Jones v. State, 09-87-085-CR
| Decision Date | 22 February 1989 |
| Docket Number | No. 09-87-085-CR,09-87-085-CR |
| Citation | 766 S.W.2d 844 |
| Parties | Dearing E. JONES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
We have previously had a different aspect of this case before our court. Jones v. State, 680 S.W.2d 580 (Tex.App.--Beaumont 1984, no pet.). Appellant Jones was found guilty of felony theft by a jury on May 10, 1982. The judge assessed punishment at ten years' confinement in the Texas Department of Corrections but Appellant was placed on probation. A condition of probation was that Appellant pay an unspecified amount of restitution to be determined at a later time. On July 29, 1983, the judge set the total sum of restitution at $88,831.00 and ordered Appellant to commence payments of $200.00 per month. Another hearing was held for review of the restitution order on August 16, 1985, and Appellant was ordered to commence paying $700.00 per month. Appellant's probation was revoked on March 6, 1987, which brings us the present appeal.
In his first four points of error, Appellant challenges the sufficiency of the evidence supporting the jury's verdict of guilt. A probation revocation proceeding cannot be used to collaterally attack the underlying conviction. Traylor v. State, 561 S.W.2d 492 (Tex.Crim.App.1978); Ramirez v. State, 486 S.W.2d 373 (Tex.Crim.App.1972). These points are all overruled.
Point of error number five states: "The trial court erred in revoking Appellant's probation as no valid judgment adjudicating the Appellant's guilt was entered until February 10, 1987, almost two months after the State's second amended motion to revoke probation was filed...."
TEX.CODE CRIM.PROC.ANN.ART. 42.01 (Vernon Supp.1989) sets out the requirements of a judgment. One of them (sec. 1, subd. 8) provides: "In the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury...." To be effective, the judgment must state that defendant is adjudged to be guilty. Richie v. State, 542 S.W.2d 422 (Tex.Crim.App.1976). A sentence must be based on a valid judgment. Thornton v. State, 576 S.W.2d 407 (Tex.Crim.App.1979). See also, Bell v. State, 656 S.W.2d 502 (Tex.App.--Tyler 1983, dism'd), holding the trial court erred in revoking probation where a judgment nunc pro tunc was the instrument which first validly placed defendant on probation and the alleged probation violations occurred before that judgment was entered. Here the judgment nunc pro tunc, which corrected the original judgment (which failed to set out sec. 1, subd. 8 of Art. 42.01 set out above) was entered on February 10, 1987. The State's second amended motion to revoke probation was filed on December 22, 1986.
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. Ex parte Dopps, 723 S.W.2d 669, 670 (Tex.Crim.App.1986). A nunc pro tunc order may be used to correct clerical errors in a judgment, but may not be used to correct judicial omissions. Id. Therefore, before a judgment nunc pro tunc may be entered, there must be proof that the proposed judgment was actually rendered or pronounced at an earlier time. Id.
In the present case, there is no evidence in the record, including the hearing on the motion for judgment nunc pro tunc, that the trial court ever adjudged Appellant guilty of theft prior to February 10, 1987, when such hearing was conducted. At the hearing on the motion for judgment nunc pro tunc, the trial court simply announced he would enter an adjudication of Appellant's guilt nunc pro tunc effective as of August 9, 1982. The trial court can make corrections by way of a nunc pro tunc order to reflect what actually occurred at trial, but such corrections can only be made as to what was done and not as to what should have been done. Villarreal v. State, 590 S.W.2d 938, 939 (Tex.Crim.App.1979). Since there is no evidence that Appellant was adjudged guilty prior to February 10, 1987, the judgment entered on that date is not effective as a judgment nunc pro tunc. However, the trial court did have authority to render and enter an original adjudication of Appellant's guilt on such date. TEX.R.APP.PROC. 36(a).
The probation violations for which Appellant's probation was revoked occurred before he was placed on probation by a valid judgment and sentence. Appellant's probation cannot be revoked upon the basis of violations occurring before Appellant was placed on probation. Littlefield v. State, 586 S.W.2d 534, 535 (Tex.Crim.App.1979). Therefore, the trial court erred in revoking Appellant's probation. Appellant's fifth point of error is sustained and the judgment of the trial court is reversed and the judgment is remanded to the trial court.
We also order that the "judgment" signed by the trial court on August 9, 1982, is void and that the judgment signed on February 10, 1987, be reformed to reflect that it was rendered on that date and not on August 9, 1982.
Reversed and Remanded.
Respectfully this dissent is filed. A narrative of some of the more crucial background facts and proceedings would be helpful and enlightening. The reported case of Jones v. State, 680 S.W.2d 580 (Tex.App.--Beaumont 1984, no pet.) is, I think, a good beginning point. That previous opinion of this Court involving Dearing E. Jones as Appellant held as a ground of the dismissal that the Appellant, Dearing E. Jones, stated in his brief that no appeal was taken from his conviction for theft and none is now taken as to the conviction. This conviction of the Appellant occurred after the trial on the merits of Jones in May of 1982. Hence, from the prior opinion of this Court it is clearly proved that Mr. Jones had been convicted and was found guilty of theft.
The judgment that was filed August 9, 1982 contained a recitation, stating in substance, that the jury retired in charge of the proper officer to consider their verdict as to the guilt or innocence of the defendant, Dearing E. Jones, and on May 10, 1982 the jury brought into open court its verdict with the defendant, Jones, and defendant's counsel both being present. In due form of law the jury returned the following verdict which was received by the court and was entered into the minutes of the court. The verdict was read: "WE, THE JURY, find the defendant, DEARING ESTES JONES, GUILTY of the offense of Theft as charged in the indictment." Mr Jones received a copy of the resulting judgment which included his right thumbprint.
In fact, there is in the record a letter from the Appellant himself stating clearly that he understood that he had been convicted of the offense charged. I think that even if the judgment filed August 9, 1982, did not in so many exact words recite that the defendant was adjudged guilty of the offense as found by the verdict, it certainly did comply in substance with TEX.CODE CRIM.PROC.ANN. art. 42.01, sec. 1, subd. 8 (Vernon Supp.1989). Another reason for my opinion is that the same judgment ordered Appellant Jones to be confined in the State Department of Corrections for a period of ten years but that part of the sentence was suspended so that the ends of justice could be subserved. Then the sentence was suspended and Mr. Jones was placed on probation for ten years upon certain terms and conditions which were set out clearly and in detail. All of these provisions in the judgment demonstrate that any omitted words were merely a clerical error. Furthermore, Jones abided by the judgment for years and recognized it as valid, enforceable and subsisting. The judgment has long since become final and unappealable. Jones cannot now attack it collaterally; it is not void.
Nextly, as I read and interpret the Rules of Appellate Procedure, Rule 36, on nunc pro tunc proceedings, judgment and sentence, said Rule 36 provides that unless a new trial has been granted or unless the judgment was actually arrested or an appeal had been taken from that judgment, then the failure of the trial court to enter the judgment and pronounce the sentence may be corrected at any time by entering the judgment and pronouncing the sentence. Rule 36 clearly provides that these acts may be done at any time. Rule 36(b) provides for a proper credit to be given on the sentence that was finally pronounced for all the time that the defendant has spent in confinement. The nunc pro tunc judgment filed November 21, 1984, was certainly well within the purview of TEX.R.APP.P. 36. I must respectfully take exception with the Court's construction of Article 42.01 and Rule 36 wherein the majority opinion took the position that there was no valid judgment which in turn would sustain the amended motion to revoke probation filed herein. I am of the opinion that this nunc pro tunc...
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Stafford v. State, 06-99-00123-CR
...may be entered, there must be proof that the proposed judgment was actually rendered or pronounced at an earlier time. Id.; Jones v. State, 766 S.W.2d 844, 846 (Tex. App. Beaumont 1989, no pet.). In this case, the nunc pro tunc judgment does not reflect the prior actions of the court. We re......
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Jones v. State
...February 10, 1987, and that his probation might not, therefore, be revoked for violations predating that judgment. Jones v. State, 766 S.W.2d 844 (Tex.App.--Beaumont 1989). Because of substantial disagreement on the court of appeals, we granted the State's petition for discretionary review.......