Christopher Dante LOUD, Appellant, v. The STATE of Texas, Appellee.
No. 14-09-00332-CR.
Court of Appeals of Texas, Houston (14th Dist.).
Dec. 7, 2010.
Rehearing Overruled Jan. 6, 2011.
329 S.W.3d 230
Christopher Dante Loud, Bonham, pro se.
Dan V. Dent, Hillsboro, for appellee.
Panel consists of Justices ANDERSON, FROST, and SEYMORE.
OPINION
CHARLES W. SEYMORE, Justice.
Appellant, Christopher Dante Loud, appeals from the trial court‘s judgment nunc
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 stat-ute for the offense listed as Texas
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 оf 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 person 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 Lоud, 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 accepting 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 20,3 the State filed a motion to еnter a judgment nunc pro tunc adjudicating appellant‘s guilt. The State alleged:
- In a February 9, 2009 hearing on the State‘s Application 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.
- The Judgment signed by the Court on February 13, 2009 contains clerical errors, including:
- The “Statute for Offense” is erroneously entered as
§ 22.02(a)(1) . Defendant was indicted for and found guilty of Aggravated Assault underTex. Penal Code § 22.02(a)(2) ,[4] so the entry should be corrected. - The code for the “Offense for which Defendant Convicted” is incorrectly entered as 13150004. It should be the code for Aggravated Assault—Deadly Weаpon—13150005.
- The “Findings on Deadly Weapon” is erroneously 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.
- The “Statute for Offense” is erroneously entered as
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 thе trial court considered or acted upon 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 availablе to correct these errors. After the parties submitted briefing, the trial court changed the order of deferred adjudication to reflect the offense as “Aggravated Assault w/Deadly Weapon,” the offense statute as ”
II. Analysis
In a single issue, appellant 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 [g]uilty 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
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, 240 S.W.3d 925, 928 (Tex.Crim.App.2007). However, such an order is not appropriate to correct judicial errors or omissions. Ex parte Poe, 751 S.W.2d 873, 876 (Tex.Crim. App.1988) (en banc). “The trial court cannot, through a judgment nunc pro tunc, change a court‘s records to reflect what it believes should have been done.” Collins, 240 S.W.3d at 928 (citing Ex parte Dopps, 723 S.W.2d 669, 671 (Tex.Crim.App.1986) (en banc) (per curiam)). The dispositive issue in this case is thus whether the changes made by the trial court resulted from judicial reasoning or were simply corrections of clerical errors. Such a determination is a matter of law. See Poe, 751 S.W.2d at 876.
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
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, 299 S.W.3d 487, 490 (Tex.App.-Amarillo 2009, no pet.); Johnson v. State, 233 S.W.3d 420, 425 (Tex.App.-Fort Worth 2007, pet. denied); Dickson v. State, 988 S.W.2d 261, 263 (Tex.App.-Texarkana 1998, pet. ref‘d); Campos v. State, 927 S.W.2d 232, 235 (Tex.App.-Waco 1996, no pet.). Notwithstanding the trial court‘s decision to grant the State‘s motion to enter a judgment nunc pro tunc, we must glean its original intent by reviewing the entire record. On multiple occasions, the State and the trial court (orally and in writing) denominated the charge as “aggravated assault-bodily injury.” During the hearing on final adjudication of guilt, the trial court asked appellant if he was the same person charged with “aggravated assault-bodily injury.” Moreover, any doubt regarding the trial court‘s original intent is removed by its express finding of “N/A” on the original judgment. The deadly weapon finding was within the trial court‘s discretion and required judicial reasoning; accordingly the “N/A” entry was not merely a clerical error. Johnson, 233 S.W.3d at 428. Based on this record, we cannot conclude that the trial court‘s inscription of “N/A” in the judgment under the topic “Findings on a Deadly Weapon” was simply a clerical error, particularly whеn coupled with a record that indicates the judge was operating under the assumption that appellant had pleaded no contest to aggravated assault—serious bodily injury. Again, we find no basis in this record for the State‘s contention that in contemplating the merits of the State‘s motion for entry of judgment nunc pro tunc, the trial judge independently recalled his intent to enter a deadly-weapon finding when he adjudicated appellant‘s guilt.
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, 974 S.W.2d 721, 728 (Tex.Crim.App.1998) (de-
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, 240 S.W.3d at 928 (“The trial court cannot, through a judgment nunc pro tunc, change a court‘s records to reflect what it believes should have been done.“). The trial court was not authorized to enter the judgment nunc pro tunc. See Dopps, 723 S.W.2d at 671. We sustain appellant‘s sole issue.
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.
KEM THOMPSON FROST, Justice, 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 adjudicating guilt and reflecting a conviction for aggravated assault under
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 ”
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 weaрon finding and to reflect a conviction for Deadly Weapon 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 allegеd 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.1 Appellant is not challenging the manner in which he was admonished. The focus of this appeal is the propriety of the trial court‘s action in changing its judgment to reflect a conviction for Deadly Weapon Aggravated Assault rather than Bodily Injury Aggravated Assault and entry of a deadly weapon finding rather than no such entry. The first change bears on the offense for which appellant was convicted, not the punishment assessed for this offense. The second change bears on whether the trial court entered a deadly weapon finding, which is an administrative matter that is not part of the guilt/innocence determination or part of the sentence. See Ex parte Huskins, 176 S.W.3d 818, 820-21 (Tex.Crim.App.2005) (holding that a deadly weapon finding is not part of the sentence or punishment and that, even though it may affect how the sentence is served, a trial court is not required to orally announce a deadly weapon finding at sentencing).
The Texas Court of Criminal Appeals has indicated that (1) “a court has inherent powеr 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, 165 S.W.3d 695, 698 n. 7 (Tex.Crim.App.2005) (quoting Awadelkariem v. State, 974 S.W.2d 721, 728-29 (Tex.Crim.App.1998) (Meyers, J., concurring) and McClinton v. State, 121 S.W.3d 768, 769 n. 1 (Tex.Crim.App.2003) (Cochran, J., concurring)). In Junious v. State, the trial court initially sentenced appellant to twenty-five years’ confinement and then later, within thirty days of sentencing, purported to grant appellant‘s motion for new trial “as to punishment only” and to sentence appellant to ten years’ confinement. See 120 S.W.3d 413, 415-16 (Tex.App.-Houston [14th Dist.] 2003, pet. ref‘d). On appeal in Junious, this court held that the trial court‘s purported granting of a new trial as to punishment only was void and therefore a nullity. See id. Unable to uphold the trial court‘s action based on the Junious appellant‘s motion for new trial, this court held that the trial court modified the Junious appellant‘s punishment while it still had plenary jurisdiction and that the trial court was authorized to do so based on its inherent power to vacate, modify, or amend its own rulings within the time of its plenary jurisdiction. See id. at 416-17. The Texas Court of Criminal Appeals later cited Junious with approval and indicated that Junious was correctly decided. See Aguilera, 165 S.W.3d at 698 n. 7.
In Ware v. State, the defendant was convicted of two offenses, the second of which had a maximum sentence of twenty years’ confinement. See 62 S.W.3d 344, 353 (Tex.App.-Fort Worth 2001, pet. ref‘d). In its oral pronouncement of sentence, the trial court stated that defendant was sentenced to seventy-five years’ confinement, without specifying the offense or offenses to which this punishment pertained. See id. After the defendant appealed and moved for a new trial, pointing out the maximum punishment for the second offense, the trial court held a hearing within thirty days of sentencing. See id. At this hearing, the trial court stated that it was granting a judgment nunc pro tunc, in which it was sentencing the defendant to seventy-five years’ confinement for the first offense and ten years’ confinement for the second offense, with the sentences to run concurrently. See id. The next day, the trial court signed a nunc pro tunc judgment consistent with its statements the day before. See id.
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 appellаte record had not yet been filed in the Second Court of Appeals when the 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 wаy that it did. See id. Both the Texas Court of Criminal Appeals and this court have cited Ware with approval and indicated that Ware was correctly decided. See Aguilera, 165 S.W.3d at 698 n. 7; Junious, 120 S.W.3d at 417.
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, 165 S.W.3d at 697-99; Junious, 120 S.W.3d at 417. When the trial court modified its judgment, appellant‘s motion for new trial and motion in arrest of judgment were still pending before the trial
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. Seе Ex parte Poe, 751 S.W.2d 873, 876 (Tex.Crim.App.1988). A nunc pro tunc order is not appropriate to correct judicial errors. See id. Therefore, to determine if the March 11, 2009 judgment is proper as a judgment nunc pro tunc, this court must determine whether the actual judgment rendered was a conviction for Deadly Weapon Aggravated Assault with entry of a deadly weapon finding.
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 indictmеnt,” 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
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. Furthermore, the trial court was not required to orally pronounce a deadly weapon finding at sentencing. See Ex parte Huskins, 176 S.W.3d 818, 821 (Tex.Crim.App.2005).
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 prо tunc, correcting clerical errors that resulted in the February 13, 2009 judgment not reflecting the judgment that actually had been rendered. Because the court does not do so, I respectfully dissent.