Weatherly v. State

• Decision Date: 07 January 2021
• Docket Number: No. 02-19-00394-CR,02-19-00394-CR
• Parties: ROHN M. WEATHERLY, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Appeals

ROHN M. WEATHERLY, Appellant v. THE STATE OF TEXAS

No. 02-19-00394-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

January 7, 2021

On Appeal from the 371st District Court Tarrant County, Texas

Trial Court No. 1380491D

Before Sudderth, C.J.; Womack and Wallach, JJ.

Memorandum Opinion by Justice Womack

Concurring Memorandum Opinion by Chief Justice Sudderth

Dissenting Memorandum Opinion by Justice Wallach

MEMORANDUM OPINION

I. INTRODUCTION

Appellant Rohn M. Weatherly appeals the trial court's "Nunc Pro Tunc Order Correcting Minutes of the Court" in which the trial court amended its January 15, 2016 judgment of conviction to contain sex-offender-registration requirements and the age of Weatherly's victim at the time the offense occurred. We affirm.

II. BACKGROUND

In October 2015, Weatherly pleaded guilty to the unlawful restraint of a child under the age of seventeen without a sentencing recommendation by the State. See Weatherly v. State, Nos. 02-16-00026-CR, 02-16-00027-CR, 2016 WL 7157300, at *1 (Tex. App.—Fort Worth Dec. 8, 2016, no pet.) (mem. op., not designated for publication). After the preparation of a pre-sentencing report and the holding of a punishment hearing, the trial court sentenced Weatherly to fifteen years' confinement. The trial court's January 15, 2016 judgment reflected that sex-offender-registration requirements did not apply to Weatherly and that the age of the victim at the time of the offense was "N/A." On direct appeal, this court affirmed the trial court's judgment. Id.

On October 18, 2019, the trial court rendered a nunc pro tunc order¹ amending the January 15, 2016 judgment to reflect that sex-offender-registration requirementsdid apply to Weatherly and that the age of the victim at the time of the offense "was younger than 17 years of age." This appeal followed.

III. DISCUSSION

In his sole issue, Weatherly argues that the trial court erred by entering the nunc pro tunc order modifying the January 15, 2016 judgment and that Chapter 62 of the Texas Code of Criminal Procedure—the statute which mandates that individuals convicted of the unlawful restraint of a child be required to adhere to sex-offender-registration requirements—is unconstitutional as applied to him. We conclude that the trial court properly entered its nunc pro tunc order and that Weatherly cannot attack the constitutionality of Chapter 62 in this appeal.

A. The Trial Court's Nunc Pro Tunc Order

Weatherly first argues that the trial court erred by entering the nunc pro tunc order. We disagree.

A judgment nunc pro tunc is the appropriate avenue to make a correction when the court's records do not mirror the judgment that was actually rendered.Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007); Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980). This means that a trial court can fix a clerical error in the record, but only errors that were not the result of judicial reasoning are considered clerical errors that can be fixed by a nunc pro tunc order. Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). However, the trial court cannot, through a nunc pro tunc order, change a court's records to reflect what it believes should have been done. Collins, 240 S.W.3d at 928. And when the law requires the trial court to enter a particular finding in the written judgment of conviction, the trial court "retain[s] no discretion to do otherwise," and "the failure of the trial judge to do so [is] not an error of judicial reasoning but rather an error of a clerical nature." Poe, 751 S.W.2d at 876.

Even though the unlawful restraint of a child is not considered a "sex offense," it is nonetheless a "[r]eportable conviction" that triggers Chapter 62's registration obligations. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(E); Dewalt v. State, 417 S.W.3d 678, 681-90 (Tex. App.—Austin 2013, pet. ref'd). Citing Dewalt, this court has held that the sex-offender-registration requirements and a child victim's age are statutorily mandated to be included in a trial court's judgment when a person has been convicted of a crime listed in Chapter 62. Williams v. State, No. 02-17-00001-CR, 2018 WL 3468458, at *4 (Tex. App.—Fort Worth July 19, 2018) (mem. op, not designated for publication), aff'd, 603 S.W.3d 439 (Tex. Crim. App. 2020). This court further held in Williams that the addition of the registration requirement and thevictim's age to a judgment is a "clerical act, not a judicial one, appropriate . . . for a nunc pro tunc order." Id. Not only are these additions a clerical act, but the trial court has no discretion but to include them in a judgment because the Texas Code of Criminal Procedure requires the trial court to enter these specific statements. Tex. Code Crim. Proc. art. 42.01, § 1(27) ("The judgment shall reflect: . . . In the event of conviction of an offense for which registration as a sex offender is required under Chapter 62, a statement that the registration requirement of that chapter applies to the defendant and a statement of the age of the victim of the offense."); Poe, 751 S.W.2d at 876.

In this case, Weatherly pleaded guilty to the unlawful restraint of a child, and the victim's age at the time of the offense was four years old. Weatherly, 2016 WL 7157300, at *1. As such, the requirements of Chapter 62 are met, and the trial court was required to include sex-offender-registration requirements and the age of Weatherly's victim in the judgment. Tex. Code Crim. Proc. arts. 42.01, § 1(27), 62.001(5)(E); see Tex. Penal Code Ann. § 20.02. Thus, the trial court did not err by rendering its nunc pro tunc order. We overrule this portion of Weatherly's sole issue.

B. Weatherly's Constitutional Argument

In the remainder of his sole issue, Weatherly complains that Chapter 62 is unconstitutional as applied to him because he did not commit a sex offense. The State argues that this court does not have jurisdiction to hear this complaint. We agree with the State.

Just as a trial court may not correct errors that are the result of judicial reasoning via nunc pro tunc, a reviewing court has limited jurisdiction to consider the propriety of a trial court's nunc pro tunc order—we do not have authority to review the underlying conviction or other ancillary matters related to the conviction. See Blanton v. State, 369 S.W.3d 894, 900, 904 (Tex. Crim. App. 2012). "The right of appeal before this Court is limited to the validity of the nunc pro tunc entry." Moore v. State, 446 S.W.2d 878, 879 (Tex. Crim. App. 1969); see also Cunningham v. State, 322 S.W.2d 538, 540 (Tex. Crim. App. 1959) ("In cases such as this the right of appeal, if any, is limited to the validity of the nunc pro tunc entry. Appellant is not entitled to appeal from the conviction itself . . . ."); Collins, 240 S.W.3d at 929 (explaining that an appeal from a nunc pro tunc order is not the correct procedure for deciding an issue related to the defendant's conviction).

This court and numerous other Texas courts of appeals have consistently applied this jurisdictional principle regarding the limited review in an appeal of a nunc pro tunc order. Loftin v. State, No. 02-11-00366-CR, 2012 WL 5512391, at *3 (Tex. App.—Fort Worth Nov. 15, 2012, no pet.) (per curiam) (mem. op., not designated for publication) (holding that as an appellate court reviewing the direct appeal of a nunc pro tunc order, court was precluded from considering complaint regarding underlying conviction); Allen v. State, Nos. 01-16-00707-CR, 01-16-00708-CR, 2016 WL 7473940, at *1 (Tex. App.—Houston [1st Dist.] Dec. 29, 2016, no pet.) (per curiam) (mem. op., not designated for publication) ("However, an appeal of a judgment nunc pro tunc islimited to issues related to the clerical errors addressed in that judgment and does not provide an opportunity to raise issues relating to the original conviction and sentence."); Hill v. State, No. 05-14-01067-CR, 2015 WL 2394099, at *2 (Tex. App.—Dallas May 18, 2015, pet. ref'd) (mem. op., not designated for publication) ("Appellant seeks to use the July 22, 2014 nunc pro tunc order to change, on appeal, the judicial determination of his underlying conviction, which is not a permissible purpose of the nunc pro tunc order."); Barnett v. State, No. 06-14-00149-CR, 2015 WL 5999663, at *2 (Tex. App.—Texarkana July 24, 2015, pet. ref'd) (mem. op., not designated for publication) ("Consequently, the appeal of a judgment nunc pro tunc is limited to issues related to the clerical errors addressed therein; it does not provide the appellant an opportunity to raise issues relating to the original conviction and sentence."). Thus, this court does not have the authority to address Weatherly's attack on the constitutionality of Chapter 62 in this appeal. Loftin, 2012 WL 5512391, at *3; see also State v. Rowe, 285 S.W.3d 614, 619 (Ark. 2008) (holding that a trial court cannot rule a statute unconstitutional post-conviction via nunc pro tunc because it is "an attempt to have the record reflect what should have happened and not what happened but was not recorded"); State v. Al-Hafeez, 305 N.W.2d 379, 380 (1981) ("The limited remedy available in an application for an order nunc pro tunc will not be extended to question the constitutionality of the actions taken or declined to be taken by the trial court, but is limited to the specific purpose of that proceeding, i.e.,to correct the record to accurately reflect what actually happened in the proceedings."). We overrule the remaining portion of Weatherly's sole issue.²

C. The Dissent

The dissent presents a number of issues that it has with the majority opinion and our position that we should not address Weatherly's constitutional claim in this appeal. We will address these issues in turn.

1. Jurisdiction over Weatherly's Appeal

According to the dissent, "The majority holds that this court does not have 'jurisdiction' over Weatherly's appeal from the fourth nunc pro tunc order." This is incorrect. Indeed, we have...