Blanton, Donald Gene, 369 S.W.3d 894

Lead Opinion

OPINION MEYERS, J.,

delivered the opinion of the Court

in which PRICE, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

Appellant appealed the nunc pro tunc judgment of the Kaufman County District Court. The Fifth Court of Appeals dismissed the case for want of jurisdiction after concluding that Appellant failed to file a timely notice of appeal. Blanton v. State, No. 05-09-00758-CR, 2010 WL 551442, at *2-3, 2010 TexApp. LEXIS 1135, at *6-7 (TexApp.-Dallas Feb. 18, 2010, pet. granted) (mem. op., not designated for publication). We granted Appellant’s petition for discretionary review to determine if the court of appeals correctly dismissed the case. We hold that Appellant timely appealed the nunc pro tunc judgment, and accordingly, we remand the case to the court of appeals to consider the merits of Appellant’s appeal.

I. BACKGROUND

A. Trial Court History

This appeal is based upon a nunc pro tunc judgment in cause no. 15,189 for burglary of a habitation.¹ Prior to that charge, in April 1987, Appellant was indicted for burglary of a building in cause no. 15,184. He entered a negotiated plea of guilty and was placed on deferred-adjudication community supervision for five years. A few months later, he violated the terms of his community supervision by entering a habitation with the intent to commit theft. In July 1987, Appellant entered a plea of true at a probation-revocation hearing for the earlier offense, cause no. 15,184, and also entered a negotiated plea in cause no. 15,189, which is the subject of this case. He was sentenced to seven years’ confinement and ordered to pay restitution for each offense.

In August 1988, the trial court realized that the final written judgment for cause no. 15,189 did not include the restitution payment that had been orally ordered in open court. The court entered the first of three nunc pro tunc judgments, adding the amount of restitution that Appellant had been orally ordered to pay by the trial court.

In March 2009, Appellant filed a motion for judgment nunc pro tunc in cause no. 15,189, alleging that the first nunc pro tunc judgment incorrectly entered a conviction for burglary of a habitation, rather than for burglary of a building — which is a less serious offense.

As exhibits for his motion, Appellant attached the judgment and order adjudicating him guilty in cause no. 15,184. However, the tops of the documents showing the cause number were cut off. He also attached copies of his plea agreement and the first nunc pro tunc judgment from cause no. 15,189. He alleged that he had been convicted of only one burglary charge, burglary of a building, and that all of the exhibits concerned that charge.

In response to Appellant’s motion, the trial court entered a second nunc pro tunc judgment in cause no. 15,189, which superseded the first. It changed the offense and the degree of the conviction and modified the date of the offense from July 13, 1987, to April 26, 1987, which was the date that the first offense, cause no. 15,184, occurred.

The State did not appeal the second nunc pro tunc judgment, but the court discovered the issues with Appellant’s exhibits and entered the third nunc pro tunc judgment in cause no. 15,189, which is the basis for Appellant’s appeal in this case. The third nunc pro tunc judgment was entered on June 12, 2009, without a hearing, but Appellant was notified of the order via an explanatory letter from the district clerk.

The third nunc pro tunc judgment was entered in cause no. 15,189 to correct the offense from burglary of a building to burglary of a habitation and to change the degree of the offense to a first-degree felony. The order tracked the first nunc pro tunc judgment from cause no. 15,189, but included the date of the offense as April 26, 1987, which is the date of the burglary of a building in cause no. 15,184, rather than July 16,1987, which is the date the burglary of a habitation occurred. Cause no. 15,189 is the case at issue here.

B. Appellate History

Appellant appealed the trial court’s third nunc pro tunc judgment on June 23, 2009. The trial court filed a certification with the Fifth Court of Appeals, showing that Appellant had no right to appeal because his conviction arose from a plea bargain.

The Fifth Court of Appeals dismissed Appellant’s appeal, holding that he failed to timely file a notice of appeal. Blanton, 2010 WL 551442, at *2, *2-3, 2010 Tex. App. LEXIS 1135, at *4, *6. The court determined that Appellant’s appeal was due on or before August 23, 1987, which is thirty days after his sentence was imposed in cause no. 15,189. Id.

Appellant filed a petition for discretionary review, asking us to determine whether the court of appeals correctly ruled that Rule 23.1² “does not grant any additional jurisdiction for this Court to review the June 12, 2009, nunc pro tunc proceeding.”

II. NUNC PRO TUNC JUDGMENTS

The purpose of a nunc pro tunc judgment is to provide a method for trial courts to correct the record when there is a discrepancy between the judgment as pronounced in court and the judgment reflected in the record. Collins v. State, 240 S.W.3d 925, 928 (Tex.Crim.App.2007); Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim.App.1980); see Tex.R.App. P. 28.1. The corrections must reflect the judgment that was actually rendered but that for some reason was not properly entered into the record at the time of the judgment. Jones v. State, 795 S.W.2d 199, 200 (Tex. Crim.App.1990).

Corrections to the record are limited to clerical errors and are not appropriate for errors involving judicial reasoning. Ex parte Poe, 751 S.W.2d 873, 876 (Tex.Crim.App.1988). The determination of whether an error is clerical or judicial is a matter of law, id,., but a nunc pro tunc judgment is improper if it modifies, changes, or alters the original judgment pronounced in court, or has the effect of making a new order. Ex parte Dickerson, 702 S.W,2d 657, 658 (Tex.Crim.App.1986). Furthermore, nunc pro tunc judgments may not be used by a court to change the record to reflect what the court believes should have occurred in the original proceeding. Ex parte Dopps, 723 S.W.2d 669, 671 (Tex.Crim.App.1986).

III. RULES OF APPELLATE PROCEDURE

This Court was granted rule-making authority to promulgate “rules of posttrial, appellate, and review procedure in criminal cases,” but the rules “may not abridge, enlarge, or modify the substantive rights of a litigant.” Tex. Gov’t Code § 22.108(a). The Texas Rules of Appellate Procedure were originally adopted in 1986.³ The current Rules of Appellate Procedure were promulgated in 1997 in order to improve the efficiency and practice of appellate law.⁴ Rule 23.1 is the current rule regarding nunc pro tunc judgments.⁵

Impact of § 22.108(a)

This Court analyzed the effect of Tex. Gov’t Code § 22.108(a) on the appeal of the voluntariness of a plea bargain in Cooper v. State, 45 S.W.3d 77 (Tex.Crim.App.2001). A 1977 statute, enacted by the Legislature before this Court was granted rule-making authority, provided that a plea-bargain defendant did not have the right to appeal unless certain conditions were met. Tex.Code CRiM. Proo. art. 44.02, repealed in part by Act of June 14, 1985, 69th Leg., R.S., ch. 685, §§ 1 & 4, 1985 Tex. Gen. Laws 2472.⁶ In 1986, Rule of Appellate Procedure 40(b)(1) was adopted, limiting appeals only to a “defect or error that occurred prior to the entry of the plea.” Tex.R.App. P. 40(b)(1) (1986) (repealed 1997). The rule was changed again in 1997, limiting appeals in plea-bargain cases and returning to language similar to the 1977 “statute that was its origin.” Cooper, 45 S.W.3d at 79. We determined that the statute enacted by the Legislature prohibited appeals of the voluntariness of a guilty plea in felony cases. Id. at 81. Thus, our rule-making authority did “not extend to enlarging the right of appeal in this fashion.” Id.

The decision distinguished our holding in Flowers v. State, 935 S.W.2d 131 (Tex.Crim.App.1996), which was decided under former Rule of Appellate Procedure 40(b)(1).⁷ The Flowers Court viewed the history of the appellate right to raise the voluntariness of a guilty plea and held that “neither Rule 40(b)(1) nor this Court’s interpretation of that rule may modify, enlarge, or abridge that right.” Id. at 134 (citing Tex. Gov’t Code § 22.108(a)). In Cooper, this Court noted that “ironically,” the holding in Flowers modified and enlarged the right to appeal because the 1977 statute prohibited appeals of this sort. Cooper, 45 S.W.3d at 81.

Unlike the rule at issue in Cooper, a nunc pro tune statute has never limited an appellant’s right to appeal a nunc pro tunc judgment. For example, in Ex parte Beard, 41 Tex. 234, 236, 1874 WL 8035, 1874 LEXIS 135 (Tex.1874), the Supreme Court of Texas noted that “the defendant appealed from the judgment nunc pro tunc so rendered,” demonstrating an appellant’s right to appeal under the statute in effect at the time. The nunc pro tunc statute, Code of Criminal Procedure art. 3151 (Pas. Dig.), provided:

Where, from any cause whatever, a verdict of conviction has been returned, and there is a failure to enter judgment and pronounce sentence during the term, the judgment may be entered and sentence pronounced at the next succeeding term of the court, unless a new trial has been granted, or the judgment arrested, or an appeal has been taken.

The current version of the nunc pro tunc rule is quite similar: “Unless the trial court has granted a new trial or arrested the judgment, or unless the defendant has appealed, a failure to render judgment and pronounce sentence may be corrected at any time by the court’s doing so.” Tex. R.App. P. 23.1.

IV. NUNC PRO TUNC JUDGMENT CASELAW

A. Court of Criminal Appeals

Prior to the adoption of the Rules of Appellate Procedure in 1986, it was apparent from our caselaw that appellants had a right to appeal nunc pro tunc judgments. For example, in Shaw v. State, 539 S.W.2d 887 (Tex.Crim.App.1976), we allowed the appellant to appeal a nunc pro tunc judgment entered by the trial court. Shaw entered a plea of guilty and executed a waiver of appeal after sentencing. Id. at 888. He was sentenced to one year in prison, but was out of custody on bond pending disposition of the appeal. Id. at 889. However, the record mistakenly showed that the appellant had been incarcerated continuously since sentencing. Id. at 890. After his appeal was denied, the trial court ordered that Shaw be incarcerated. Id. at 889. The Texas Department of Corrections refused to accept custody of the appellant because the record before it erroneously indicated that he had discharged his sentence. Id.

The trial court conducted a hearing and entered a nunc pro tunc judgment to correct the sentencing record with the actual amount of time credit earned by Shaw. Id. He appealed the nunc pro tunc judgment, and we held that the trial court did not abuse its discretion and had the right to correct the record “to reflect the truth even though the findings might not be beneficial to the person convicted.” Id. at 890. We also stated that before any unfavorable nunc pro tunc judgments are entered against a defendant, the person convicted must be given the opportunity to be present for a hearing and represented by counsel to afford him due process of law. Id.

Similarly, in Homan v. Hughes, 708 S.W.2d 449 (Tex.Crim.App.1986), we held that the trial court did not have the authority to refuse the applicant’s request to appeal a nunc pro tunc judgment. Id. at 452. This Court determined that the applicant was attempting to appeal a nunc pro tunc judgment, not the underlying conviction; thus, his appeal was not prohibited. Id. The applicant was not given the opportunity to be present at a hearing, as required by Shaw. Id. at 451. However, we determined that, despite this error, the trial court properly changed the order, making a hearing a “useless task.” Id. at 454-55.

The continued validity of our pre-Rule 23.1 caselaw is shown in Jones, 795 S.W.2d at 203, a 1990 case, in which we held that the date of the conviction is the date of the original judgment, not the date a nunc pro tunc judgment is entered. The decision came after the adoption of the Rules of Appellate Procedure in 1986 (under former Rule 36(a)), but before the current revisions, which did not make substantive changes. Tex.R.App. P. 23 (West 2012). We maintained that it was apparent from the sense of the language of the 1986 nunc pro tunc rule “that the rule was meant to be coextensive with former statutes on the same subject.” Jones, 795 S.W.2d at 201. Accordingly, our body of caselaw construing the nunc pro tunc statutes should have “continued vitality” under the current version of the nunc pro tunc rule because the language of the rule did not change substantially. jSee id.

Although we have allowed appeals of nunc pro tunc judgments in the past, we have not directly addressed the availability of a defendant’s appeal of a nunc pro tunc judgment since the 1986 adoption of the Rules of Appellate Procedure.⁸

B. Courts of Appeals

Courts of appeals have inconsistently applied the nunc pro tunc rule, which necessitates our review of this case. For example, the Third Court of Appeals relied on our body of caselaw prior to the adoption of the Rules of Appellate Procedure to support an appellant’s right to appeal a nunc pro tunc judgment. Ex parte Curry, 712 S.W.2d 878 (Tex.App.-Austin 1986, no pet.). The appellant was convicted of voluntary manslaughter and sentenced to prison for five years. Id. at 879. She waived her right to appeal the conviction and surrendered herself to the Department of Corrections. Id. at 879. After her release on parole, the State filed a motion for entry of a nunc pro tunc judgment, alleging that the jury had affirmatively found that the appellant had used a deadly weapon during the commission of the manslaughter, which would make her ineligible for parole. Id. The trial court entered the nunc pro tunc judgment and ordered that the appellant return to custody. Id. She appealed the entry of the nunc pro tunc judgment and filed an application for a writ of habeas corpus to request that she be allowed to post bond. Id. at 879-80.

The Third Court of Appeals examined whether the appellant had a right to appeal the nunc pro tunc judgment. Id. at 880. Relying primarily on our reasoning in Shaw v. State, 539 S.W.2d 887, the Curry court determined that, although the appellant had waived her right to appeal the original conviction, this waiver did not affect her right to appeal the nunc pro tunc judgment. Curry, 712 S.W.2d at 880-81. The court acknowledged that the legal effect of a nunc pro tunc judgment relates back to the date of the original conviction. Id. at 880 (citing Alvarez v. State, 605 S.W.2d 615). Nevertheless, the Third Court of Appeals held that, under Shaw, the appellant’s right to appeal a nunc pro tunc judgment cannot be abridged by events, such as the waiver of appeal, that took place before the order was entered. Id.

Here, the Fifth Court of Appeals came to a different conclusion.

V. APPLICATION

A. Court of Appeals’s Holding

On June 23, 2009, Appellant filed a notice of appeal of the third nunc pro tunc judgment, which was entered on June 12, 2009. The Fifth Court of Appeals ruled that it did not have jurisdiction because his notice of appeal was due on or before August 23, 1987, thirty days from the date that his sentence was imposed in open court on the burglary of a habitation case. Blanton, 2010 WL 551442, at *2-3, 2010 Tex.App. LEXIS 1135, at *6. The court of appeals rejected Appellant’s argument that the court had jurisdiction over the appeal under Texas Rule of Appellate Procedure 23.1, because he was attempting to correct an error in the trial court’s 1988 nunc pro tunc judgment. Id. at *2, 2010 Tex.App. LEXIS 1135, at *4. The court of appeals did not address Appellant’s contention that Rule 25.2,⁹ which describes a defendant’s right to appeal, did not apply to his appeal because he was challenging the validity of the nunc pro tunc judgment, rather than the underlying conviction. Id. at *2, 2010 Tex.App. LEXIS 1135, at *5.

The Fifth Court of Appeals relied on Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex.Crim.App.1993), which involved the time limits imposed by the former version of Rule 26.2(a)(1).¹⁰ Blanton, 2010 WL 551442, at *2-3, 2010 Tex.App. LEXIS 1135, at *4-7. In Rodarte, the appellant filed his appeal thirty-one days after the judgment was imposed in open court, and thirty days after the judgment was signed. Id. at 108-09. We determined that the starting point for calculating the timeliness of an appeal of a conviction begins on the day that the sentence is imposed in open court. Id. at 109-10. The court of appeals determined that Rodarte provided the basis for dismissal for want of jurisdiction because Appellant’s notice of appeal was filed more than twenty-one years after his sentence was imposed in open court.

B. Appellate Jurisdiction

Appellant argues that the court of appeals had “regular jurisdiction” to review his appeal under Article 44.02,¹¹ which addresses a defendant’s right to appeal, because each nunc pro tunc judgment constitutes a separate, appealable order. The State counters that Rule 23.1, describing nunc pro tunc judgments, does not provide jurisdiction because our holding in Abbott v. State, 271 S.W.3d 694, 696-97 (Tex.Crim.App.2008), requires statutory authorization for direct appeal, and the plain words of Rule 23.1 do not include a right to appeal.

The standard to determine whether an appellate court has jurisdiction to hear and determine a case “is not whether the appeal is precluded by law, but whether the appeal is authorized by law.” Id. (citing Tex. Const, art. V, § 6(a)). The Rules of Appellate Procedure do not determine the jurisdiction of the courts of appeals; rather, they provide procedures that litigants must follow in order to invoke the jurisdiction of the courts of appeals. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App.1996).

A timely notice of appeal is necessary to invoke appellate jurisdiction. Shute v. State, 744 S.W.2d 96, 97 (Tex.Crim.App.1988). In criminal cases, a defendant’s notice of appeal is timely if it is filed “within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order.” Tex.R.App. P. 26.2(a)(1).

In Abbott, a new punishment hearing was ordered in the appellant’s case after an appeal. Id. at 695. Abbott was placed on community supervision with the requirement that he first remain in custody for 180 days. Id. He filed a motion seeking time credit for the 180 days he served under his prior sentence. Id. The trial court denied his motion, and he appealed. Id. at 696. We determined that the court of appeals should have dismissed the appeal for lack of jurisdiction because the appeal was not authorized by law. Id. at 697. We cited Article 44.02 and Rule 25.2(a)(2) to note that an appellant has the right to appeal in every case in which the trial court enters a judgment of guilt or an appealable order. Id. However, we held that no constitutional or statutory provisions authorized an appeal of the trial court’s post-judgment order denying the appellant’s motion for time credit. Id.¹²

Decisions by this Court based on statutes have consistently recognized an appellant’s right to appeal a nunc pro tunc judgment, indicating that nunc pro tunc judgments are appealable orders. See Ho-man v. Hughes, 708 S.W.2d 449; Shaw v. State, 589 S.W.2d 887; Moore v. State, 446 S.W.2d 878 (Tex.Crim.App.1969); Ferguson v. State, 367 S.W.2d 695 (Tex.Crim.App.1963); Johnston v. State, 168 Tex.Crim. 79, 323 S.W.2d 449 (1959); Cunningham v. State, 167 Tex.Crim. 641, 322 S.W.2d 538 (1959); Ex parte Beard, 41 Tex. 234.¹³ Furthermore, we continued to authorize jurisdiction for appeals of nunc pro tunc judgments after the first adoption of the Rules of Appellate Procedure. See Jones v. State, 795 S.W.2d 199.

The State argues that the lack of statutory authorization shows that nunc pro tunc judgments are not appealable. This conclusion would alter the rights of appellants, who had the right to appeal nunc pro tunc judgments before the adoption of the Rules of Appellate Procedure. The focus of the nunc pro tunc statutes has been on the power of the trial court to enter a nunc pro tunc judgment, not the power of an appellate court to review that judgment.¹⁴

The dissent disputes the right to appeal nunc pro tunc judgments based on a lack of statutory authorization. Presiding Judge Keller distinguishes the ap-pealability of nunc pro tunc judgments, focusing on cases in which the original judgment was invalid but corrected by a nunc pro tunc judgment. The dissent justifies the appeal of nunc pro tunc judgments in those situations, but dismisses the right to appeal nunc pro tunc judgments made to correct clerical errors, ignoring the recognized purpose of nunc pro tunc judgments. This distinction does not hold up given that there was no statutory authorization for the appeal of the nunc pro tunc judgment in the invalid judgment cases relied upon by the dissent, yet appeal was allowed in those instances. The dissent also contends that Appellant could file an application for writ of habeas corpus. Habeas corpus relief is an extraordinary remedy, and should be reserved for cases in which no other remedy is available. Here, there is a judicially-recognized legal remedy available — appeal.

The Texas Legislature did nothing to call our interpretation of the various nunc pro tunc statutes into question before the adoption of the Rules of Appellate Procedure, indicating its endorsement of appellate jurisdiction. As we stated in Jones, “It is apparent from the sense of this language that [the first version of the nunc pro tunc rule that was created by this Court] was meant to be coextensive with former statutes on the same subject.” 795 S.W.2d at 201 (comparing the 1986 nunc pro tunc rule to the prior statute, article 42.06). Rule 23.1 does not expressly provide for the appeal of nunc pro tunc judgments, but our case-law and Legislative acceptance has provided that right.¹⁵ Because this Court is prohibited from modifying or abridging the substantive rights of litigants, we may not hold that an appellant may no longer appeal nunc pro tunc judgments. Therefore, nunc pro tunc judgments are still appeal-able orders.

C. Timeliness of Appeal

Rule 26.2 requires that a criminal defendant’s notice of appeal be filed within thirty days after the day that sentence is imposed or suspended in open court, or “after the day the trial court enters an appealable order.” Tex.R.App. P. 26.2(a)(1). Although Appellant’s original sentence was imposed in 1987, the third nunc pro tunc judgment was not ordered by the trial court until June 12, 2009. Because nunc pro tunc judgments are ap-pealable orders, the thirty-day filing period started the following day. His appeal applies only to issues arising from the entry of the third nunc pro tunc judgment; it is not an appeal of the conviction or the validity of the plea bargain.

Appellant filed notice of appeal of the third nunc pro tunc judgment on June 28, 2009, which was within the thirty days allowed by Rule 26.2(a)(1). The Court of Appeals should not have dismissed Appellant’s appeal based on the timeliness of his filing. We conclude that the Court of Appeals had jurisdiction to consider the merits of Appellant’s appeal.

D. Effect of Plea Bargain

The State contends that Appellant had no right to appeal because Appellant signed a plea bargain, and the trial court certified that Appellant had “NO right of appeal.” Rule 25.2(a)(2)(A-B) provides that a defendant in a plea bargain case may appeal only “those matters that were raised by written motion filed and ruled on before trial, or after getting the trial court’s permission to appeal.” Furthermore, an appeal must be dismissed if the certification showing the defendant’s right to appeal is not part of the record. Tex. R.App. P. 25.2(d).

The court of appeals did not address Appellant’s appeal rights under Rule 25.2 because it dismissed the appeal for untimely notice. Blanton, 2010 WL 551442, at *2, 2010 Tex.App. LEXIS 1185, *5. In his supplemental briefs to the court of appeals, Appellant contended that Rule 25.2 did not apply to his appeal because his claim contesting the nunc pro tunc judgment was unrelated to a claim regarding the propriety of his conviction. Id.

Because the court of appeals did not address the certification issue, we remand to the court of appeals to consider the merits of Appellant’s right to appeal the June 12, 2009 nunc pro tunc judgment.

YI. CONCLUSION

A nunc pro tunc judgment is an appeal-able order under Article 44.02 if the appeal is timely filed. Because Appellant filed his appeal within the time limits of Rule 26.2, the Fifth Court of Appeals has jurisdiction to consider the merits of Appellant’s appeal. Therefore, we reverse the judgment of the court of appeals and remand to the court of appeals to consider the merits of Appellant’s appeal.

KELLER, P.J., filed a dissenting opinion. WOMACK and JOHNSON, JJ., concurred.

Notes

1 . Tex. Penal Code § 30.02:

(c) Except as provided in Subsection (d), an offense under this section is a:

(1) state jail felony if committed in a building other than a habitation: or

(2) felony of the second degree if committed in a habitation.

(d) An offense under this section is a felony of the first degree if:

(1) the premises are a habitation; and

(2) any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft.

2 . Rule of Appellate Procedure 23.1 states: Unless the trial court has granted a new trial or arrested the judgment, or unless the defendant has appealed, a failure to render judgment and pronounce sentence may be corrected at any time by the court's doing so.

3 . Nathan L. Hecht & E. Lee Parsley, Procedural Reform: Whence and Whither, in Matthew Bender C.L.E., Practicing Law Under the New Rules of Appellate Procedure 1-12 at § 1.02(b) & (c) (Nov. 1997), available at http://www.supreme.courts.state.tx.us/rules/ tdr/history.htm.

4 . Id. at § 1.02(c).

5 . Unless otherwise indicated, all references to Rules refer to the Texas Rules of Appellate Procedure.

6 . Former article 44.02 of the Code of Criminal Procedure read, in pertinent part:

A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed; provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.

7 . "The holding of Flowers could be justified by the language of former Rule 40(b)(1), which specifically limited only appeals of a 'defect or error that occurred prior to the entry of the plea.’ Because the defect or error of an involuntary plea of guilty occurs at the entry of the plea, not before, the former rule did not seem to apply to an appeal of voluntariness. But, despite its language, the former rule had been construed to apply to an appeal of 'any matter in the case,’ regardless of whether the matters were 'defects or errors that occur before or after the entry of the plea.'" Cooper, 45 S.W.3d at 79 n. 3 (citing Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.1994)).

8 . This Court recently held that the State may appeal a nunc pro tunc judgment through Code of Criminal Procedure Article 44.01. Collins v. State, 240 S.W.3d 925 (Tex.Crim.App.2007).

9 . Rule 25.2(a)(2) reads:

A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal each time it enters a judgment of guilt or other appeal-able order. In a plea bargain case — that is, a case in which a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial, or

(B) after getting the trial court's permission to appeal.

10 . Tex.R.App. P. 41(b)(1):

Time to perfect Appeal. Appeal is perfected when notice of appeal is filed within thirty (fifteen by the State) days after the sentence is imposed or suspended in open court or the day an appealable order is signed by the trial judge; except, if a motion for new trial is filed, notice of appeal shall be filed within ninety days after the sentence is imposed or suspended in open court.

11 . Code of Criminal Procedure Article 44.02 provides:

A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.

12 . The concurring opinion observed that had the appellant timely appealed the trial court's judgment that placed him on community supervision, he would have had a valid claim to challenge the requirement that he serve 180 days without receiving time credit for the days he already spent in jail. Id. at 697-98 (Holcomb, J., concurring). Instead, the appellant appealed the post-judgment order denying his motion, which was not authorized by law.

13 . See discussion supra Part IV.A.

14 . See e.g., Tex.Code Crim. Proc. Ann. art. 42.06, which provided in part:

“If there is a failure from any cause whatever to enter judgment and pronounce sentence, the judgment may be entered and sentence pronounced at any subsequent time, unless a new trial has been granted, or the judgment arrested, or an appeal has been taken."

15 . Notably, Rule 23.1 is located within Section Two of the Rules of Appellate Procedure, aptly entitled "Appeals From Trial Court Judgments and Orders.”

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Dissenting Opinion

KELLER, P.J.,

dissenting.

Where does a defendant’s right to appeal a nunc pro tunc judgment come from? The Court never gives a good answer to that question because there is none.

After a defendant has been convicted and the direct-appeal process has been exhausted, an appellate court can act only in accordance with a directive from a higher court or pursuant to specific statutory authorization.¹ So what statute authorizes a defendant’s appeal of a nunc pro tunc judgment? The Court points to Rule of Appellate Procedure 23.1:

Unless the trial court has granted a new trial or arrested a judgment, or unless the defendant has appealed, a failure to render judgment and pronounce sentence may be corrected at any time by the court’s doing so.²

The language of the rule does not purport to grant any right of appeal. Moreover, the rule is concerned with the failure to render judgment at all; it has nothing to do with correcting a clerical error in a written judgment.

The Court says that, because our current rules of appellate procedure may not abridge a substantive right, we must look to the statute that was in effect before the Rules of Appellate Procedure were adopted. That statute, Article 42.06, provided:

If there is a failure from any cause whatever to enter judgment and pronounce sentence, the judgment may be entered and sentence pronounced at any subsequent time, unless a new trial has been granted, or the judgment arrested, or an appeal has been taken. Any time served or punishment suffered from the time the judgment and sentence should have been entered and pronounced and until finally entered shall be credited upon the sentence finally pronounced.³

Nothing in the language of this provision purports to authorize an appeal from a nunc pro tunc judgment. And as with the rule, the statute appears to be concerned solely about the absence of a judgment, though here it is the failure to “enter” judgment rather than the failure to “render” judgment that is at issue.

Article 42.06 codified some long-standing rules regarding what to do when the trial court has failed to enter an appealable judgment. In the late nineteenth and early-to-mid twentieth centuries, a criminal conviction was appealable only if a judgment had been entered before the trial court lost jurisdiction.⁴ Early in that period, the trial court lost jurisdiction when two events occurred: (1) the defendant filed a notice of appeal, and (2) the court term in which the notice was filed expired.⁵ A judgment could not be validly entered while appeal was pending.⁶ If an appellate court determined that no valid judgment had been entered, then the appeal had to be dismissed.⁷ Once the appeal was dismissed, however, the trial court could enter a valid judgment nunc pro tunc.⁸ The defendant could then appeal from the nunc pro tunc judgment.⁹

The key to the defendant’s right to appeal in that situation was that the nunc pro tunc judgment was the only valid judgment from which the defendant could have appealed: “This court has frequently reformed judgments which failed in some respects to be entered in accordance with the jury’s verdict, but the power to reform does not carry with it the power to enter a judgment. Only the trial court can do that.”¹⁰ Without a valid judgment, the case had not been finally disposed of at the trial level and was not yet appealable, and so any appeal had to be dismissed.¹¹ Entry of the nunc pro tunc judgment cured this problem, enabling the case to be appealed. But when there is a mere clerical error in the judgment, it is still a valid judgment. Such a judgment can be appealed, and once the appeal process is exhausted, general appellate jurisdiction terminates.¹²

The cases cited by the Court do not show otherwise. The Court cites Beard, but that case was one of those discussed above in which the nunc pro tunc judgment cured the complete failure to enter a valid judgment.¹³ The Homan and Jones cases each involved a nunc pro tunc judgment that corrected a mere clerical error in an otherwise valid judgment, but neither case was an appeal from a nunc pro tunc judgment: In Homan, the defendant’s appeal arose out of the revocation of deferred adjudication, and we decided that the bar against appealing the trial court’s decision to adjudicate did not apply to a claim that the nunc pro tunc judgment was invalid.¹⁴ We specifically pointed to language in the deferred-adjudication statute that authorized the appeal in question.¹⁵ In Jones, the defendant appealed the revocation of regular probation.¹⁶

In Shaw, which involved the nunc pro tunc correction of the judgment’s inaccurate statement about the defendant’s time credits, this Court said, “We shall treat this as an appeal from a nunc pro tunc order.”¹⁷ We ultimately affirmed the trial court’s order.¹⁸ The use of the word “treat” seems to imply that the Court simply assumed for the sake of argument that the appeal was valid. In any event, it cannot be considered to be a holding of the case when the issue was never discussed, and the actual issue before the court involved another matter. Moreover, the fact that we affirmed the order instead of reversing it means that there was no compelling reason to confront the issue of whether the appeal was authorized in the first place.

In connection with our statement that we would “treat” the proceeding as an appeal from a nunc pro tunc order, we cited Article 42.06 and Kazmir.¹⁹ In Kaz-mir, the defendant was convicted of murder and placed on probation, but a judgment for the murder conviction was never entered.²⁰ The defendant’s probation was subsequently revoked, but his appeal of the revocation proceeding was dismissed “for want of a judgment in the murder case in which the probation was granted.”²¹ After the appeal was dismissed, judgment in the murder case was entered nunc pro tunc.²². The defendant then filed a notice of appeal from the nunc pro tunc judgment bringing “forward all matters raised in the original appeal as well as the nunc pro tunc order entering judgment in this cause.”²³ We dismissed the appeal without prejudice because the trial court had prematurely forwarded the record.²⁴

So Shaw, which involved the correction of a mere clerical error in the judgment, cited only to authority regarding the correction of a complete failure to enter judgment. Shaw made no other attempt to explain why the correction of a clerical error should be treated the same as the correction of the utter failure to enter a valid judgment.²⁵

The Court cites Curry, which did unambiguously hold that a defendant could appeal a nunc pro tunc order that corrects a mere clerical error.²⁶ But Curry is a court of appeals opinion, and the court of appeals relied solely upon Shaw and upon a concession by the State that a nunc pro tunc order could be appealed.²⁷

My research has uncovered two other cases involving a defendant’s purported appeal from a nunc pro tunc judgment that corrects a mere clerical error in the judgment. In Johnston, the defendant purported to file both an appeal from nunc pro tunc judgments and an application for writ of habeas corpus.²⁸ Disposing of both filings “jointly,” we “set aside” then nunc pro tunc judgments because the trial court had entered them without giving the defendant and his attorney the opportunity to be present and offer testimony.²⁹ In Cunningham, the original judgment stated that the defendant had been sentenced to between two and twenty years, and no appeal was filed from that judgment.³⁰ Later, a nunc pro tunc judgment was entered to show that the defendant had been sentenced to twenty years.³¹ The defendant than “moved in [the Court of Criminal Appeals] for certiorari requiring the clerk to forward [the record].”³² The defendant claimed that he was entitled to appeal not only from the order entering judgment nunc pro tunc but also from the conviction.³³ We responded, “In cases such as this the right of appeal, if any, is limited to the validity of the nunc pro tunc entry.”³⁴ We ultimately dismissed the defendant’s appeal because he had moved for certiorari but had not entered a notice of appeal in the record.³⁵

So, there is a significant amount of authority for the proposition that a defendant could appeal a judgment nunc pro tunc that was entered to correct a trial court’s previous failure to enter a valid judgment. Under those circumstances, that appeal constituted the defendant’s only viable appeal from his conviction because the case was not even appealable until after the nunc pro tunc judgment was entered.³⁶ By contrast, no cases from this Court appear to address the issue head-on or to hold explicitly that a defendant can appeal from a nunc pro tunc judgment that corrects a mere clerical error. And to the extent that that proposition might be inferred from the ambiguous holdings in some of our cases, that proposition is not supported by any reasoning. Allowing such an appeal conflicts with our cases holding that general appellate jurisdiction ceases when the appeals process from the conviction is exhausted.³⁷

Appellant is not without a remedy. He can file an application for writ of habeas corpus alleging a due-process violation. We have on occasion addressed claims attacking nunc pro tunc orders in habeas applications and have resolved such claims on the merits.³⁸ Under the Court’s holding today, such claims would not even be cognizable on habeas because there would be an adequate remedy on appeal.³⁹

I respectfully dissent.

1 . Skinner v. State, 305 S.W.3d 593, 593-94 (Tex.Crim.App.2010).

2 . Tex.R.App. P. 23.1.

3 . See Tex.Code Crim. Proc. art. 42.06 (West 1985).

4 . Trimble v. State, 2 Tex.App. 303, 304 (1877); Estes v. State, 38 Tex.Crim. 506, 506-07, 43 S.W. 982, 982 (1898); Quarles v. State, 40 Tex.Crim. 353, 354, 50 S.W. 457, 457-58 (1899); Ray v. State, 154 Tex.Crim. 362, 366, 227 S.W.2d 216, 218 (1950).

5 . Estes, 38 Tex.Crim. at 506-07, 43 S.W. at 982; Quarles, 40 Tex.Crim. at 354, 50 S.W. at 457-58.

6 . Estes, 38 Tex.Crim. at 506-07, 43 S.W. at 982; Quarles, 40 Tex.Crim. at 354, 50 S.W. at 457-58; Ray, 154 Tex.Crim. at 366, 227 S.W.2d at 218.

7 . Trimble, 2 Tex.App. at 304; Estes, 38 Tex. Crim. at 506-07, 43 S.W. at 982; Quarles, 40 Tex.Crim. at 354, 50 S.W. at 457-58; Martin v. State, 154 Tex.Crim. 302, 305, 227 S.W.2d 213, 215-16(1950).

8 . Ex parte Beard, 41 Tex. 234, 236-37 (1874); Rios v. State, 79 Tex.Crim. 89, 91, 183 S.W. 151, 151-52 (1916); Ray, 154 Tex.Crim. at 366, 227 S.W.2d at 218-19; Martin v. State, 154 Tex.Crim. 306, 306-07, 236 S.W.2d 819, 819 (1950).

9 . Rios, 79 Tex.Crim. at 91, 183 S.W. at 151-52; Ray, 154 Tex.Crim. at 366, 227 S.W.2d at 219; Martin, 154 Tex.Crim. at 306-07, 236 S.W.2d at 819.

10 . Martin, 154 Tex.Crim. at 305, 227 S.W.2d at 215-16.

11 . See above.

12 . Skinner, 305 S.W.3d at 593-94.

13 . See 41 Tex. at 235 (judgment was not rendered against the defendant during the term of court in which the trial occurred but was rendered later nunc pro tunc).

14 . Homan v. Hughes, 708 S.W.2d 449, 451-52 (Tex.Crim.App.1986).

15 . Id. at 452 & n. 1 (“Nothing in Art. 42.12, supra, prohibits appeal of matters unrelated to the determination of guilt after a deferred adjudication. In fact, a plain reading of the germane section indicates just the opposite.” In the footnote, the Court set out a portion of Tex.Code Crim. Proc. art. 42.12, § 3d(b)) (emphasis added). Homan was actually a mandamus case, because the trial court entered an order denying a request for appointed counsel despite the defendant's indigent status and refusing to permit appeal on the ground that appeal was barred by the deferred-adjudication statute’s prohibition against appealing the trial court’s decision to adjudicate. Mat 450-51.

16 . Jones v. State, 795 S.W.2d 199, 200 (Tex.Crim.App.1990) ("On direct appeal, appellant asserted, inter alia, that it was improper for the trial court to revoke his probation on violations alleged to have occurred prior to February 10, 1987, the actual date of the signing of the judgment nunc pro tunc.").

17 . Shaw v. State, 539 S.W.2d 887, 888 (Tex.Crim.App.1976) (emphasis added).

18 . Id. at 890.

19 . Id. at 888 (citing Kazmir v. State, 438 S.W.2d 911 (Tex.Crim.App.1969)).

20 . 438 S.W.2d at 912.

21 . Id. at 912.

22 . Id.

23 . Id.

24 . Id. (We observed that the time limits for filing the clerk’s record and court reporter's record had not expired, the record had not been approved and filed with the clerk, and the thirty days allowed to the defendant to file his brief had not yet expired.).

25 . See Shaw, 539 S.W.2d at passim.

26 . Ex parte Curry, 712 S.W.2d 878, 880 (Tex.App.-Austin 1986).

27 . Id.

28 . Johnston v. State, 166 Tex.Crim. 65, 66, 311 S.W.2d 823, 823 (Tex.Crim.App.1958).

29 . Id. at 66, 311 S.W.2d at 823-24.

30 . Cunningham v. State, 167 Tex.Crim. 641, 641, 322 S.W.2d 538, 539 (Tex.Crim.App.1959).

31 . Id. at 642, 322 S.W.2d at 539.

32 . Id.

33 . Id.

34 . Id. at 643, 322 S.W.2d at 540 (emphasis added).

35 . Id.

36 . This is why the Court is incorrect when it says that "there was no statutory authorization for the appeal of the nunc pro tunc judgment in the invalid judgment cases.” There was and is statutory authorization: the statutes that authorize the appeal from a judgment of conviction, i.e., Article 44.02 and its predecessors.

37 . Moreover, a nunc pro tunc judgment often results from a party’s motion to enter judgment nunc pro tunc. A ruling granting or denying a motion is never appealable in the absence of statutory authorization. And if a ruling granting a nunc pro tunc motion is thought to be appealable, there is no'apparent reason that a ruling denying a nunc pro tunc motion should not likewise be appealable. Finally, it would be anomalous to treat the nunc pro tunc judgment as appealable or not, simply on the basis of whether a party moved for the ruling or the judge entered it sua sponte.

38 . Ex parte Moore, 727 S.W.2d 578, 579-80 (Tex.Crim.App.1987) (Nunc pro tunc order adding deadly-weapon finding was held invalid); Ex parte Dopps, 723 S.W.2d 669, 670-71 (Tex.Crim.App.1986) (same).

39 . Ex parte Townsend, 137 S.W.3d 79, 81 (Tex.Crim.App.2004).

Case Details

Case Name: Blanton, Donald Gene

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 27, 2012

Citations: 369 S.W.3d 894; 2012 WL 2400764; 2012 Tex. Crim. App. LEXIS 861; PD-0767-10

Docket Number: PD-0767-10

Court Abbreviation: Tex. Crim. App.