Lowe, Arthur David, WR-25,679-22

Background

Applicant Arthur David Lowe was convicted by a jury in 1993 of first-degree aggravated kidnapping and sentenced to life in the Texas Department of Criminal Justice.
Initial direct appeal was decided in 1995 with an unpublished mem. op. for Lowe v. State.
Lowe filed an initial application for writ of habeas corpus (Cause No. 659154-A) which the trial court disposed of without consideration, and the Texas Court of Criminal Appeals denied relief on 18 December 2013.
After the 2013 disposition, Lowe filed a separate Motion for Reconsideration (April 2014) seeking correction of the judgment and sentence via nunc pro tunc relief.
The trial court granted Lowe’s motion in April 2014, correcting the judgment to second-degree aggravated kidnapping and reducing the offense in records, but Lowe was still serving life imprisonment and had not been present for the correction to the judgment.
The Court of Criminal Appeals issued an order on reconsideration in 2015, addressing due process concerns about the nunc pro tunc hearing conducted in Lowe’s absence and the alignment of oral pronouncement with the written judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether nunc pro tunc corrections conducted without Lowe’s presence violated due process.	Lowe asserts due process requires presence at sentencing and correction, as record corrections without him present impair rights.	Lowe contends corrections changed the judgment and sentence after final disposition, without notice or opportunity to participate.	Due process rights were violated by an in-person hearing for correction conducted in Lowe’s absence.
Whether Lowe’s current claim is barred as a subsequent application under Article 11.07 §4(a)(1).	Lowe argues the factual/legal basis for the claim was unavailable at the time of his initial application, so it should be considered.	Respondent maintains the claim is barred as a successive application, lacking the statutory exception.	The court determines the claim fell within an exception to the successive-application bar due to the later-occurring correction.
Whether the oral pronouncement of sentence must align with the written judgment when corrections occur.	Lowe asserts a mismatch between oral pronouncement and written judgment violates due process.	Respondent contends corrections can legitimate the written record even if pronounced differently.	Oral pronouncement must be in accord with the judgment, and nunc pro tunc corrections without defendant’s presence are improper.
Whether federal due process requires notice and opportunity to defend before changes to a judgment.	Lowe argues fundamental fairness requires notice and opportunity to respond.	State argues corrections are adjudicative and limited in scope.	Notice and opportunity to be heard are required; corrections cannot proceed in absence of the defendant.
Whether the trial court complied with statutory procedures for correction under Tex. Code Crim. Proc. art. 42.03 and related provisions.	Corrections were made without proper in-person proceedings and counsel presence.	Corrections were permissible under statutory authority when supported by record.	Corrections were improper as conducted without proper presence and procedure.

Key Cases Cited

Ex parte Vasquez, 712 S.W.2d 754 (Tex. Crim. App. 1975) (due process protections when altering judgment)
Marshall v. State, 860 S.W.2d 142 (Tex. App.—Dallas 1993) (due process right to sentence pronouncement in presence)
United States v. Martinez, 254 F.3d 941 (5th Cir. 2000) (when written judgment controls if conflict with sentence pronouncement)
United States v. Gagnon, 470 U.S. 522 (1985) (presence required for certain sentencing procedures)
Blakely v. Washington, 542 U.S. 296 (2005) (constitutional constraints on sentencing factors)
United States v. Vega, 332 F.3d 849 (5th Cir. 2003) (preservation of defendant’s rights during sentencing)
Williams v. State, 851 S.W.2d 282 (Tex. Crim. App. 1993) (context on sentencing disputes)