Blanton v. State, PD–0767–10.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 369 S.W.3d 894
• Docket Number: No. PD–0767–10.,PD–0767–10.
• Parties: Donald Gene BLANTON, Appellant, v. The STATE of Texas.
• Decision Date: 27 June 2012

369 S.W.3d 894

Donald Gene BLANTON, Appellant,
v.
The STATE of Texas.

No. PD–0767–10.

Court of Criminal Appeals of Texas.

June 27, 2012.

[369 S.W.3d 896]

Christian T. Souza, Dallas, for appellant pro se.

Sue Korioth, Asst. D.A., Kaufman, Lisa C. McMinn, State's Attorney, Austin, for State.

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 Tex.App. LEXIS 1135, at *6–7 (Tex.App.-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

[369 S.W.3d 897]

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 23.1 ² “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

[369 S.W.3d 898]

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); seeTex.R.App. P. 23.1. 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. Proc. 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

[369 S.W.3d 899]

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 tunc 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.”...