Derek Maurice Roots v. State
419 S.W.3d 719
Tex. App.2013Background
- Derek Maurice Roots pled guilty in two separate indictments: (1) assault against a family/household member (third-degree felony) and (2) aggravated assault with a deadly weapon (firearm); both indictments included a prior-felony enhancement.
- The trial court deferred adjudication in both cases and placed Roots on eight years’ community supervision, explicitly finding the enhancement paragraphs true; the deferred-adjudication order for the aggravated-assault case described the offense as aggravated assault with a deadly weapon (firearm) but the later adjudication judgment initially showed "N/A" for a deadly-weapon finding.
- The State later filed petitions to adjudicate for supervision violations; the court adjudicated guilt and sentenced Roots to 20 years for the domestic-assault and 25 years for aggravated assault, to run concurrently.
- After appeal was filed, the State moved for a judgment nunc pro tunc in the aggravated-assault case to correct the "N/A" and add an explicit deadly-weapon (firearm) entry; the trial court granted the motion, stating the deadly-weapon finding had been made when it adjudicated guilt.
- Appellate counsel for the domestic-assault appeal filed an Anders motion to withdraw, asserting the appeal was frivolous; the court independently reviewed the record and granted counsel’s motion, affirming that conviction.
- On the aggravated-assault appeal, Roots challenged the nunc pro tunc amendment adding the deadly-weapon entry; the court held the trial court did not err in correcting the judgment clerically because the deadly-weapon finding had been made as a matter of law when he was convicted as charged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appointed counsel may withdraw under Anders in the domestic-assault appeal | Anders motion: counsel says appeal is frivolous after review | Roots did not file a pro se response | Court independently reviewed record, agreed appeal frivolous, granted withdrawal and affirmed judgment |
| Whether trial court erred by granting nunc pro tunc to add an explicit deadly-weapon finding | State: original omission was clerical; deadly-weapon finding was necessarily made on conviction and statute mandates entry in judgment | Roots: trial court lacked authority to amend judgment to add finding not explicitly entered earlier | Court held nunc pro tunc proper: conviction as charged (indictment/plea/record) made deadly-weapon finding; statute requires entry and correction was clerical, not judicial |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (counsel may move to withdraw when appeal is frivolous and court must independently review record)
- Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985) (conviction "as charged in the indictment" can constitute de facto deadly-weapon finding)
- Ex parte Poe, 751 S.W.2d 873 (Tex. Crim. App. 1988) (trial court must enter deadly-weapon finding in judgment once trier of fact makes the finding; nunc pro tunc may correct omission)
- Hooks v. State, 860 S.W.2d 110 (Tex. Crim. App. 1993) (discusses interplay of making vs. entering deadly-weapon findings; treated differently by some courts)
- Blanton v. State, 369 S.W.3d 894 (Tex. Crim. App. 2012) (nunc pro tunc limited to clerical errors; cannot alter judicial reasoning)
- Ex parte Empey, 757 S.W.2d 771 (Tex. Crim. App. 1988) (affirmative deadly-weapon finding may arise as matter of law when indictment alleges use of deadly weapon and conviction is "as alleged")