*1 this State to unassigned review fundamen-
tal error: HOMAN, Applicant Elbert E. jurisdiction partic “After attaches to a cause,
ular scope broad review revision has by appellate been asserted HUGHES, Judge, Respondent. Jon Dist. courts of this State4 —one that is still recognized, acknowledged and No. confirmed Legislature. Thus, Article 44.- Texas, Court Criminal 24(b) alludes to judgments and En Banc. orders ‘as law and nature of the case may require,’ and Article 4.25 to rever April upon sals ‘as well as upon law comparison facts.’ For a with former State,
articles see Doyle supra note 4
(Clinton Concurring) notes 5 and 6 and
accompanying So, though text. even en
abling legislation needed, is not we have
it. State, 4 E.g., Moreno v. Tex.Cr.R. (1930): only ‘This court can sit in upon review matters of error either fundamen trial, properly tal upon or which are raised properly brought Id., before us.’ at 653. Doyle See also 631 S.W.2d 739-744 1982) (Clinton (Tex.Cr.App. Concurring); Wil (Tex.Cr.
son v.
625 S.W.2d
333-336
(Clinton
App.1981)
Concurring); Sattiewhite v.
(Tex.Cr.App.
600 S.W.2d
283-284
1980)
(Opinion
Rehearing).”
Carter v.
Applying holding our in Carter to the
instant we find although prior appellant’s
raised petition for dis- review,
cretionary because have we deemed 1.15, supra,
such Article error to be funda-
mental, this has Court to review
it now. Based on our review we find that stipulation of evidence in the instant signature
case does not contain above, judge.
trial As noted this is funda-
mental error and reversal must result. mandated,
Because reversal we do not remaining grounds
address the three granted upon appel-
error which we also petition discretionary
lant’s review. judgments of Appeals
and trial court are reversed and cause
remanded trial court.
TEAGUE, J., judgment concurs in
the Court but would order the of an
acquittal. See Howeth v.
787, (Tex.Cr.App.1983). *2 Huttash, Austin, Atty.,
Robert State’s the State. for OPINION MILLER, Judge.
Applicant invoke seeks to this Court’s original jurisdiction issue to writs of man- pursuant damus and Article certiorari to Sec. 5 of the Article Texas Constitution and 4.04, V.A.C.C.P.
Applicant is presently serving a life sen- Department at the tence Texas of Correc- aggravated tions for the offense rob- bery. Applicant respondent contends that entered a Order and Deferred “Probation Adjudication judg- Pro of Guilt Nunc Tunc” respondent improperly ment in that did so allowing petitioner parte, ex without an opportunity procedural heard. facts are as follow. charged aggravated
Applicant with was alleged robbery been committed on to have August September 1983. On Judge Don visiting was held before County. court of Milam The trial Humble attorney asked State’s whether charge robbery, moved to reduce the responded it did attorney that the State’s appli- not. The trial court ascertained that aggravated robbery, charged cant was with plea. Applicant for his and asked voluntarily pled guilty to the offense of robbery. The also re- record by represented flects that was counsel, trial, right to a jury waived his fully punishment as to admonished possible and the court was not bound Ap- by any the State. recommendation signed confession admit- plicant judicial aggrava- ting of the offense of commission found robbery, subsequently ted and was adjudica- guilty. The trial court deferred supervised pro- placed applicant tion years. The “Pro- period for a of ten bation Adjudica- Order Deferment of bation Leitner, Houston, appli- for James M. clerk, Guilt,” by the court filled out tion cant. affidavit, stated as verified her robbery, Houston, but Doebbler, “aggravated respondent. offense was Ted upon motion grounds concerning the offense was the nunc robbery, reduced to the defendant on trial tunc order and not the for robbery.” guilt. Specifically, the notice of stated: July 26,1984, On the State filed a motion adjudicate guilt; “The Defendant realizes Art. 42.12 amended motion
adjudicate
*3
permit
appeal
was filed on
Sec.
does not
the
October
of
Both
adjudication hearing,
motions referred to the
the
but it is
offense
not the
applicant’s guilt
which
as ag-
was
adjudication hearing
deferred
that the. Defendant
wishes,
gravated robbery.
appeal.
to
The Defendant wishes
appeal
to
the fact
was a
that there
Nunc
On April
respondent entered an
entered,
detriment,
Pro
order
to
Tunc
“Entry of Probation Order and Deferment
hearing
a
without
violation of the due
Adjudication
of
of Guilt Nunc Pro Tunc”
process clause....”
stating that
been
to
brought
had
the
attention
the
original
of
court that the
de-
24, 1985,
May
On
the trial court entered an
adjudication
ferred
order
represented
had
denying applicant’s request
order
for ap-
the
“robbery”
offense to be
when the actu-
peal, because:
al
applicant’s
offense for
which
was
“The Court finds that the Defendant is
“aggravated
deferred
robbery.”
was
The
indigent,
consequence
but that is of no
at
pro
nunc
tunc order contained the follow-
this time because the
further
finds
by the
statement
trial court:
that Art. 42.12 Sec.
bars the De-
“The State has filed a motion to Correct
any
from appealing
fendant
issue to the
the Probation Order and
of
Deferment
appeal.”
Court of
on direct
Adjudication of Guilt Nunc
Tunc.
Pro
Applicant contends
the trial
that
court
having
The court
said
recollection of
entering
pro
erred in
the nunc
tunc order
Order
being
satisfied from its recol-
affording
opportunity
without
him an
lection and from the evidence that
the
present
hearing, represented by
for the
statements on said State’s
con-
motion
counsel,
process
in order to accord him due
cerning said Order as hereinafter set out
law,
of
citing
State,
Shaw v.
539 S.W.2d
true,
opinion
are
is of the
mo-
that said
(Tex.Cr.App.1976). Therefore,
887
the trial
tion of the
granted.”
State should be
court
request
should
have overruled his
changed
order was then
to reflect that
appeal
entry
pro
to
the
tunc
applicant
placed
was
adjudica-
deferred
Applicant requests by application
order.
tion for the
“aggravated
offense of
rob-
mandamus,
for writ
that the trial court
bery.”
be ordered to
its denial
withdraw
of his
Applicant also filed a “MOTION TO SET request
appeal the
entry
pro
to
the nunc
ASIDE JUDGMENT
PRO
NUNC
[sic]
tunc order.
TUNC”,
which was overruled
court
the
May
proceeded
court
applicant
judicial
Since
entered
adjudication hearing,
with an
and revoked
pled
offense,
to
guilty
confession
the
adjudication
same
that
concluding
court was
trial
correct
day. Applicant
found
subsequently
applicant
appeal
that
had no
to
guilty
sen-
robbery and
proceed
court’s determination to
with an
imprisonment
tenced to life
Texas
original
adjudication
guilt on
Department of Corrections.
charge, pursuant
provisions
in Art.
42.12,
3d(b),
23, 1985,
Sec.
See also
On
V.A.C.C.P.
filed a writ-
(Tex.
298
Contreras
645 S.W.2d
ten notice of
and affidavit
indi-
Cr.App.1983);
gency. Anticipating
argument
Richardson
that
(Tex.Cr.App.1981);
Texas Code
S.W.2d 267
Daniels v.
of Criminal Procedure forbade
adjudicate
after the
to
(Tex.Cr.
guilt, appellant
appeal spe-
Joseph
in his notice of
cifically
only App.1981);
stated
Wright
wanted
(Tex.Cr.App.1980). Thus,
appli-
had
also issue writs of mandamus in order to
sought
cant
adjudication
to
protect
jurisdiction. Clawson,
our
supra.
guilt, the trial court
have been au-
would
us,
In the case before
the trial court
thorized
applicant’s request.
to overrule
did not
prohibit appli
have the
appealing,
ground
error,
cant from
as a
Applicant did not seek
entry
pro
the court’s
of a nunc
tunc order.
guilt,
however. We think it
stated,
previously
42.12,
As
supra, pro
Art.
apparent from the
sought
record that he
hibits
of the determination to adjudi
urging
his case
of error
guilt; however,
cate
appeal on other mat
concerned
trial court’s
Thus,
proscribed.
ters is not
a writ of
Nothing
order.
in Art. 42.-
compel
lie in order to
12, supra, prohibits appeal of matters un
trial court
improper
to vacate the
related to the determination of
after a
refusing applicant permission
*4
fact,
adjudication.
plain
In
reading
germane
of the
party may
section indicates
A
obtain a writ of mandamus
just
opposite.1
prohibition
If there is a
if he
requirements:
can establish two
against appealing a conviction that
in
sought
compelled
the act
purely
to be
'is
posture
case,
present
ministerial,
it must arise
and that he has no other ade-
44.02,
from some other source such
quate remedy
Holmes,
as Art.
at law available.
V.A.C.C.P.,
supra
or the rule in Helms v.
citing
at
Tex. Bd.
Pardons
(Tex.Cr.App.1972).
Miller,
ously respondent dismissed been regard request for writ of manda the basis that the State had not met the Act, provisions Speedy compel Trial Art. mus to the trial court to vacate the Procedure, Appellate giving 2. See also Texas Rules of notice of 30(b), perfected upon Rule wherein an is improper Applicant’s order.3 timely notice appeal, and Henderson filed on was suffi jurisdiction upon cient to confer the Court upon Based the facts Appeals. 44.08, V.A.C.C.P., See Art. err, of this the trial court did not and Penn v. (Tex. except parte” in the “ex nature of his ac- App. [14th], 1982). note, We tion, correcting original in - Houston order defer- however, petitioner if prevailed that even ring adjudication to reflect would, the trial court’s actions proper applicant’s guilt offense for which say certainty,
we can with remain unc Thus, was deferred. on the mer- hanged.4 deny We therefore will relief. action, its of the trial court’s even if or- court, dered would serve no premise Such a decision flows from the purpose. differently, appli- Stated if compel require that the law does not even us to See Ba cant was in perform appealing courts to useless tasks. successful his convic- saldua v. tion on (Tex.Cr.App. judge 558 S.W.2d the trial 1977), Allen 5;p. erroneously and cases cited therein at parte” entered the “ex prefer present 3. The dissent would this case be his counsel were at the time the Nunc 11.07, handled under Art. V.A.C.C.P. That Pro Tunc Order was entered. require would of course that convic- my It was clear in mind at that time that there tion be final. Since his notice of were no defensible issues that could be raised. court, given open in the conviction is of course certainly spite still on not final in judge’s response Also contained in the trial judge’s "ruling”. the trial As stated in Newsom given by Deputy an affidavit District Clerk v. (1938). 136 Tex.Cr.R. affidavit, assigned respondent’s court. In the working the witness states in her that she was necessary “There are no further formalities capacity as clerk on the date entered any order to cause an criminal case plea, present and was in the courtroom. give open other than to court; notice of She continues: any per- and the failure of officer to defendant, Homan, pled guilty to the “The Mr. plain duty deprive person form his cannot aggravated robbery. The Court offense legal right convicted of crime of his to have finding placed withheld a proceedings this court review the in his case.” adjudication. *6 years defendant on 10 deferred As to the dissent’s contention that we should signed plea papers, The defendant his Motion Appeals, majority defer to the Court of the feels for Probation and Terms and Conditions of holding appropriately that a such this as should reflecting aggrava- plea Probation was to come from this Court and have statewide im- robbery. ted pact. reason, judg- prepared For some when I the incorrectly ment and sentence in this I 4. judge response The trial in his to this Court pled to a reduced showed the defendant entry pro contends that the date, charge robbery. of At some later containing appropriate. order was The records charged of defendant was with the offense plea papers applicant pled all show that capital murder and filed on in another court. guilty aggravated robbery; plea was to Subsequently, I discovered the mistake and aggravated robbery, terms conditions of and promptly brought this error to the attention probation aggravated rob- show the offense Judge Hughes.” of Jon bery, applicant’s application probation for by applicant’s An affidavit was also filed coun- aggravated robbery. Respondent shows contin- sel, who states: ues: charge pled guilty “The defendant "However, reason, for some the clerk entered robbery aggravated recommenda- without a judgment contrary drew on the docket and a agreement from the State. He was tion or findings. to all these adjudication. given years deferred adjudi- It became obvious when the motion to charge aggrava- plea The was entered to the that there had been an error on cate was filed robbery robbery, as the State was ted not judgment. When the docket sheet and on the adjudi- probation attention, unable to offer or my inspect- I then this was called to only aggravated The cation for an offense. [plea papers] items ed all of the above in I could secure Mr. Homan's manner which Pro Tunc Order should concluded that a Nunc by plea a with- release from incarceration was be entered. Court. The out a recommendation to the A Nunc Pro Tunc Order was entered and a offense, and hearing adjudicate. did not move to reduce the State held on the motion to defendant, Homan, mo- given not do so on its on [sic] was life the Court did Mr. $20,000 and a fine. Neither Mr. Homan nor tion." order, pro tunc narily the outcome not mandamus must be relator’s last re would change since the in trial court all other refused if there is sort will be another ways properly changed the order. Since complete.” remedy which is effective and holding hearing would be a “useless Tex.Jur.3rd, Writ, 126, Extraordinary p. § task,” we will not mandate an for, 258. Mandamus is not a substitute sole whose of error5 and relief perform and cannot be used to the office of sought only would result in a remand of Miller, appeal. supra; Bradley an Tex. the case to the trial court for Writs, Jur.3rd, p. Extraordinary § propriety entry of the order nunc Further, it has been stated that: pro tunc. “A of mandamus not issue if writ will
Relief is therefore denied. any for reasons it would be useless or TEAGUE, J., unavailing, question or if the granting concurs to become writ, prema- dissents this but moot. Nor will the courts exercise their turely deciding the appel- merits of the for discretion to award the writ the mere appeal. lant’s purpose determining empty an .3rd, right_” barren technical Tex.Jur DAVIS, J., participating.
W.C. Writs, Extraordinary p. 250-251. § ONION, Presiding Judge, dissenting. In proceedings applicant the instant I handling dissent to the of this entire (relator) original juris- seeks to invoke the Appeals, matter. Court of Criminal diction of this Court to issue a writ essentially appellate court, an should use order to obtain an out-of-time exercising original jurisdic- restraint its appears applicant It is confined in question tion. No but what this Court Department judg- of Corrections under regarding issue writs of mandamus crimi- nal ment and sentence Cause No. 386076 law matters and to enforce its own V, jurisdiction. Article Texas Consti- from the 174th District Court of Harris § tution; 4.04, V.A.C.C.P.; Article Broggi v. County aggravated robbery. He claims Curry, deprived appeal by respon- he was of his However, govern traditional rules the is- judge, dent district not of his any suance of writ of mandamus.1 Manda- conviction, robbery appeal only but from mus is an extraordinary writ and is never of a nunc tunc order granted (relator) unless probation deferment of proves a clear to the writ. Tex.Jur. guilt. 3rd, Writs, Extraordinary p. Vol. deprived If of a lawful compel The writ will not lie to *7 right of under Texas statutes for perform per- official to some act unless its adequate one reason another he has an or clearly imposed by formance is on him law. post-conviction remedy under the habeas Washington McSpadden, 11.07, corpus procedure provided by Article 420, 422 (Tex.Cr.App.1984). As an extraor- are full of cases V.A.C.C.P. The law books writ, dinary normally is appeals out-of-time have been ac- where adequate available where there are other 11.07, supra. corded under Article Under remedies, and au- will not lie even where hearing may procedure evidentiary an thority duty clearly exists if the discre- allegations fully develop all of Miller, tionary. Bradley appeal on the Tex.Jur.3rd, to determine the of Vol. Writs, sought by appellant to Extraordinary p. 257. “Ordi- limited matter § is his 1. A is an order from a court 5. We at his word that this writ of mandamus take jurisdiction requiring person, competent a consistently of ordinarily public sole of error since he has official, a or an inferior court throughout proceedings. maintained such these perform duty required law. See Tex. to Jur.2d, Writs, Extraordinary p. 238. § Applicant reviewed.2 adequate robbery,” has an rem- and his quash motion to said edy. Thus mandamus plea will not lie. For this revocation motions and his of double overruled, deny jeopardy reason alone I would the motion for were and that subse- court, quently the application leave to file the without notice to him of writ hearing, and without pro entered a nunc mandamus. probation tunc order of and deferment of argued Even if it can be that mandamus adjudication guilt appli- of to reflect that lie, does this Court should not invoke its cant had guilty plea aggrava- entered his original jurisdiction. appeal, The if proper, robbery “probation” ted and that he was on Appeals. was to the Court of The Court of for that robbery. offense rather than He to issue writs of alleges further that the court overruled his V, mandamus in criminal cases. Article motion pro order, to set aside the nunc 6, Tex.Const.; V.T.C.A., Government § proceeded and with a revocation at Code, 22.221; Thornton, § Wolff which the court set aside the adju- 765 (Tex.App. [1st - Houston dication adjudged guilty aggra- and him of 1984); Westergren, State v. Dist.] robbery vated imprison- and assessed life (Tex.App. Corpus Christi — $10,000 ment and a fine.4 Thereafter he 1986). application The should have been alleges his motion for new trial was over- Appeals, in the filed Court of not here. Applicant points ruled. then out that he majority considering Since the insists on timely gave appeal, written notice of ex- proceedings, these then a brief review of pressly stating appeal only the desire to Appli- record before this Court is in order. pro tunc order en- alleges original cant pro- order of hearing. tered without notice or a adjudication bation and deferment of of notice of expressly appli- also stated alleged had reflected the offense 42.12, 3d(b), cant realized that Article aggravated robbery had been reduced to V.A.C.C.P., permit did not of the robbery and that it was for the offense for adjudication hearing. The notice of his adjudication was de- which allegation indigen- further contained an placed ferred and for which he was on cy requested attorney and probation years. for 10 He contends that transcription reporter’s “a free of the court apply State’s motion and amended motion to notes as those notes would to the proceed guilt3 erroneous- tunc order.” No notice of ly “aggravated given.5 refers offense from the conviction itself was proceedings (Tex.Cr.App.1985), In now before this Court we to which this affidavits, writer, applicant’s application, Judges Teague have various Clinton dissent- answer, respondent’s exhibits and the affidavits ed. The matter of reformation has not been transcription reporter’s *8 Trial in cause all of which Motion for New this 4. At the time of the assessment of punishment 10, 1985, open May on files occurred in 10, $10,000 1985), (May an unau- fine was Appeal Appeals to the Court of this his Notice of penalty. Bogany v. thorized Houston, sitting The Defendant real- Texas. (Tex.Cr.App.1983). 957 3d(b) permit izes that Art. 42.12 Sec. does not hearing 37.10, V.A.C.C.P., but it is Article has now been 1985, 3009, 442, adjudication hearing (Acts Defendant Leg., p. not the amended 69th ch. 11, ap- 1985). appeal. judg- Defendant wishes to appears wishes to eff. June It now peal by applying statutory fact that there was a Nunc Pro Tunc ment can reformed detriment, Johnson, entered, hear- retroactively. parte to his without a Ex amendment
457
3d(b),
585,
court then found
(1956);
Article 42.12
su-
peal
provide
a criminal
It
conviction.7
does
It has
said
of
been
absence
consti-
appellate jurisdiction
inhibition,
of the Court
tutional
Legislature may
Appeals
Ap- prescribe
of Criminal
of
parties
Courts
the cases in
shall
which
peals
subject
exceptions
review,
is
bring
to such
and such
entitled
a cause for
regulations
provided
prescribe
in the Constitution
courts to which causes shall be
prescribed
I,
or as
brought,
impose
law. See Article
and
such restrictions as
6, Tex.Const.;
Tex.Jur.3rd,
5
21
Legislature may
fit,
see
even when
§§
Crim.Law,
1606, p.
rights
questions
or
are involved.
§
federal
State,
195,
145
167
Millican v.
Tex.Cr.R.
seen,
Legislature
As can be
can make
(1943).8
S.W.2d 188
exceptions
regulations regarding
such
appellate jurisdiction
Court
Appeals
normally
person
are
limited to a
Appeals
Appeals
Criminal
and the Court of
convicted of offenses and those denied re
State,
itas
desires. See and cf. Armes v.
corpus.
lease under writ of habeas
De
(Tex.Cr.App.1978);
not the remedy.
Nevertheless, the majority decides that lies, gave applicant notice
valid from the conviction.
It concludes the judge deny- trial erred compelled should be to va- alas, denying
cate his order appeal. But
instead of the writ of issuance of the man- give applicant right
damus which would Appeals the Court of
opportunity grounds many raise as brief, as he
error desires in his majority dispose decides to of the ap-
peal itself in proceeding. this mandamus from what
Thus record there is before this
court, sentence, judgment sans a accorded his on the sole
ground of error raised in his notice of recognizing Still without in question appealable, was not
majority declaratory judg- concludes in a
ment that under the the re- circumstance
spondent (Judge Hughes) did the
thing in correcting the obvious clerical er- order, and entering
ror
though parte the ex nature such action improper. Thus the is enti- mandamus, to a writ of
tled will not but
issue as this all Court has solved matters
pending. message Bring is clear.
your mandamus action to and all this Court
your laundering will One word of be free.
advice, sign, read this “Caution: undisci-
plined judiciary at work.” BANKS, Appellant,
Arthur Texas, Appellee.
The STATE of
No. 940-83. Texas, of Criminal
En Banc.
April of the court notes pleadings raised before this Court. plea guilty. copy on the We do not have a appeal given judgment 5.The notice states: a former or sentence. "NOTICE OF APPEAL AND AFFIDAVIT OF alia, alleged, These motions inter while INDIGENCY “probation” applicant had committed the of- OF SAID “TO THE HONORABLE JUDGE robbery. fense of murder while the course COURT: appears applicant It is now also confined in the now, Homan, Defendant “Comes Elbert Ervin Department Texas of Corrections on a murder (sic) in the above etitled and numbered cause charge. overruling subsequent to the Court's
Notes
notes time because the Court further finds that Art. in this matter. defendant would therefore ap- 42.12 Sec. bars the Defendant from request given opportunity ap- that he be pealing any issue to the Court of peal attorney and that he be afforded an direct provided assist him and that he be a free tran- ORDERED, "IT IS THEREFORE that the De- scription Reporters of the Court notes as those denied, request fendant’s and that apply notes would to the Nunc Pro Tunc order. the Defendant be remanded to the Sheriff of “‘I, Homan, Elbert Ervin read the have County, carry provisions Harris Texas to out the hereby above motion and I all swear that of the Sentence in this cause. allegations of fact contained therein are true Hughes Jon N. Vs/ and correct.’ "JUDGEPRESIDING Elbert Homan Vs/ "ENTERED IN OF THE VOL. 30 PAGE 484 Homan, “Elbert Ervin Defendant” General “MINUTES OF THE DISTRICT 174th A.D.,