Loud v. State
329 S.W.3d 230
Tex. App.2011Background
- Appellant Loud was indicted in 2006 for aggravated assault with a deadly weapon; caption and plea papers mis-stated the offense as aggravated assault–bodily injury/serious bodily injury.
- At plea, Loud pleaded no contest and underwent deferred adjudication; admonishments and stipulations described the offense as aggravated assault–bodily injury.
- The 2006 deferred adjudication and related orders consistently referenced aggravated assault–bodily injury; the State later sought adjudication and Loud admitted violations of probation.
- In 2009, Loud was adjudicated guilty and sentenced to 15 years and a $10,000 fine, but the judgment listed the offense under the wrong statute and showed “N/A” for deadly-weapon findings.
- On February 13, 2009 the court’s judgment did not reflect a deadly-weapon finding; the State later moved for a judgment nunc pro tunc to correct clerical/judicial errors.
- The trial court granted the nunc pro tunc judgment changing the offense to Aggravated Assault with a Deadly Weapon and entered a deadly-weapon finding, prompting this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a nunc pro tunc judgment may correct judicial errors in this case. | Loud contends the court erred by changing judicial records to reflect a deadly-weapon finding. | The State argues clerical errors were corrected appropriately by nunc pro tunc. | The court vacates the nunc pro tunc judgment and reinstates the original judgment. |
Key Cases Cited
- Collins v. State, 240 S.W.3d 925 (Tex. Crim. App. 2007) (nunc pro tunc limited to clerical errors only; cannot fix judicial errors)
- Ex parte Poe, 751 S.W.2d 873 (Tex. Crim. App. 1988) (nunc pro tunc cannot correct judicial errors)
- Junious v. State, 120 S.W.3d 413 (Tex. App.—Houston [14th Dist.] 2003) (inherent power to modify during plenary jurisdiction; relevance to judgments)
- Ware v. State, 62 S.W.3d 344 (Tex. App.—Fort Worth 2001) (modification within plenary power; not a motion for new trial; supports modification rationale)
- Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005) (plenary power to modify sentence; context for modification timing)
- Ex parte Huskins, 176 S.W.3d 818 (Tex. Crim. App. 2005) (deadly-weapon finding not part of sentence; clerical entry required for finding in judgment)
- Hooks v. State, 860 S.W.2d 110 (Tex. Crim. App. 1993) (deadly-weapon finding and judgment entries can be discretionary when considering indictment allegations)