Ex Parte Patterson

• Decision Date: 01 May 1940
• Docket Number: No. 20996.,20996.
• Citation: 141 S.W.2d 319
• Parties: Ex parte PATTERSON.
• Court: Texas Court of Criminal Appeals

141 S.W.2d 319

Ex parte PATTERSON.

No. 20996.

Court of Criminal Appeals of Texas.

May 1, 1940.

Rehearing Denied June 19, 1940.

Appeal from District Court, Walker County; Langston G. King, Judge.

Proceeding ex parte J. A. Patterson for writ of habeas corpus to obtain discharge from prison. From an adverse judgment, relator appeals.

Affirmed.

G. C. Harris, of Greenville, for appellant.

Gerald Mann, Atty. Gen. of Texas, Cecil C. Rotsch, Asst. Atty. Gen., Reginald Bracewell, Dist. Atty., of Huntsville, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Relator was convicted in 1934 in causes Nos. 9430, 9431 and 9432 in the District Court of Walker County of the offenses of aiding prisoner to escape, and, waiving a jury, was tried before the court on a plea of guilty in each instance and sentenced in each case to serve five years in the penitentiary. There is shown by uncontradicted testimony that the relator's sentences in causes Nos. 9431 and 9432 were made cumulative by the court in orally sentencing relator, and that he was informed by the trial court that he was to be sentenced to a total term of fifteen years in the penitentiary. The district clerk was thus directed to prepare the minutes in these causes. At the same time the district attorney prepared and had the clerk sign the commitment or mittimus to the prison authorities, setting forth the confinement of relator in causes Nos. 9431 and 9432 as cumulative of cause 9430. The district clerk,—who was serving her first term, and also in attendance upon her first term of court, although directed by the court to enter in the minutes these last two sentences as cumulative of the first,—failed to so record the same in the minutes of the court. Sometime thereafter, and about the time that relator had served the time set forth in his sentence in cause No. 9430, the first cause, it was discovered that the minutes of the court in the two last causes had failed to show the cumulation of these sentences, and upon the hearing of a writ of habeas corpus before Judge H. F. Kirby, in another and different district from the one which included Walker County, the relator was ordered discharged from prison custody. In the meantime the State had filed and there was pending in the Walker County District Court a motion nunc pro tunc seeking to correct the court's minutes in causes Nos. 9431 and 9432 in order that they might speak the truth and reflect the actual sentence pronounced upon relator at the time of his conviction. A notice of the filing of this motion was served upon relator, but for some reason same was not heard immediately, but at its eventual hearing relator was not present, but was represented by counsel; testimony was heard, and the record was there corrected so as to make it speak the truth relative to such sentences. This the court had a right to do under the doctrine laid down in the late case of Ex parte Mattox, 137 Tex.Cr.R. 380, 129 S.W.2d 641, 644. In that case the judgment and sentence evidenced the fact that the relator Mattox had entered a plea of guilty before the court in a capital case, which could not be done under the statute. The true facts, however, showed that the count charging the capital offense in the indictment had been dismissed, and the conviction was had upon the felony less than capital. Upon proper application, the minutes of the court reflecting the sentence were corrected now for then, and made to speak the truth. They were made to show that the conviction and sentence were for the felony less than capital. As to the power of the court to correct its judgment and sentence we therein said: "As to the power of the District Court of Orange County in the premises we entertain no doubt. The holding of this court in Bennett v. State, 80 Tex.Cr. R. 652, 194 S.W. 145, 148, 150, seems decisive on the point at issue. We quote from the opinion as follows: `According to the entry in the court's minutes of December 30, 1916, the judgment rendered on the 22d of April, 1916, was not entered of record. It is true that at that time the deputy clerk wrote upon the minutes what purported to be the judgment of the court, but the court on December 30, 1916, judicially determined that the judgment so entered did not speak the truth, and, to the end that the proper judgment might be entered of record, he directed the entry of the true judgment of the court at that time. It was the court's duty to enter in the minutes of the court a true record of the judgment rendered. 2 Vernon's Crim.Statutes, art. 853 (Vernon's Ann.C.C.P. art. 766). Failing to make such record at that time, article 2015, Vernon's Civil Statutes (Vernon's Ann.Civ.St. art. 2228), gave the court authority to amend the record according to the truth. This authority existed by the inherent power to so correct its minutes at a subsequent term. Burnett v. State, 14 Tex. 455, 65 Am.Dec. 131; Rhodes v. State, 29 Tex. 188; Ximenes v. Ximenes, 43 Tex. 458; Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040; Michie's Civil Digest, vol. 11, p. 106, and cases cited in Cyc., vol. 11, p. 764; authorities cited in note, Wardell v. Williams, 62 Mich. 50, 28 N.W. 796, 4 Am. St.Rep. [814], 820; Chester v. Graves, 159 Ky. 244, 166 S.W. 998, Ann.Cas.1915D, 678, and note, page 681, citing numerous cases from various jurisdictions.'"

Also see Rios v. State, 79 Tex.Cr.R. 89, 183 S.W. 151; Cleveland v. State, 128 Tex. Cr.R. 552, 82 S.W.2d 974; Rehm v. State, 131 Tex.Cr.R. 268, 97 S.W.2d 956; Art. 772, C.C.P.; 12 Tex.Jur., p. 713, from which we quote: "The act applies and permits the entry of a nunc pro tunc judgment in cases where the judgment as originally entered does not in fact express the judgment rendered, and where the clerk has made a mistake in entering a sentence in the minutes."

It seems that the basis of all such powers is that the orders or minutes thereof may be made to speak the truth relative to the occurrences about which the minutes purport to speak; there can not be a correction of what should have been done, but can only be a correction to make the minutes show what was actually done at the time.

Again, however, it is said by relator that he was not present at the hearing of the motion to correct such minutes, and therefore such proceeding was a nullity under the doctrine that in all felony cases the accused must be personally present at each and every proceeding in the case. It is shown by the record that relator had been properly served with notice of the State's attorney to have these allegedly incorrect minutes corrected so that they speak the truth, and it is further shown that relator was at large at such time, neither under bond nor in custody, and so remained for a term of about seven months. We think he was entitled to a notice of the filing of such proceedings, and that he had a right to be present, if he so desired, at the hearing and contest the same, but we do not think his presence at the hearing was necessary to any greater degree than was his presence at the entering of the original minutes desired to be corrected. It can not be contended that it was necessary that relator should have been actually present at the time such minutes were entered by the clerk, nor signed by the trial court. If such should be held necessary, then an accused by voluntarily absenting himself could preclude the entry of such minutes for any length of time. It is shown that the relator was absent from Huntsville, the county seat of Walker County, on his own volition,—although he had notice of the pending of the motion to correct such minutes,—for about seven months, and that for a period of such time his whereabouts were unknown even to his wife; that she received an additional notice of the setting of the matter relative to the correction of these minutes, and communicated with the attorney representing the relator herein, and instructed him to appear on behalf of relator, and he did appear at such hearing. We think that under the circumstances the notice of the pendency of such motion having been properly served upon relator, that it was his duty to keep himself informed of the proceedings and setting thereof. It is also worthy of note that the relator's attorney appeared at such hearing, and appealed to this court after an unfavorable judgment on the part of the trial court on such motion, which appeal was by this court dismissed. See Patterson v. State, 136 Tex. Cr.R. 581, 127 S.W.2d 300.

"The absence of the accused at some stage of the proceedings does not in every instance require a reversal." Boatright v. State, 118 Tex.Cr.R. 547, 42 S.W.2d 422, 424, and many cases there cited.

It is also contended that because of the fact that during the pendency of the motion to correct the minutes, and while same failed to show a cumulative sentence, the relator had a hearing under a writ of habeas corpus granted by Judge Fountain Kirby, a judge of an adjoining district, at which hearing he was ordered discharged from the custody of the State prison officials, and he was by them at such time discharged from further confinement. We are of the opinion that the hearing of this writ should have been had in the county where the indictment was had and tried, Walker County, under the statute, Art. 118, C.C.P., which declares: "Before indictment found, the writ [of habeas corpus] may be made returnable to any county in the State."

However Art. 119, C.C.P., declares that: "After indictment found, the writ [of habeas corpus] must be made returnable in the county where the offense has been committed, on account of which the applicant stands indicted."

While Judge Kirby had the right under the statute to grant the writ, he should have made the same returnable to the district court of Walker County. See Ex parte Trader, 24 Tex.Cr.App. 393, 6 S.W. 533; Ex parte Ainsworth, 27 Tex. 731; Ex parte Springfield, 28 Tex.Cr.App. 27, 11 S.W. 677; Ex parte Overcash, 65 Tex.Cr.R. 67, 134...