Alvarez v. State

• Decision Date: 08 October 1980
• Docket Number: No. 3,No. 65097,65097,3
• Citation: 605 S.W.2d 615
• Parties: Stephen ALVAREZ and Barry Johnson, Appellants, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 615

605 S.W.2d 615

Stephen ALVAREZ and Barry Johnson, Appellants, v. The STATE of Texas, Appellee.

No. 65097.

Court of Criminal Appeals of Texas, Panel No. 3.

Oct. 8, 1980.

Vincent F. Fialho, Fort Worth, for appellants.

Tim Curry, Dist. Atty., William Kane, and C. Chris Marshall, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, TOM G. DAVIS and W. C. DAVIS, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from final judgment forfeiting an appearance bond. Appellants were the principal and surety, respectively, on an appearance bond in the amount of $4,000.00.

In two related contentions, appellants maintain that neither the evidence nor the judgment nisi support the final judgment. These contentions are based upon a variance between the judgment nisi which recites a failure to appear in Criminal District Court Number Two on June 29, 1979, and the final judgment entered in Criminal District Court Number Three on February 7, 1980, which recites that no sufficient cause is shown why the principal did not appear "in this court" on June 29, 1979. No transfer order appears in the record. This Court has previously found similar contentions to have merit in George v. State, 589 S.W.2d 428 and Smith v. State, 548 S.W.2d 407.

The State maintains that appellants' contentions are not supported by the record due to Criminal District Court Number Two entering a final judgment, nunc pro tunc, on August 14, 1980, which recites that no sufficient cause is shown why the principal did not appear "in this court" on June 29, 1979. By way of a supplemental brief, appellants now advance four contentions in which they maintain that the trial court erred in entering the final judgment, nunc pro tunc.

In their first supplemental ground of error, appellants maintain that the error in the February 7th final judgment was a judicial error which could not be corrected more than thirty days after the entry of such judgment.

The record reflects that in entering the final judgment, nunc pro tunc, the court fund that as a result of clerical error the original final judgment had erroneously recited that it was entered in Criminal District Court Number Three. Dorothy Wrinkle, Deputy District Clerk of Tarrant County, testified at the hearing held on the State's motion for the entry of a final judgment, nunc pro tunc. Wrinkle stated that she had prepared the original final judgment in this cause and had mistakenly indicated that the judgment was entered in Criminal District Court Number Three. She related that the hearings on both the judgment nisi and original final judgment had been held in Criminal District Court Number Two. The final judgment, nunc pro tunc, was entered by the trial court some six months after the original final judgment.

The purpose of a nunc pro tunc order is to correctly reflect from the records of the court a judgment actually made by it, but which for some reason was not entered of record at the proper time. Holway v. Holway, 506 S.W.2d 643 (Tex.Civ.App.-El Paso, 1974, no writ). Even though thirty days have passed after the entry of a judgment, a trial court retains the power to enter a nunc pro tunc order correcting any "clerical error" which may appear in the judgment. Quintanilla v. Seagraves Ford Inc., 522 S.W.2d 274 (Tex.Civ.App.-Corpus Christi, 1975, no writ). Whether an error is judicial or clerical in nature has been held to be a question of law. Mathes v. Kelton, 569 S.W.2d 876 (Tex. 1978). It has been noted that an error in the entry of a judgment will be styled as "clerical" in nature, so long as the error did not come about as the product of judicial reasoning. Nolan v. Bettis, 562 S.W.2d 520 (Tex.Civ.App.-Austin, 1978, no writ).

We conclude that the misrecital in the February 7th final judgment was the result of a clerical error. As such an error, the trial court had authority to enter a final judgment, nunc pro tunc, more than thirty days after the entry of the original final judgment.

In their fourth supplemental ground of error, appellants contend that the trial court erred in correcting a final judgment which had previously been rendered by a different judge. The record reflects that the original final judgment was signed by the Honorable Charles Lindsey while the final judgment, nunc pro tunc, was signed by the Honorable Tom Cave.

Clearly, any of the judges of the District Courts of Tarrant County have jurisdiction to sit in any district court of the county, and may hear and determine any part of any case or proceeding pending in any of the district courts in the county. See, Collins v. Miller, 443 S.W.2d 298 (Tex.Civ.App.-Austin 1969, writ ref'd n. r. e.); Peach v. State, 498 S.W.2d 192 (Tex.Cr.App.). Appellants' fourth supplemental ground of error is without merit.

In their third supplemental ground of error, appellants maintain that Criminal District Court Number Two did not...