Miller v. State

• Decision Date: 18 March 1981
• Docket Number: No. 66228,No. 3,66228,3
• Citation: 702 S.W.2d 586
• Parties: Marvin MILLER, Surety, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 586

702 S.W.2d 586

Marvin MILLER, Surety, Appellant, v. The STATE of Texas, Appellee.

No. 66228.

Court of Criminal Appeals of Texas Panel No. 3.

March 18, 1981.

Rehearing Denied Feb. 5, 1986.

Charles D. Butts and Shirley W. Butts, San Antonio, for appellant.

Bill M. White, Dist. Atty., and Barry P. Hitchings and John J. Horn, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.

OPINION

TOM G. DAVIS, Judge.

This is an appeal by Marvin Miller as surety from six final judgments forfeiting appearance bonds totaling $92,500.

In each of the six cases, Lawrence Tatsch was principal and Marvin Miller was surety. On December 6, 1979, final judgments of forfeiture based upon the State's motion for summary judgment and accompanying documents were entered for the full amount of each of the bonds by the Honorable H.F. Garcia, then presiding judge of the 144th Judicial District Court. The State subsequently on April 24, 1980, filed an application in each of the cases asking the court to enter a judgment nunc pro tunc. On July 17, 1980, a hearing was held before the Honorable Edward C. Prado in the 144th Judicial District Court on the State's motion for a judgment nunc pro tunc. An extensive hearing was held and after the submission of post-hearing briefs, the State's motion was granted and a final judgment of forfeiture nunc pro tunc was entered on September 8, 1980, in each of the cases. Subsequently, on September 23, 1980, an amended judgment nunc pro tunc was entered by the trial court in response to objections filed by the surety appellant Marvin Miller. It is from the entry of each of these amended judgments nunc pro tunc that this appeal is taken.

The appellant presents two contentions on this appeal. He first argues that the trial court erred in entering judgments nunc pro tunc after the State of Texas had induced the trial court to enter a final judgment and the State was therefore estopped from denying the validity of the final judgments previously entered. The appellant next contends that the trial court erred by adding the appellant's name to each of the six judgments that had become final by operation of law which had excluded the appellant, thereby correcting a judicial error after the judgments had become final, contrary to all Texas law. For the reasons stated below, we disagree and affirm.

An examination of the voluminous records in this case discloses that on November 30, 1979, a hearing was held before Judge Garcia on six motions for summary judgment in each of the bond forfeiture cases before us. The record of this hearing reflects in pertinent part as follows:

"THE COURT. All right. 79-CI-2384, 79-CI-2385, 79-CI-2386, 79-CI-2387, 79-CI-2388 and 79-CI-2389, each case entitled The State of Texas versus Lawrence Tatsch, Principal, and Marvin Miller, Surety ... In considering the cases that [have] been enumerated here in The State of Texas versus Lawrence Tatsch, Principal, and Marvin Miller, Surety, which are all bond forfeiture cases, is the Defendant in custody?

"MR. VALDEZ: He is not in custody.

"THE COURT: He is not now in custody anywhere in the United States?

"MR. VALDEZ: No, sir.

"THE COURT: All right. Then, in reviewing the motions for summary judgments filed by the State in all of these cases, the Court is going to grant the State's motion for a summary judgment in each one of these cases. The State will prepare a judgment accordingly."

At the hearing on the motion for entry of a judgment nunc pro tunc, Judge Garcia testified as follows on direct examination:

QUESTIONS BY MR. HITCHINGS:

"Q. Judge Garcia, in granting the State's motion for Summary Judgment, what was your intent in doing that?

"A. Granting the State's Motion for Summary Judgment? It was my intent, as the Judge of the 144th, to grant the judgment against Principal and Surety.

"Q. And that would apply in all six cases against Marvin Miller and Lawrence Tatsch?

"A. Yes, sir.

"Q. And when you made the statement, in the Statement of Facts, that the State will prepare a judgment accordingly, what did you expect from the State?

"A. I think my instructions to the State's Attorney was, 'to prepare a judge accordingly,' and that meant a judgment against the Principal and Surety in all cases that were before the Court."

* * *

"Q. Now, Judge Garcia, on December 6, 1979, do you recall being presented with judgments for your signature in these cases?

"A. I know judgment was presented to me. I don't have any independent recollection of when they were brought in, or how, or who.

"Q. In Cause Number 79-CI-2385, at the time that you signed that judgment, Judge Garcia, was it your intention to sign that judgment either remitting or exonerating Marvin Miller.

"A. No.

"Q. And in signing this judgment, Judge Garcia, did you intend that judgment to reflect what you--the decision that you had actually rendered on November 30th, 1979?

"A. Yes. I instructed the District Attorney, at that time, to bring in a judgment accordingly with my judgment against Principal and Surety in each case.

* * *

"Q. And one final question, Judge Garcia. The judgments that you signed on December 6, 1979, did those judgments correctly coincide with your decision on November 30th, 1979?

"A. No."

In the recent case of Alvarez v. State, 605 S.W.2d 615 (Tex.Cr.App. 1980), this Court affirmed a final judgment forfeiting an appearance bond holding that a misrecital in the final judgment as to the court in which the forfeiture was taken was properly corrected by a judgment nunc pro tunc. This Court stated:

"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)."

In the instant case, we conclude that the omission of the appellant's name from the original judgment signed on December 6, 1979, was clearly the result of clerical error. The State's motions for summary judgments were against both Tatsch as principal and appellant as surety. When the court called these motions for hearing it noted that both Tatsch and appellant were parties. The court in ruling on the motions stated, "the Court is going to grant the State's motion for a summary judgment in each one of these cases." Further, at the hearing on the motion to enter judgment nunc pro tunc, it is clearly reflected that the trial court intended to enter judgment against both the principal and the surety. ¹ There is no evidence of any affirmative intent by the State to enter a judgment other than that pronounced by the court on November 30, 1979. As this Court held in Alvarez, a trial court retains the power to enter a nunc pro tunc order correcting a clerical error which may appear in the judgment even though more than thirty days have passed from the original entry of the judgment. Appellant's contentions are overruled.

The judgment is affirmed.

TEAGUE, Judge, dissenting.

The facts show that on November 20, 1976, the surety, Marvin Miller, made six bail bonds for the principal, Lawrence Tatsch, causing Tatsch to be released from the custody of the sheriff of Bexar County. On February 21, 1978, the causes were called for trial, but Tatsch did not appear and the bail bonds were ordered forfeited. A judgment nisi subsequently issued to make the forfeiture final, the surety was served, and he filed a sworn answer to the State's motion for summary judgment, alleging, inter alia, that the bail bonds were insufficient in law to warrant an adjudication of liability against him in favor of the State. See and compare Balboa v. State, Tex.Cr.App., 612 S.W.2d 553 (1981).

On March 20, 1979, the State filed a sworn motion for summary judgment, merely setting forth the prior events relating to the filing of the judgment nisi. A hearing was set for April 13, 1979. An amended judgment nisi was apparently filed on March 27, 1979, correcting an erroneous date: the original judgment nisi alleged erroneously the date of November 20, 1976, which was, as noted, the date the bail bonds were made and not the date of the forfeitures. Another sworn pleading in answer thereto was filed on April 11, 1979, and the matter was reset for May 4, 1979, reset again for May 11, 1979, and was thereafter reset for July 27, 1979, but not heard.

On August 22, 1979, another amended motion for summary judgment was filed, but was not sworn to. A hearing was set for October 5, 1979. The surety filed a first amended answer to this pleading, alleging and swearing to what he had sworn to and alleged earlier. In addition, the surety filed a "Response to Amended Motion for Summary Judgment," setting out why the State's motion for summary judgment was insufficient under law, and also filed a sworn "Motion to Quash Notice and Setting for Summary Judgment." On the hearing date, the attorney representing the State filed a sworn affidavit signed by D. Premont, who appears to be a secretary in the Bexar County District Clerk's office, in support of his motion for summary judgment. The matter was then reset again until November 30, 1979.

On November 30, 1979, a "trial" was held before the Hon. H.F....