Homan v. Hughes, 69556
| Decision Date | 23 April 1986 |
| Docket Number | No. 69556,69556 |
| Citation | 708 S.W.2d 449 |
| Parties | Elbert E. HOMAN, Applicant v. Jon HUGHES, Dist. Judge, Respondent. |
| Court | Texas Court of Criminal Appeals |
Applicant seeks to invoke this Court's original jurisdiction to issue writs of mandamus and certiorari pursuant to Article 5, Sec. 5 of the Texas Constitution and Article 4.04, V.A.C.C.P.
Applicant is presently serving a life sentence at the Texas Department of Corrections for the offense of aggravated robbery. Applicant contends that respondent entered a "Probation Order and Deferred Adjudication of Guilt Nunc Pro Tunc" judgment improperly in that respondent did so ex parte, without allowing petitioner an opportunity to be heard. The procedural facts are as follow.
Applicant was charged with aggravated robbery alleged to have been committed on August 5, 1983. On September 23, 1983, a hearing was held before visiting Judge Don Humble of Milam County. The trial court asked the State's attorney whether it moved to reduce the charge to robbery, and the State's attorney responded that it did not. The trial court ascertained that applicant was charged with aggravated robbery, and asked applicant for his plea. Applicant voluntarily pled guilty to the offense of aggravated robbery. The record also reflects that applicant was represented by counsel, waived his right to a jury trial, and was fully admonished as to the punishment possible and that the court was not bound by any recommendation by the State. Applicant signed a judicial confession admitting commission of the offense of aggravated robbery, and was subsequently found guilty. The trial court deferred adjudication and placed applicant on supervised probation for a period of ten years. The "Probation Order and Deferment of Adjudication of Guilt," filled out by the court clerk, as verified by her affidavit, stated that the offense was "aggravated robbery, but upon motion of the State, the offense was reduced to robbery, the defendant on trial for robbery."
On July 26, 1984, the State filed a motion to adjudicate guilt; an amended motion to adjudicate was filed on October 29, 1984. Both motions referred to the offense for which applicant's guilt was deferred as aggravated robbery.
On April 25, 1985, respondent entered an "Entry of Probation Order and Deferment of Adjudication of Guilt Nunc Pro Tunc" stating that it had been brought to the attention of the court that the original deferred adjudication order had represented the offense to be "robbery" when the actual offense for which applicant's guilt was deferred was "aggravated robbery." The nunc pro tunc order contained the following statement by the trial court:
The order was then changed to reflect that applicant was placed on deferred adjudication for the offense of "aggravated robbery."
Applicant also filed a "MOTION TO SET ASIDE JUDGMENT [sic] NUNC PRO TUNC", which was overruled by the court on May 10, 1985. The court proceeded with an adjudication hearing, and revoked applicant's deferred adjudication that same day. Applicant was subsequently found guilty of aggravated robbery and sentenced to life imprisonment in the Texas Department of Corrections.
On May 23, 1985, applicant filed a written notice of appeal and affidavit of indigency. Anticipating the argument that the Texas Code of Criminal Procedure forbade an appeal after the hearing to adjudicate guilt, appellant in his notice of appeal specifically stated that applicant wanted only to appeal on grounds concerning the nunc pro tunc order and not the adjudication of guilt. Specifically, the notice of appeal stated:
On May 24, 1985, the trial court entered an order denying applicant's request for appeal, because:
"The Court finds that the Defendant is indigent, but that is of no consequence at this time because the Court further finds that Art. 42.12 Sec. 3d(b) bars the Defendant from appealing any issue to the Court of Appeals on direct appeal."
Applicant contends that the trial court erred in entering the nunc pro tunc order without affording him an opportunity to be present for the hearing, represented by counsel, in order to accord him due process of law, citing Shaw v. State, 539 S.W.2d 887 (Tex.Cr.App.1976). Therefore, the trial court should not have overruled his request to appeal the entry of the nunc pro tunc order. Applicant requests by application for writ of mandamus, that the trial court be ordered to withdraw its denial of his request to appeal the entry of the nunc pro tunc order.
Since applicant entered a judicial confession and pled guilty to the offense, the trial court was correct in concluding that applicant had no right to appeal the court's determination to proceed with an adjudication of guilt on the original charge, pursuant to the provisions in Art. 42.12, Sec. 3d(b), V.A.C.C.P. See also Contreras v. State, 645 S.W.2d 298 (Tex.Cr.App.1983); Richardson v. State, 617 S.W.2d 267 (Tex.Cr.App.1981); Daniels v. State, 615 S.W.2d 771 (Tex.Cr.App.1981); Joseph v. State, 614 S.W.2d 164 (Tex.Cr.App.1981); Wright v. State, 592 S.W.2d 604 (Tex.Cr.App.1980). Thus, had applicant sought to appeal the adjudication of guilt, the trial court would have been authorized to overrule applicant's request.
Applicant did not seek to appeal the adjudication of guilt, however. We think it apparent from the record that he sought to appeal his case urging the ground of error that concerned the trial court's entry of the nunc pro tunc order. Nothing in Art. 42.12, supra, prohibits appeal of matters unrelated to the determination of guilt after a deferred adjudication. In fact, a plain reading of the germane section indicates just the opposite. 1 If there is a prohibition against appealing a conviction that is in the posture of the present case, it must arise from some other source such as Art. 44.02, V.A.C.C.P., or the rule in Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972). No such source bars appeal in the case at hand, thus the trial court did not have the authority to "refuse" applicant's request to appeal.
We must now determine whether applicant is entitled to a writ of mandamus. This Court has jurisdiction to issue writs of mandamus under Tex. Const. Art. V, Sec. 5, and Art. 4.04, Sec. 1, V.A.C.C.P. A writ of mandamus may be granted in order to set aside an unauthorized order entered by a trial court. State ex rel. Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App.1984); Ex parte Gray, 649 S.W.2d 640 (Tex.Cr.App.1983), at 642, citing State ex rel. Vance v. Hatten, 600 S.W.2d 828 (Tex.Cr.App.1980); State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978); State ex rel. Pettit v. Thurmond, 516 S.W.2d 119 (Tex.Cr.App.1974); and State ex rel. Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971). See also State ex rel. Wilson v. Harris, 555 S.W.2d 470 (Tex.Cr.App.1977). We may also issue writs of mandamus in order to protect our jurisdiction. Clawson, supra.
In the case before us, the trial court did not have the authority to prohibit applicant from appealing, as a ground of error, the court's entry of a nunc pro tunc order. As previously stated, Art. 42.12, supra, prohibits appeal of the determination to adjudicate guilt; however, appeal on other matters is not proscribed. Thus, a writ of mandamus may lie in order to compel the trial court to vacate the improper order refusing applicant permission to appeal.
A party may obtain a writ of mandamus if he can establish two requirements: that the act sought to be compelled is purely ministerial, and that he has no other adequate remedy at law available. Holmes, supra at 899, citing Tex. Bd. of Pardons and Paroles v. Miller, 590 S.W.2d 142 (Tex.Cr.App.1979); Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980); and Routt, supra. See also Thurmond, supra and cases cited therein at 121.
In the case before us, since the trial court did not have the authority under law to refuse applicant "permission" to appeal the entry of the nunc pro tunc order, vacation of that order would be strictly ministerial in nature. See Harris, supra (); Thurmond, supra (); Clawson, supra ().
Moreover, on the facts of this case, applicant has no other remedy at law. Since the trial court refused applicant "permission" to appeal, applicant was prevented from following the steps necessary to perfect his appeal under Art. 40.09, V.A.C.C.P. Since appellant's sentence was pronounced on May 10, 1985, the Art. 40.09(3) and Art. 40.11 time limits for the court reporter to prepare the statement of facts has passed. Indeed, although there is no time limit imposed upon the clerk to prepare the transcript, under 40.09(1), we accept the fact that no transcript...
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