State v. Collins, No. 05-05-01057-CR (TX 4/11/2006)
| Decision Date | 11 April 2006 |
| Docket Number | No. 05-05-01057-CR.,05-05-01057-CR. |
| Parties | THE STATE OF TEXAS, Appellant, v. JEREMY PAUL COLLINS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 22398-422.
Judgment Nunc Pro Tunc VACATED; Original Judgment REINSTATED.
Before Justices RICHTER, LANG, and MAZZANT.
Appellee Jeremy Paul Collins pled guilty to possession of more than four, but less than 200 grams of methamphetamine, a second-degree felony. The trial court accepted Collins's plea and imposed punishment at five years' confinement with a thirty-four day credit for pre-sentence jail time, or "back time." Subsequently, the trial court rendered judgment nunc pro tunc granting Collins an additional 271 days of back time credit. The State filed this appeal from the nunc pro tunc judgment.
In a single issue, the State argues the district court lacked jurisdiction to render judgment nunc pro tunc to award Collins additional back time that Collins agreed to relinquish as part of his plea bargain. Because we conclude the trial court lacked jurisdiction to render judgment nunc pro tunc, we vacate the nunc pro tunc judgment and reinstate the trial court's April 25, 2005 judgment.
Jeremy Paul Collins pled guilty to second-degree possession of methamphetamine and was sentenced on April 25, 2005. The trial court accepted Collins's plea and imposed punishment at five years' confinement with a thirty-four day credit for back time. Collins did not file a motion for new trial or perfect an appeal. However, on June 30, 2005, he filed an application for writ of habeas corpus or motion for judgment nunc pro tunc in the trial court, arguing that he was entitled to additional back time credit of 271 days.
At a hearing on his motion, Collins's attorney urged that Collins was entitled to back time credit from June 29, 2004, when the detainer was placed on him by Kaufman County, until April 25, 2005, the date of his sentence in the instant case, because he was in continuous custody in Louisiana and not on bond in the instant case from June 29, 2004 to April 25, 2005. He argued that the appropriate remedy was to enter a judgment nunc pro tunc awarding the back time credit. The State argued that Collins had waived the additional back time as part of the plea agreement and that the trial court lacked "authority" to alter the agreement. On August 1, 2005, the trial court rendered judgment nunc pro tunc granting Collins credit for an additional 271 days of back time. The State filed this appeal from the nunc pro tunc judgment.
We have jurisdiction over this appeal under rule 44.01(a)(2) of the Texas Code of Criminal Procedure and State v. Gutierrez, 129 S.W.3d 113, 114 (Tex. Crim. App. 2004). Tex. Code Crim. Proc. Ann. art. 44.01(a)(2) (Vernon 2006). In Gutierrez, the Court of Criminal Appeals concluded that Gutierrez, 129 S.W.3d at 114. The trial court's plenary jurisdiction to modify its sentence expires thirty days after sentencing unless a defendant files a motion for new trial or motion in arrest of judgment within that thirty-day period. Tex. R. App. P. 21.4, 22.3; State v. Aguilera, 135 S.W.3d 695, 697-98 (Tex. Crim. App. 2005).
The trial court is required to grant defendants back time credit when sentence is pronounced. Tex. Code Crim. Proc. Ann. art. 43.02 § 2(a) (Vernon 2006); Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). "If the trial court fails to award back time credit at the time the sentence is imposed, the trial court has the authority to correct the judgment to reflect the appropriate back time credit by a nunc pro tunc order and should do so." In re Daisy, 156 S.W.3d 922, 924 (Tex. App.-Dallas 2005, no pet.) (quoting Ybarra, 149 S.W.3d at 148); see also Tex. R. App. P. 23.2 ().
After the expiration of the trial court's plenary jurisdiction, the trial court retains the authority to enter a judgment nunc pro tunc to correct clerical errors in a judgment. Smith v. State, 15 S.W.3d 294, 299 (Tex. App.-Dallas 2000, no pet.). "The purpose of a nunc pro tunc order is to correctly reflect in the records of the trial court the judgment it actually made, but which for some reason did not enter of record at the proper time." Id. at 298. A judgment nunc pro tunc is improper, however, when it has the effect of making a new or independent judgment. Ex parte Dickerson, 702 S.W.2d 657, 658 (Tex. Crim. App. 1986); Smith, 15 S.W.3d at 299. Entry of a judgment nunc pro tunc may be made to correct a judgment to properly reflect the actual order, but may not be used to modify or add additional provisions to an order previously entered. Ex parte Dickerson, 702 S.W.2d at 658; Smith, 15 S.W.3d at 299. "Correction can be only as to what was done and not as to what should have been done." Ex parte Dopps, 723 S.W.2d 669, 670 (Tex. Crim. App. 1986) (quoting Villarreal v. State, 590 S.W.2d 938, 939 (Tex. Crim. App. 1979); Chaney v. State, 494 S.W.2d 813, 814 n. 1 (Tex. Crim. App. 1973)).
A judgment nunc pro tunc may be used to correct clerical errors in a judgment, but not judicial omissions. Ex parte Dopps, 723 S.W.2d at 670; Smith, 15 S.W.3d at 299. A clerical error is defined as one that does not result from judicial reasoning or determination. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994). The correction of a clerical error only involves a process to insure that the record truthfully reflects what actually happened, but this process does not allow for or permit readjudication or the reopening of a controversy. Smith, 15 S.W.3d at 299; see Smith v. State, 801 S.W.2d 629, 633 (Tex. App.-Dallas 1991, no pet.).
The State argues that the district court lacked jurisdiction to render judgment nunc pro tunc to award Collins additional back time because, although back time is mandatory, a district court lacks jurisdiction to change the back time after it loses plenary jurisdiction unless it is acting to correct a mistake. See Ex parte Ybarra, 149 S.W.3d at 148; Smith, 15 S.W.3d at 299. In this case, the parties agreed to five years' imprisonment with thirty-four days' back time credit. The trial court accepted this plea agreement and imposed punishment as agreed by the parties. The original judgment correctly reflected the proceeding in the trial court.
While the trial court is required to grant defendants back...
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