*1 The intended that Legislature he der rule. adopts where v. Ranch30 Kurth for both en- may punished that, multiple-punishment position organized activity criminal ap gaging in are more cases, claims double-jeopardy And to underlying predicate offense.34 Due Pro under the addressed propriately envi- punishment full give effect meritorious his However cess Clause. engag- both be, by Legislature for it has never been sioned view personal activity ing organized criminal Supreme Court and should adopted offense, is now forced predicate the State interpretation of bearing on our no have single pro- in a prosecute both offenses Dixon. sup- no ceeding. There is constitutional concurrence, Cochran, in her also Judge forced-joinder rule. port for such aggravated labeling the as- suggests that engag- offense of as a lesser-included join opinion sault I cannot the Court’s organized activity inconsistency criminal should ing in in the logical it results She double-jeopardy analysis. Jeopardy’s end the the Double “same meaning of my reading of Dixon in issue with “that is the same language: takes offense” what holding in light Supreme Court’s yet the same offense.”35 offense States, which the Rutledge United of participating held that the offense
Court conspiracy to distribute controlled offense of a lesser-included
substances was enter-
conducting continuing criminal for both
prise; convictions therefore Rut- jeopardy.31 double offenses violated BLANTON, Appellant, Donald Gene present case. ledge inapplicable First, with a Rutledge presented Court eopar double-j dy multiple-punishment of Texas. STATE Rutledge tried question because No. PD-0767-10. in a single pro- offenses convicted for both nei- Rutledge’s conclusion ceeding.32 So Appeals of Texas. Court of Criminal my reading of disproves nor ther confirms Second, if had in- Rutledge even 27, Dixon. 2012. June here, message is consis- structive value its conclusion that a court
tent with the once it legislative intent
should consider appear offenses be the same
finds the on their elements.33
based has, as
Finally, practical
result, mandatory-join- created a de facto 14, 802-803, 767, & n. 33. See id. at 303-304 S.Ct. S.Ct. 1937
30. 511 U.S.
J.,
argument
dissenting).
(rejecting
government’s
(Scalia,
multiple
Congress
punishment
intended
offenses).
both
States,
Rutledge
U.S.
v. United
31.
S.Ct.
I. BACKGROUND History A. Trial Court This upon based nunc 15,189 judgment cause no. for bur- glary of a habitation.1 Prior to that charge, April Appellant was indict- for burglary building ed of a in cause no. Souza, Dallas, appellant T. for Christian 15,184. negotiated plea He entered a pro se. guilty placed deferred-adjudi- and was on Korioth, D.A., Kaufman, Sue Asst. Lisa cation community supervision for five McMinn, Austin, Attorney, C. State’s for later, years. A few months he violated the State. community supervision by terms of his entering a habitation with the intent OPINION July Appellant commit theft. In en- J., MEYERS, tered a opinion plea probation-revoca- delivered the true PRICE, KEASLER, offense, hearing tion for the earlier Court which cause 15,184, HERVEY, COCHRAN, ALCALA, no. negotiated and also entered a JJ., 15,189, joined. plea cause no. which is the sub- ject of this case. He was sentenced Appellant appealed the nunc years’ seven confinement and ordered to County of the Kaufman District pay restitution for each offense. Appeals Court. The Fifth dis- jurisdiction the case for want of In August missed the trial court realized concluding Appellant failed to that the final written for cause 15,189 file timely appeal. notice of Blanton v. no. did not include the restitution 05-09-00758-CR, payment orally No. 2010 WL that had been ordered in (1) habitation; premises are a § 1. Tex. Penal Code 30.02: (2) (c) (d), any party to the entered the Except provided in offense as Subsection an felony offense under this section a: habitation with intent to commit a (1) jail felony if state committed in a felony other than theft or committed or building other than a attempted felony habitation: to commit a other than (2) felony degree of the second if commit- felony theft. ted in a habitation. (d) felony An offense under this section is a degree of the first if: of via open explanatory court. The court entered the first letter from the district clerk. judgments, adding three Appellant amount of restitution The third orally pay by been ordered 15,189 entered in cause no. to correct the
court. burglary building offense of a to bur- glary to change habitation and March filed a motion Appellant degree a first-degree offense to tunc no. cause felony. The order tracked the first 15,189, alleging the first *4 judgment 15,189, from cause no. judgment incorrectly con- entered a but included the date of the offense as habitation, for of a burglary viction rather 26, 1987, April which date of is for a is a burglary building than —which burglary building 15,184, of a in no. cause serious less offense. 16,1987, July rather than which is the date motion, As exhibits for his Appellant burglary of a habitation occurred. adjudi- judgment attached the and order 15,189 Cause is at no. issue case here. 15,184. cating him guilty in cause no. However, tops documents show- Appellate History B. were He
ing
cause number
cut off.
Appellant appealed the trial court’s third
copies
plea
attached
of his
agreement
also
nunc
23,
judgment on June
the first nunc
judgment
and
The trial court
filed certification with the
15,189.
alleged
cause no.
He
that he
Fifth
of Appeals, showing
Court
that Ap-
only
burglary
one
been convicted of
pellant
had no
to appeal because his
charge,
all
burglary
building,
of a
and that
bargain.
conviction arose from plea
charge.
of the exhibits concerned that
The Fifth Court of Appeals dismissed
response
motion,
Appellant’s
the Appellant’s appeal, holding that he failed
entered a second nunc
court
Blanton,
file
timely
a notice of appeal.
15,189,
super-
judgment
cause no.
which
551442,
*2, *2-3,
2010
at
WL
2010 Tex.
changed
seded
first.
It
the offense
1135,
*4,
LEXIS
*6. The
App.
court
degree
conviction
modi-
and
and
Appellant’s appeal
determined that
was
13,
fied
date of the offense from July
23, 1987,
August
due on
or
which is
26, 1987,
April
which was the date
thirty days
imposed
his sentence was
offense,
15,184,
the first
cause
no.
15,189.
in cause no.
occurred.
for
Appellant
petition
filed
discretion-
State
did not
the second
review,
ary
asking us to determine wheth-
pro tunc
but
court
judgment,
appeals correctly
er
the court
ruled that
with
ex-
Appellant’s
discovered
issues
any
Rule
“does not grant
23.12
additional
hibits and entered the third jurisdiction for this
to review the
15,189,
no.
judgment
cause
which is
June
tunc proceeding.”
Appellant’s appeal
case.
basis
II. NUNC PRO TUNC JUDGMENTS
The third judgment
was
of a entered on June
without a hear-
The purpose
Appellant
but
ing,
provide
was notified of the order
a method for trial
Appellate
pronounce
2. Rule of
Procedure 23.1
sentence
states:
doing
time
granted
corrected
court's
Unless the trial
has
new
judgment,
trial or arrested the
or
so.
unless
appealed,
has
failure to render
III.
OF APPELLATE
the record when there is
RULES
courts
correct
PROCEDURE
as
discrepancy between
judgment re-
in court and the
au-
pronounced
granted rule-making
This Court
promulgate
posttrial,
record.
“rules of
thority
flected in the
Collins
in criminal
appellate,
procedure
review
(Tex.Crim.App.2007); Al-
S.W.3d
cases,”
“may
abridge,
but the rules
(Tex.
varez v.
S.W.2d
rights
enlarge,
modify
the substantive
Tex.R.App.
P. 28.1.
Crim.App.1980); see
22.108(a).
§
litigant.”
of a
Tex. Gov’t Code
must
reflect
The corrections
Appellate Procedure
The Texas Rules of
actually rendered but that for
that was
The cur-
originally adopted
were
1986.3
into
properly
entered
some reason
were
rent Rules
Procedure
the time of the
the record at
improve
in order
promulgated
(Tex.
State, 795
Jones
efficiency
practice
appellate
Crim.App.1990).
regard-
23.1 the current
law.4 Rule
rule
*5
ing
judgments.5
are
to the record
Corrections
and are not ap
limited
clerical errors
to
22.108(a)
Impact
§of
involving judicial rea
propriate for errors
analyzed the effect of Tex.
This Court
Poe,
873, 876
soning.
parte
Ex
22.108(a)
§
the
on the
of
Gov’t
Code
determination
(Tex.Crim.App.1988). The
bargain
Cooper
of
in
plea
voluntariness
a
judicial
or
an error is clerical
of whether
(Tex.Crim.App.
77
S.W.3d
id,.,
law,
matter
but a nunc
of
2001).
statute,
by
A 1977
enacted
modifies,
if
it
improper
granted
before this Court was
Legislature
original judgment
alters the
changes, or
authority, provided
rule-making
court,
has the effect of
in
or
pronounced
did
have the
plea-bargain defendant
not
Dickerson,
parte
order.
making a new
Ex
right
to
unless certain conditions
S.W,2d 657, 658 (Tex.Crim.App.1986).
44.02,
were met. Tex.Code CRiM. Proo. art.
Furthermore,
judgments
of
repealed
part by
Act
June
may
by
change
used
court to
R.S.,
§§ 1 & 1985
Leg.,
69th
ch.
reflect what the court believes
record to
Laws
Rule of
Tex. Gen.
2472.6
original pro
40(b)(1)
in the
should have occurred
Appellate
adopted,
Procedure
ceeding.
parte Dopps,
Ex
to a
error
limiting appeals only
“defect or
prior
(Tex.Crim.App.1986).
entry
that occurred
to
of
Parsley,
any criminal
has the
L. Hecht & E. Lee
Proce-
A defendant in
action
3. Nathan
Whither,
Whence and
in Mat-
under the rules hereinafter
dural Reform:
C.L.E.,
Practicing
however,
provided,
prescribed;
Law
thew Bender
Under
at
1-12
Appellate
upon
been
defendant who has
convicted
Procedure
New Rules of
(Nov. 1997),
1.02(b)
(c)
§
&
available
plea
guilty
plea
his
or
of nolo
either
http://www.supreme.courts.state.tx.us/rules/
court,
the court and the
contendere before
tdr/history.htm.
defendant,
upon the
assesses
election of
punishment
punishment
and the
does
1.02(c).
§at
by
punishment
exceed the
recommended
agreed
by
defen-
prosecutor
and
indicated, all references to
5. Unless otherwise
attorney may prosecute
and his
his
dant
Appellate
Rules of
Rules refer to
Texas
permission
the trial
appeal, he must have
Procedure.
court, except
have
those
which
on
matters
by
prior
motion filed
been raised written
44.02
the Code of Crimi-
6. Former article
read,
part:
pertinent
nal
trial.
Procedure
Tex.R.App.
(1986)
40(b)(1)
(re-
statute,
P.
Code of Criminal Procedure
plea.”
art.
1997).
(Pas.
changed again
The rule was
pealed
provided:
Dig.),
limiting appeals
plea-bargain
Where,
whatever,
cause
a ver-
returning
similar
language
cases and
returned,
dict of conviction has been
and
origin.”
its
“statute
there is a
failure
enter
Cooper, 45
at 79.
determined
We
pronounce
term,
during
sentence
Legislature
the statute
enacted
judgment may be entered and sentence
prohibited appeals
the voluntariness of a
pronounced
succeeding
next
term
felony
Id. at
guilty plea in
cases.
court,
of the
unless a new trial has been
Thus,
rule-making authority
our
did “not
granted,
arrested,
or the
or an
enlarging
extend
appeal has
taken.
been
this fashion.” Id.
current version of the distinguished
The decision
holding
our
rule is quite similar:
“Unless
(Tex.
in Flowers v.
S.W.2d 131
granted
court has
or
new trial
arrested
Crim.App.1996), which was decided under
judgment,
unless
the defendant has
former Rule of
Procedure
appealed,
failure
render
40(b)(1).7 The Flowers
viewed the
pronounce sentence
be corrected at
history
appellate right
to raise the
any time by the court’s
so.”
doing
Tex.
guilty
held that
plea
voluntariness of
R.App.P. 23.1.
*6
40(b)(1)
“neither Rule
nor
Court’s in
terpretation
modify,
of that rule
en
IV.
PRO
NUNC
TUNC JUDGMENT
large, or
Id.
abridge
right.”
at 134
CASELAW
22.108(a)).
§
(citing Tex. Gov’t Code
Appeals
A. Court of Criminal
Cooper,
“ironically,”
this Court noted that
holding
the
in Flowers modified and en
adoption
Prior to the
of the Rules of
larged
the
the 1977
appar-
Procedure
it was
prohibited appeals
statute
of this sort.
from our
appellants
ent
caselaw that
had a
Cooper,
at
right to
nunc
pro
judgments.
tunc
example,
For
in Shaw v.
Unlike the
at
Cooper,
rule
issue in
(Tex.Crim.App.1976),
we allowed the
pro
nunc
tune
has
limited an
statute
never
appellant to
pro
judg-
nunc
tunc
appellant’s right
pro
a nunc
by
ment entered
the trial
example,
parte
For
in Ex
court. Shaw
Beard,
plea
guilty
entered a
of
Tex.
1874 WL
and executed a
(Tex.1874),
of
Supreme
sentencing.
victed must be
past,
in the
we
judgments
represented
present
hearing
availability
directly addressed the
have not
of law.
process
to afford him due
counsel
a nunc
appeal of
of a defendant’s
adoption
the 1986
judgment since
*7
Similarly,
Hughes,
v.
Homan
Appellate
Rules of
Procedure.8
we held
(Tex.Crim.App.1986),
S.W.2d
au-
not have the
that the trial court did
Appeals
B.
of
Courts
to
applicant’s request
the
thority to refuse
Id. at
judgment.
tunc
pro
a nunc
inconsistently ap
appeals have
Courts of
ap-
the
452. This Court determined
rule,
tunc
which neces
plied
pro
the nunc
a nunc
attempting
plicant was
of this case. For exam
sitates our review
underlying
not
pro
judgment,
tunc
Appeals
of
relied on
the Third Court
ple,
conviction; thus,
pro-
his
was
prior
adoption
to the
body
our
of caselaw
given
applicant
hibited.
Id. The
was
Procedure to
of the Rules of
hearing,
at a
opportunity
present
to be
a
right
support
appellant’s
Howev-
required by Shaw.
Id. at 451.
as
Curry,
judgment.
parte
Ex
pro
tunc
error,
er,
that,
despite
we determined
1986, no
(Tex.App.-Austin
motion for of nunc ment, alleging jury had affirma V. APPLICATION tively appellant found that the used Appeals’s Holding A. Court weapon during deadly the commission 2009, 23, June which On manslaughter, Appellant would make her no filed a tice ineligible parole. Id. The trial of the court third nunc judgment, entered which was entered on June 2009. The appellant Appeals ordered return to Fifth Court of custo ruled dy. jurisdiction She that it did not have appealed entry because his of appeal notice and filed an due on or appli corpus August thirty cation days for writ of habeas to re from the date quest post that she that his sentence imposed open be allowed to bond. on burglary Id. at court 879-80. of a habitation case. Blanton, *2-3, 2010 WL at of Appeals The Third Court examined Tex.App. LEXIS *6. The court appellant right whether the had a appeals rejected Appellant’s argument that peal judgment. Id. at jurisdiction court had over 880. Relying primarily reasoning on our under Texas of Appellate Rule Procedure Shaw 23.1, because was attempting he to correct that, Curry although court determined an error in the trial court’s 1988 nunc appellant right had waived her to appeal *2, Id. at Tex.App. conviction, the original this waiver did not LEXIS at *4. The court of appeals affect her the nunc Appellant’s did not address contention that tunc judgment. Curry, 712 25.2,9 Rule which describes defendant’s acknowledged 880-81. that the appeal, apply did not to his appeal legal effect a nunc validity because he was challenging the original relates back to the date of judgment, than rather (citing conviction. Id. at 880 Alvarez *2, underlying conviction. Id. at 615). Nevertheless, Tex.App. LEXIS at *5. that, Third of Appeals held under *8 Shaw, appellant’s right appeal Fifth The Court of on Appeals relied State, nunc pro cannot v. be Rodarte 109-10 events, abridged by such as the waiver of (Tex.Crim.App.1993), which involved appeal, place took before the imposed by order time limits the former version 26.2(a)(1).10 Blanton, was entered. Id. of Rule 2010 WL 25.2(a)(2) 9. by prosecutor agreed by Rule reads: mended and may appeal the defendant —a defendant A in right a criminal case has the only: appeal of Code under of Criminal Proce- (A) by those matters that were raised writ- dure article and 44.02 these rules. The trial, ten motion on filed ruled trial court shall enter a certification of the or right appeal defendant's of each time it (B) getting permission after the trial court's guilt appeal- enters of or other appeal. is, plea bargain able order. In a case—that 41(b)(1): P. Tex.R.App. plea in which a case defendant’s was guilty punish- or perfect Appeal. nolo contendere and the Appeal perfected Time to is did punishment thirty ment not exceed the recom- when notice of is filed within 902 law, *2-3, by precluded is Tex.App. 2010 LEXIS whether Rodarte, by is authorized appellant but whether *4-7. In Const, V, (citing art. law.” Id. thirty-one days after the
filed his Tex. 6(a)). court, § open Appellate in The Rules of Procedure imposed judgment was jurisdiction of the signed. do not determine the thirty after the was days rather, appeals; they provide courts of Id. at 108-09. determined We litigants must follow calculating procedures for the timeliness starting point jurisdiction invoke the on the order to begins of an conviction State, imposed open appeals. courts of Olivo the sentence is day that ap- (Tex.Crim.App.1996). The 109-10. court of S.W.2d court. Id. at provided that Rodarte peals determined timely appeal is neces A notice of jurisdic- dismissal for want of the basis for jurisdiction. sary appellate to invoke Appellant’s tion notice because (Tex. Shute v. S.W.2d twenty-one years than after was filed more cases, a de In criminal Crim.App.1988). in open court. imposed his sentence if it is timely notice of is fendant’s day after sen days filed “within B. Jurisdiction imposed suspended open tence or ap argues that the court of Appellant court, en day or after the the trial court peals “regular jurisdiction” review Tex.R.App. P. appealable ters an order.” 44.02,11which ad his under Article 26.2(a)(1). appeal, be dresses a defendant’s Abbott, hearing punishment new consti cause each in the case after appellant’s was ordered appealable order. The separate, tutes a appeal. placed Id. at 695. Abbott was 23.1, describing Rule State counters that supervision re- community on with the provide does not judgments, custody he remain in quirement that first jurisdiction holding because our Abbott Id. He filed a seek- days. motion (Tex. 696-97 days ing credit for the 180 he served time statutory author Crim.App.2008), requires The trial prior under his sentence. appeal, plain and the ization for direct motion, appealed. his court denied he words of Rule 23.1 do include court Id. at We determined that the appeal. appeals should have dismissed jurisdiction peal standard determine for lack Id. at jurisdiction authorized law. appellate whether an has cited Article 44.02 and Rule a case “is not 697. We to hear and determine (fifteen State) days plea guilty plea or of nolo by the the sentence either his court, suspended open imposed court or before the court and the contendere *9 appealable signed by day defendant, an order is the the upon assesses the election of judge; except, if a motion for new trial punishment punishment and does filed, appeal shall filed notice of within by punishment recommended exceed days imposed ninety sentence is or agreed by the defen- prosecutor open suspended in court. attorney may prosecute dant his his appeal, permission the trial he must have Article 44.02 Code of Criminal Procedure court, except have on those matters which provides: by prior to written motion filed been raised any A in has the criminal action way appeals This article in no affects trial. right under rules hereinafter pursuant chapter. to Article 44.17 however, prescribed, provided, before the upon defendant who has been convicted 25.2(a)(2) appellant to note that an has the power of an appellate court to review that right every case in which the judgment.14 guilt trial court enters a or an The dissent disputes the right appealable However, order. we held pro nunc tunc judgments based that no constitutional statutory provi- on a statutory lack of authorization. Pre sions authorized an of the trial siding Judge distinguishes Keller ap- post-judgment court’s denying order pealability of pro nunc judgments, tunc appellant’s motion for time credit. Id.12 focusing on cases which original by Decisions this Court based on stat judgment was invalid but corrected utes have consistently recognized appel an nunc pro tunc judgment. The dissent lant’s pro a nunc tunc justifies nunc
judgment,
indicating
that nunc
judgments
situations,
in those
but dis
judgments
appealable
are
orders. See Ho-
misses the right
449;
man Hughes,
Shaw v.
judgments
errors,
made to correct clerical
State,
887;
State,
Moore v.
ignoring
recognized
purpose of nunc
878 (Tex.Crim.App.1969);
Fergu
pro tunc judgments.
This distinction
State,
(Tex.Crim.
son v.
stated Appellant’s appeal. ver- first its of language [the of this sense tunc rule that was pro of the nunc sion Bargain Plea D. Effect of to be was meant by Court]
created on the statutes with former coextensive Appellant The contends that State (com- at 201 subject.” same Appellant because right appeal no tunc rule to pro the 1986 paring bargain, and the trial signed plea 42.06). 23.1 statute, Rule article prior of right had “NO Appellant certified appeal for the provide expressly does not 25.2(a)(2)(A-B) provides Rule appeal.” our case- judgments, but tunc bargain case plea that a defendant in a acceptance provid- has Legislative law and that were only “those matters may appeal is Because this Court right.15 ed that filed and ruled on raised written motion modifying abridging or prohibited trial, getting or litigants, we rights of substantive appeal.” Further- permission court’s longer ap- may no appellant that an hold more, if be dismissed appeal must Therefore, judgments. pro tunc peal nunc showing the defendant’s certification appeal- judgments are still of the record. appeal part is not Tex. able orders. R.App. 25.2(d). P. not address appeals The court of did Appeal C. Timeliness Rule 25.2 appeal rights under Appellant’s requires that a criminal Rule 26.2 untime appeal it dismissed the be filed within notice of defendant’s Blanton, 551442, at ly notice. WL day that sentence is days after thirty *2, In his Tex.App. LEXIS *5. court, or open suspended imposed ap to the court of supplemental briefs enters an the trial court day “after the contended that Rule 25.2 peals, Appellant Tex.R.App. P. order.” appealable to his because his apply did not 26.2(a)(1). original Although Appellant’s contesting judg the nunc claim the third imposed sentence was regarding to a claim ment was unrelated was not ordered of his conviction. Id. propriety until June trial court by the did not ap- appeals are Because the court judgments Because nunc issue, orders, certification we remand thirty-day filing peri address the pealable His to consider the following day. appeals to the court of od started arising from the only Appellant’s to issues merits of applies judgment; entry of the third June 2009 nunc of the conviction or it not an plea bargain.
validity of the YI. CONCLUSION appeal- is an A nunc notice of Appellant filed if under Article 44.02 the on June able order third nunc filed his timely Appellant filed. Because thirty days within which was 26.2, 26.2(a)(1). Rule within the time limits of by Rule Court allowed jurisdiction has Appeals the Fifth Court of Appel- should not have dismissed Appeals Appellant’s to consider the merits of the timeliness of his based on lant’s Therefore, we reverse Ap- peal. that the conclude filing. We "Appeals Trial Court aptly From Sec- entitled Notably, Rule 23.1 is located within Procedure, Judgments and Orders.” tion Two of the Rules of
905 that, of appeals says of the court and remand to the The Court cur- our rent rules of appellate procedure appeals court of to consider the merits of a abridge right, substantive we look must appeal. Appellant’s to the statute that was in effect before the of Appellate Rules Procedure were KELLER, P.J., a dissenting filed statute, 42.06, adopted. That Article pro- opinion. vided: JJ., If JOHNSON, there is a failure from any WOMACK and cause pro- whatever to enter judgment and concurred. sentence, judgment may nounce be KELLER, P.J., dissenting. entered and sentence pronounced any at time, subsequent a unless new trial has does a Where defendant’s granted, arrested, been or the judgment peal a nunc pro judgment come or an has been taken. time Any gives good from? The Court never a an- punishment served or suffered from the swer that question because there is time the and sentence should none. have been entered pronounced After defendant has finally been convicted until entered shall be credited process upon finally pronounced.3 and the has sentence direct-appeal been exhausted, only an appellate court can act Nothing in the language provision with a high- accordance a directive from purports to authorize an er or pursuant specific statutory court judgment. And as with the rule, authorization.1 what So statute authorizes appears the statute concerned solely about defendant’s of a nunc the absence of a judgment, though here it is the judgment? failure to “enter” points to Rule of than rather the failure to “ren- Appellate Procedure 23.1: der” judgment that is at issue. the trial court granted Unless has a new long-standing Article 42.06 codified some a judgment, trial or arrested or unless regarding rules what to when trial do appealed, defendant has a failure to has an appealable failed enter render and pronounce sen- judgment. late ear- nineteenth and may be tence corrected at time centuries, ly-to-mid twentieth a criminal doing the court’s so.2 only conviction was if appealable judg- The language of the rule not purport does ment had been entered before the Moreover, grant any appeal. jurisdiction.4 Early court lost peri- the rule concerned with the failure to od, jurisdiction the trial court lost when all; render it nothing at has (1) two events occurred: the defendant do with correcting (2) clerical error in appeal, filed a notice of the court written term in which the notice expired.5 was filed State, State, (1898); 1. v. Skinner 593-94 S.W. Quarles 982 40 (Tex.Crim.App.2010). 353, 354, Tex.Crim. 50 S.W. 457-58 State, (1899); Ray v. 154 Tex.Crim. Tex.R.App. 2. P. 23.1. (1950). 227 (West 3. See Tex.Code Crim. Proc. art. 42.06 Estes, 506-07, 1985). at at Tex.Crim. S.W. 982; Quarles, 40 Tex.Crim. S.W. (1877); Tex.App. Trimble 457-58. 506, 506-07, Estes v. 38 Tex.Crim. *12 906 validly judgment, be entered error in the it is still a valid could not judgment
A
appellate
pending.6
was
If an
appeal
can be
judgment.
judgment
ap-
while
Such
judgment
no
valid
determined
pealed,
appeal
process
and once the
entered,
the
to
been
then
had
had
exhausted, general appellate jurisdiction
Once the
was dis-
be dismissed.7
terminates.12
however,
missed,
the trial court could en-
The cases cited
the
do not
tunc.8 The
ter a valid
Beard,
show otherwise. The Court cites
could then
from nunc
defendant
but that case was one of those discussed
judgment.9
tunc judg-
above which
key
ap-
to
The
defendant’s
complete
ment cured the
failure to enter a
in that situation was that
peal
judgment.13
valid
Homan
Jones
only
judg-
valid
was
judg-
cases each involved a nunc
the defendant could have
ment from which
ment that corrected a mere clerical error
has frequently
“This court
re-
appealed:
judgment,
in an otherwise valid
but nei-
which failed
some
judgments
formed
ther case
an
a nunc
respects to be entered
accordance with
Homan,
judgment:
In
the defen-
verdict,
jury’s
power
to reform
but
dant’s
arose out of
revocation of
power
carry
with it
enter
does
adjudication,
deferred
we decided that
Only
trial court can do
against appealing
the bar
the trial court’s
judgment,
that.”10
a valid
Without
to adjudicate
apply
decision
did not
to a
finally
disposed
had
been
at the
case
claim
the nunc
yet appealable,
trial level and was not
We specifically pointed
invalid.14
be dismissed.11 En-
so
deferred-adjudication
language in the
stat-
cured
try of
ques-
ute that authorized the
problem, enabling
case
Jones,
In
appealed
But when there is a mere clerical
tion.15
the defendant
pealed.
Estes,
506-07,
at
43
6.
38 Tex.Crim.
S.W. at
11. See above.
354,
982; Quarles, 40
at
50 S.W. at
Tex.Crim.
457-58;
366,
Skinner,
Ray,
In connection with statement correction the utter failure enter a would proceeding we “treat” the as judgment.25 valid order, from a we Curry, cites did unam- which Article Kazmir.19 In Kaz- cited 42.06 and hold that biguously ap- a defendant could mir, the mur convicted of peal a nunc order corrects a placed probation, judg der on but a mere Curry clerical error.26 But is a court ment for the conviction was never murder of appeals opinion, and the court of probation entered.20 The defendant’s revoked, peals solely upon upon relied Shaw and subsequently but his revocation a nunc proceeding was dismissed concession State that ferred-adjudication prohibition statute’s 20. 438 S.W.2d 912. against appealing trial court’s decision adjudicate. Mat 450-51. 21. Id. 912. State, (Tex.
16. Jones 200 22. Id. ("On Crim.App.1990) appeal, appellant direct asserted, alia, improper inter that it was 23. Id. probation on to revoke his alleged prior violations to have occurred (We 24. observed that the time limits for February the actual date of filing reporter's clerk’s and court record tunc."). signing expired, record had record had clerk, approved been and filed with (Tex. 17. Shaw v. days thirty allowed defendant to file to the added). Crim.App.1976) (emphasis yet expired.). his brief had not Shaw, 18. Id. at 890. passim. See S.W.2d at (Tex. (citing Curry, Id. at parte 26. Ex Kazmir 1986). (Tex.Crim.App.1969)). App.-Austin S.W.2d 911 validity limited to the appealed.27 order could entry.”34 ultimately the de- We dismissed two other has uncovered My research fendant’s because he had moved for purported involving a defendant’s cases certiorari a notice of but had not entered appeal from a nunc in the record.35 error in the a mere clerical corrects *14 Johnston, the defendant judgment. So, there of au- significant is a amount an nunc file from purported to both thority proposition for the that a defendant application and an pro judgments tunc judgment could a tunc pro nunc both corpus.28 Disposing writ habeas that was to correct trial court’s entered a filings “jointly,” “set then nunc we aside” a previous failure to enter valid the trial court pro judgments tunc circumstances, those Under that giving without the de- had entered them only ap- constituted the defendant’s viable attorney opportunity fendant and his from the case peal his conviction because testimony.29 In present to be and offer was not even until after the appealable Cunningham, original judgment stated pro judgment nunc entered.36 that the defendant had been sentenced contrast, By no cases from this Court no twenty years, two between pear address the issue head-on or from judgment.30 was filed that explicitly hold that a defendant can Later, a was en- pro judgment a judgment from nunc that cor- had been tered show that a rects mere clerical error. And to the twenty years.31 The defen- sentenced to extent that be in- proposition might that than “moved in of Crimi- [the
dant
ambiguous
from
holdings
ferred
Appeals]
requiring
nal
for certiorari
cases,
of our
proposition
some
that
The de-
clerk
forward [the record].”32
supported by any
Allowing
reasoning.
he
fendant claimed that
was entitled
such
conflicts with our cases
entering
only from
order
holding
appellate jurisdiction
general
from the
but also
appeals process
“In
ceases when
from the
responded,
conviction.33 We
cases
any,
as
appeal,
such
this the
conviction is exhausted.37
if
why
27.
Id.
36. This is
the Court is
when it
incorrect
says
statutory
no
"there was
authoriza-
judg-
for the
28.
tion
of the nunc
Johnston v.
Tex.Crim.
823,
(Tex.Crim.App.1958).
ment in the
There
311 S.W.2d
invalid
cases.”
statutory
and is
authorization:
the stat-
judg-
utes that authorize the
29.
Id. at
823-24.
i.e.,
conviction,
ment of
44.02 and its
Article
predecessors.
Cunningham
30.
167 Tex.Crim.
(Tex.Crim.App.
1959).
Moreover,
a nunc
often
judg-
party’s
results from a
motion
enter
can for writ application file an of habeas alleging due-process violation.
corpus at-
We have on occasion addressed claims
tacking tunc orders habeas
applications and have resolved such claims
on the merits.38 Under the hold- Court’s
ing today, such would not even be claims
cognizable on habeas because there would
be an on adequate remedy appeal.39
I respectfully dissent. *15 DELGADO-GUTIERREZ,
Silverio
Appellant, Texas, Appellee. STATE
No. 07-12-0109-CR. Texas, Appeals
Court of
Amarillo,
Panel B.
May Martinez,
David Law Office of David Martinez, Lubbock, appellant. for Hatch, Wally Plainview, Atty., Dist. for appellee. ruling id); judge Dopps, or the it parte entered sua Ex 670-71
sponte. (same). (Tex.Crim.App.1986) Moore, parte 38. Ex 579-80 Townsend, parte 39. Ex (Nunc (Tex.Crim.App.1987) pro tunc order (Tex.Crim.App.2004). adding deadly-weapon finding held inval-