homan v. Hughes, 708 S.W.2d 449 (Tex. Crim. App. 1986) (appealability of nunc pro tunc orders related to deferred adjudication)
- Abbott v. State, 271 S.W.3d 694 (Tex. Crim. App. 2008) (statutory authorization required for certain appeals; not extending to all nunc pro tunc appeals)
- Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001) (statutory limits on voluntariness-plea appeals; discussion of Rule 23.1 impact)