Desilets v. State
2016 Tex. App. LEXIS 5500
| Tex. App. | 2016Background
- Paul Ray Desilets appealed after the trial court denied his motion for a judgment nunc pro tunc relating to two intoxication-assault convictions.
- Desilets contended the judgments failed to credit him for 61 days he served in the county jail after sentencing and before transfer to a prison unit.
- The appellate court questioned its jurisdiction and solicited responses from the parties.
- The State argued there is no statutory authority to appeal an order denying a nunc pro tunc judgment.
- The trial court’s denial made no change to the original judgments; thus it was not itself a nunc pro tunc judgment.
- Desilets also asked the court to treat his appeal as a petition for mandamus relief; the court declined because his requested credit was for post-sentencing jail time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an order denying a motion for judgment nunc pro tunc is appealable | Desilets: the denial is an appealable judgment nunc pro tunc | State: no statute authorizes appeal from denial of nunc pro tunc entry | Court: no appellate jurisdiction; appeal dismissed |
| Whether the denial changed the original judgment | Desilets: sought correction to reflect 61 days credit | State: denial makes no clerical change to original judgment | Court: denial made no change; not a nunc pro tunc judgment |
| Whether mandamus relief should be granted for post-sentencing jail credit | Desilets: asked appellate court to treat appeal as mandamus petition | State: mandamus appropriate in limited circumstances; distinct rules apply | Court: declined to convert appeal to mandamus because relief sought was post-sentencing credit |
| Proper remedy for credit for time served after sentencing | Desilets: seeks credit via nunc pro tunc or mandamus | State: procedural limitations; different precedent applies for pre- vs post-sentencing credit | Court: dismissal for lack of jurisdiction; did not grant alternative relief |
Key Cases Cited
- State v. Sellers, 790 S.W.2d 316 (Tex. Crim. App. 1990) (appeals are limited to final judgments; no general right to appeal from orders denying nunc pro tunc entry)
- Sanchez v. State, 112 S.W.3d 311 (Tex. App.—Corpus Christi 2003) (dismissing appeal from denial of judgment nunc pro tunc for lack of jurisdiction)
- Everett v. State, 82 S.W.3d 735 (Tex. App.—Waco 2002) (dismissing appeal challenging denial of nunc pro tunc relief for lack of jurisdiction)
- Blanton v. State, 369 S.W.3d 894 (Tex. Crim. App. 2012) (judgment nunc pro tunc effects clerical changes to original judgment)
- Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004) (mandamus may correct failure to credit pre-sentencing jail time in written judgment)
- Ex parte Dunlap, 166 S.W.3d 268 (Tex. Crim. App. 2005) (distinguishing remedies for credit for time served after sentencing)