Lead Opinion
OPINION
Appellant, Christopher Dante Loud, appeals from the trial court’s judgment nunc pro tunc convicting him of aggravated assault with a deadly weapon and affirmatively finding a deadly weapon was used during the offense. Because we conclude that the trial court corrected judicial errors and omissions by making the changes at issue, we vacate the judgment nunc pro tunc, and reinstate and affirm the original judgment and sentence.
I. Background
In 2006, appellant was indicted for the offense of aggravated assault with a deadly weapon. However, the caption on the indictment reflects that the charged offense was “aggravated assault — bodily injury.” Under the terms of a plea agreement, he pleaded no contest, and was placed on deferred-adjudication community supervision. At the plea hearing, held on July 3, 2006, the trial court orally admonished appellant that he was pleading guilty to the offense of aggravated assault — serious bodily injury. Appellant waived the reading of the indictment. The trial court affirmed that appellant stipulated to the allegations contained in the charging instrument. Additionally, appellant’s written stipulation of evidence provides: “At the trial of this cause the State could and would produce witnesses who would testify and establish, beyond a reasonable doubt, the truth of all of the material allegations in the indictment.... ” The written admonishments signed by appellant and the trial court list the offense as “Aggravated Assault w/Serious Bodily Injury.” Both the admonishments and the stipulation of evidence were signed at the plea hearing. The order of deferred adjudication indicates appellant was charged with aggravated assault — bodily injury, with the statute for the offense listed as Texas Penal
In December 2006, the State filed an application to proceed to adjudication, listing the offense to which appellant entered a plea as “aggravated assault — bodily injury.” Appellant entered into another plea agreement with the State and continued on community supervision for a longer term, with some additional restrictions and increased fees. In its order on the State’s application, the trial court stated:
HERETOFORE, on the 3rd day of July 2006, as reflected by a prior order of this Court, this case was tried and Christopher Dante Loud, hereinafter called defendant, entered a plea of Nolo Contendere to the offense of Aggravated Assault-Bodily Injury. The Court after hearing the evidence introduced thereunder accepted the plea of Nolo Contendere, deferred further proceeding without entering an adjudication of guilt and placed the defendant on probation for a term of six (6) years and cost of Court. Thereafter, the State filed a motion in which it alleged that the defendant has violated the terms of probation, moving the Court to proceed to an adjudication of guilt, the assessment of punishment and all other actions necessary in this cause, a copy of which motion was served upon the defendant, and on the 16th day of January 2007, came on to be heard the Motion heretofore filed by the State, and the defendant appeared in рerson with counsel and the State appeared through her Assistant District Attorney and after proper admonishment the defendant entered a plea of true to violation 3, 8 and 10 of the allegations contained in the Motion filed by the State alleging a violation of the terms of probation.
(emphasis added).
The State filed another application to proceed to adjudication in November 2008. In this application, the State alleged:
Christopher Dante Loud, the defendant in this cause, entered a plea of Nolo Contendere to the offense of Aggravated Assault-Bodily Injury, a felony, on the 3rd day of July 2006. The Court after hearing the evidence introduced thereunder and аccepting the plea of Nolo Contendere, deferred further proceedings without entering an adjudication of guilt and placed the defendant on probation on reasonable terms and conditions for a period of six (6) years, and the said defendant was then and there probated to said Hill County Community Supervision and Corrections Department as aforesaid.
(emphasis added).
At the beginning of the hearing on the State’s application, held on February 11, 2009, the trial court confirmed that appellant was “the same person that entered a plea of no contest to a charge of aggravated bodily assault — or aggravated assault bodily injury back on July the 3rd, 2006.” The trial court found the State’s allegations that appellant violated the terms of his community supervision true and found appellant guilty of the “offense alleged in the indictment.” After a punishment hearing, the trial court sentenced appellant to 15 years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. The judg
Later that month on February 20,
1. In a February 9, 2009 hearing on the State’s Apрlication to Proceed to Final Adjudication, the Court found the allegations in the Application to be true, found the Defendant guilty of the offense as charged in the Indictment, and after a punishment hearing, sentenced the Defendant to 15 years in prison, and a fine of $10,000.
2. The Judgment signed by the Court on February 13, 2009 contains clerical errors, including:
a. The “Statute for Offense” is erroneously entered as § 22.02(a)(1). Defendant was indicted for and found guilty of Aggravated Assault under Tex. Penal Code § 22.02(a)(2),[4 ] so the entry should be corrected.
b. The code for the “Offense for which Defendant Convicted” is incorrectly entered as 13150004. It should be the code for Aggravated Assault — Deadly Weapon— 13150005.
c. The “Findings on Deadly Weapon” is еrroneously shown as N/A. The Defendant was indicted for aggravated assault by using or exhibiting a deadly weapon during the commission of the offense. He was found guilty as charged in the Indictment. The deadly weapon is an element of the offense, so the record should be corrected to show the Court’s finding.
Appellant filed “Defendant’s Motion in Arrest of Judgment and Motion for New Trial” on February 27, 2009. Appellant requested a new trial, contending the judgment “is contrary to law and the evidence,” and “revocation of deferred adjudication community supervision is an abuse of discretion.” There is no indication in the record that the trial court considered or acted upоn appellant’s motion. Moreover, the State did not pursue correction of judicial, rather than, clerical, errors.
The trial court conducted a hearing on the State’s motion for entry of judgment nunc pro tunc on March 9, 2009. The reporter’s record does not reflect any indication that the trial judge independently recalled that he made a deadly-weapon finding during the hearing on final adjudication of appellant’s guilt. At the conclusion of the hearing, the trial court requested additional briefing from the State and appellant regarding whether a judgment nunc pro tunc was available to correct these errors. After the parties submittеd briefing, the trial court changed the order of deferred adjudication to reflect the offense as “Aggravated Assault w/Deadly Weapon,” the offense statute as “22.02(a)(2) Penal Code,” and the findings on deadly weapon as ‘Tes, Not a Firearm.” The trial court further changed the caption of the indictment, the order imposing conditions of community supervision, and the criminal docket sheet to reflect the offense of “Aggravated Assault w/Deadly Weapon.” Finally, the trial court entered a Nunc Pro Tunc Judgment Adjudicating
II. Analysis
In a single issue, apрellant contends the trial court erred in adjudicating him guilty of aggravated assault — deadly weapon and entering an affirmative finding of a deadly weapon through a judgment nunc pro tunc.
In his brief, appellant contends: “on the one hand the original [gjuilty plea is involuntary or on the other hand the judgment should be modified to remove the deadly-weapon finding and adjudicate the Appellant Guilty of either Aggravated Assault-Bodily Injury under Texas Penal Code Section 22.02(a)(1) or Aggravated Assault Serious Bodily Injury.” However, we will not consider appellant’s argument that his guilty plea was involuntary because appellant did not voice this complaint in the trial court. See Worthy v. State,
A judgment nunc pro tunc is appropriate to correct clerical errors when the court’s records do not mirror the judgment actually rendered. Collins v. State,
As discussed above, appellant pleaded no contest to the allegations in the indictment. The indictment, in turn, alleged aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2). However, appellant waived the reading of the indictment, and the trial court, both orally and in writing, admonished appellant that the offense with which he was charged was aggravated assault-serious bodily injury. See id. § 22.02(a)(1). There is no mention in any of the documents contained in the clerk’s record — except the body of the indictment — or any discussion in any of the reporter’s records of a deadly weapon until the State filed its motion for judgment nunc pro tunc. Indeed, the record makes clear that everyone, including the State and the trial court, was operating under the assumption appellant had pleaded no contest to aggravated assault — serious bodily injury. At the beginning of three separate hearings over the course of three years, the trial court verified appellant had pleaded no contest to aggravated assault— bodily injury. In fact, the trial court requested briefing at the conclusion of the hearing on the State’s motion for a judgment nunc pro tunc; such a request certainly suggests the use of judicial reasoning in determining whether to correct the numerous errors apparent in this record. Cf Collins,
Further, when the trial court is the trier-of-fact, it has discretion to withhold entry of a deadly-weapon finding from its judgment, even when such a finding is supported by the evidence. See Guerrero v. State,
We acknowledge that on the day the trial court signed the judgment nunc pro tunc it retained plenary power over the case. We are also cognizant of authority supporting the contention that a trial court, in exercise of its plenary power, may vacate, modify or amend certain of its own rulings. See Awadelkariem v. State,
However, enhancement findings are made and entered during final adjudication of guilt, and we have not identified any authority supporting the contention that the trial court may alter or amend enhancement findings without granting a motion for new trial. Here, the State merely requested that the trial court correct a clerical error. Accordingly, under the unique circumstances presented in this case, we conclude the trial court acted to correct judicial errors and omissions; in fact, it appears as though the trial court changed its record to reflect what it believed should have been done, not to what actually occurred. See Collins,
Having sustained appellant’s issue, we order the judgment nunc pro tunc vacated and set aside. We further order the original judgment and sentence reinstated. We affirm the original judgment of the trial court.
FROST, J., dissenting.
Notes
. Appellant has not challenged the original judgment and sentence.
. This statute provides that a person commits aggravated assault if he commits assault and causes serious bodily injury to another. Tex. Penal Code Ann. § 22.02(a)(1) (Vernon Supp. 2009).
. Appellant timely filed his notice of appeal on February 27, 2009.
. This statute provides that a person commits aggravated assault if he commits assault and uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a)(2).
Dissenting Opinion
dissenting.
This court should affirm the trial court’s March 13, 2009 judgment either because the trial court properly exercised its inherent power to correct or modify its prior judgment or because the trial court properly corrected clerical errors in the prior judgment.
Background
On February 13, 2009, the trial court signed a judgment adjudicаting guilt and reflecting a conviction for aggravated assault under Texas Penal Code section 22.02(a)(1) (hereinafter, “Bodily Injury Aggravated Assault”). The notation “N/A” was entered in the space for any deadly weapon finding. Appellant timely filed a motion for new trial and a motion in airest of judgment. One week later, the State filed a motion for nunc pro tunc judgment. The trial court conducted a hearing on the State’s motion on March 9, 2009. During the hearing, counsel for the State indicated that the trial court had only thirty days after the date on which judgment was rendered to correct its judgment. At the conclusion of the hearing, the trial court requested additional briefing and took thе matter under advisement.
The trial court granted the State’s motion on March 13, 2009, within thirty days of sentencing and rendition of the original judgment. On the same day, the trial court also edited its previous order of deferred adjudication to reflect the offense as “Aggravated Assault w/Deadly Weapon,” the offense statute as “22.02(a)(2) Penal Code,” and the findings on deadly weapon as “Yes, Not a Firearm.” The trial court further edited the caption of the indict
In a single issue, appellant contends the trial court erred and abused its discretion by adjudicating him guilty of Deadly Weapon Aggravated Assault and entering an affirmative deadly weapon finding in its March 13, 2009 judgment. The majority appropriately confines its analysis and disposition to the issue of whether the trial court properly changed the judgment to enter a deadly weapon finding and to reflect a conviction for Deadly Weaрon Aggravated Assault.
Trial Court’s Plenary Power to Modify its Judgment
In the body of the indictment it is clearly alleged that appellant committed Deadly Weapon Aggravated Assault and that he used a deadly weapon during the commission of the offense. Appellant pleaded “no contest” to this indictment. Appellant stipulated that the State could prove these allegations beyond a reasonable doubt and that these allegations are true.
During the February 11, 2009 hearing, the trial court found that appellant violated his probation and twice pronounced that it found appellant “guilty of the offense alleged in the indictment,” which was Deadly Weapon Aggravated Assault, not Bodily Injury Aggravated Assault. The trial court did not state that it found appellant guilty of Bodily Injury Aggravated Assault. The trial court assessed punishment at fifteen years’ confinement and a $10,000 fine. There is no issue before this court regarding the voluntariness of appellant’s plea.
The Texas Court of Criminal Appeals has indicated that (1) “a court has inherent power to correct, modify, vacate, or amend its own rulings” and (2) “a trial court has plenary jurisdiction over a case for at least the first thirty days after sentencing.” State v. Aguilera,
In Ware v. State, the defendant was convicted of two offenses, the second of which had a maximum sentence of twenty years’ confinement. See
On appeal, the Second Court of Appeals held that the pendency of the Ware appellant’s appeal did not prevent the trial court from modifying its judgment because the appellate record had not yet been filed in the Second Court of Appeals when thе trial court modified its judgment. See id. at 353-54. The Ware court then concluded that the trial court’s modification could not be characterized as granting a motion for new trial or a motion in arrest of judgment. See id. The Ware court also decided that the trial court’s modification could not be upheld as a judgment nunc pro tunc. See id,, at 354-55. Instead, the Ware court held that, because the trial court acted during its plenary jurisdiction over the case, the trial court had the inherent power to correct, vacate, modify, or amend its judgment and that it was proper for the trial court to correct its judgment in the way that it did. See id. Both the Texas Court of Criminal Appeals and this court have cited Ware with apрroval and indicated that Ware was correctly decided. See Aguilera,
In the case under review, the trial court signed its March 13, 2009 judgment within thirty days of sentencing, while it still had plenary jurisdiction over the case. See Aguilera,
Propriety of Nunc Pro Tunc Judgment
A judgment nunc pro tunc is appropriate to correct clerical errors when the court’s records do not reflect the judgment actually rendered. See Ex parte Poe,
The indictment put appellant on notice that he was charged with the offense of Deadly Weapon Aggravated Assault and that he was alleged to have used a deadly weapon during the commission of the offense. During the February 11, 2009 hearing, the trial court found appellant “guilty of the offense alleged in the indictment,” which was Deadly Weapon Aggravated Assault, not Bodily Injury Aggravated Assault. The trial court did not find appellant guilty of any offense other than Deadly Weapon Aggravated Assault. Therefore, the record reflects that, though the trial court found appellant guilty of Deadly Weapon Aggravated Assault, the original judgment contained a clerical error reflecting a conviction for Bodily Injury Aggravated Assault.
For the deadly weapon finding, there are two procedural steps: (1) the affirmative finding by the trier of fact that a deadly weapon was used or exhibited during the commission of a felony offense or during the immediate flight therefrom, and that the defendant used or exhibited the
Even though the statute in question makes no distinction between bench trials and jury trials, the Texas Court of Criminal Appeals has held that, if the trial court is the fact finder, then the statute is construed differently. See Tex.Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2); Hooks v. State,
Nothing in the record reflects that the trial court exercised its discretion to not enter the deadly weapon finding in its February 13, 2009 judgment. The trial judge knew whether he intended to enter a deadly weapon finding in this judgment. Because the trial court rendered a judgment nunc pro tunc, the trial judge impliedly found that he intended to enter a deadly weapon finding in this judgment but that, through a clerical error, no such entry was made. Furthermоre, the trial court was not required to orally pronounce a deadly weapon finding at sentencing. See Ex parte Huskins,
On this record, this court should conclude that no error has been shown in the trial court’s rendition of a judgment nunc pro tunc reflecting a conviction for Deadly Weapon Aggravated Assault and entry of a deadly weapon finding.
Conclusion
This court should affirm the trial court’s March 13, 2009 judgment because (1) this judgment was a proper exercise of the trial court’s inherent power to correct or modify its judgment while the trial court still had plenary jurisdiction over the case, or (2) this judgment was a proper judgment nunc pro tunc, correcting clerical errors that resulted in the Februаry 13, 2009 judgment not reflecting the judgment that actually had been rendered. Because the court does not do so, I respectfully dissent.
. Though appellant argues in passing in his brief that the original "guilty” plea was involuntary, the majority correctly declines to consider this argument because appellant did not voice this complaint in the trial court. See Worthy v. State,
. The majority suggests that in its motion the State sought only correction of clerical errors and that therefore the trial court had no inherent power to modify its prior judgment. First, the State’s motion can be construed as a request that the trial court modify its judgment to reflect a conviction for Deadly Weapon Aggravated Assault and entry of a deadly weapon. See Ware,
. Whatever issues there may be regarding a trial court’s exercise of its inherent power to re-sentence a defendant after he has started serving his sentence, those issues are not presented in this appeal because the trial court did not chаnge appellant's sentence. See Ex parte Huskins,
. Appellant relies upon Fanniel v. State, and argues that the trial court in the case under review was precluded from entering a deadly weapon finding in a judgment nunc pro tunc because the trial court did not originally make a deadly weapon finding when the defendant’s guilt was adjudicated. See