In re Frank Garcia Jr.--Appeal from 268th District Court of Fort Bend County (Majority)

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State: Texas

Court: Texas Northern District Court

Docket No: 01-11-00796-CR

Case Date: 12/29/2011

Preview:Opinion issued December 29, 2011.

In The

Court of Appeals
For The

First District of Texas
------------------------

NO. 01-11-00796-CR ---------------------- IN RE FRANK GARCIA, JR., Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION By petition for writ of mandamus, relator, Frank Garcia, Jr., seeks mandamus relief compelling the trial court to vacate its judgment nunc pro tunc or, in the alternative, compelling the trial court to rule on his Application Requesting Judicial Notice to Vacate Judgment and Order of Commitment Nunc Pro Tunc.

Background On April 16, 1998, a jury found relator guilty of aggravated assault and assessed his punishment at confinement for 32 years. Four years later, on

September 16, 2002, the trial court entered a judgment nunc pro tunc, stating that the original judgment erroneously reflected, No for the jury's finding on whether relator had used a deadly weapon in the commission of the offense, and the trial court changed the judgment to reflect an Affirmative finding. The trial court also issued an order of commitment nunc pro tunc, reflecting the same change in the original order of commitment. On May 19, 2011, relator filed in the trial court an application requesting that it vacate the judgment nunc pro tunc and reinstate the original judgment.1 Analysis Relator argues that the trial court erred in entering its judgment nunc pro tunc because it corrected a judicial error which was beyond the jurisdiction of the trial court. A trial court has plenary power for 30 days after a judgment is signed to grant a new trial or to vacate, modify, correct, or reform its judgment. TEX. R. CIV. P. 329b(d). Once a trial court's plenary power expires, it cannot set its judgment aside except by a bill of review for sufficient cause. TEX. R. CIV. P. 329b(f).
1

Although relator asserts that he filed the application on April 23, 2011, court records indicate that the application was filed on May 19, 2011. 2

However, a trial court may at any time correct a clerical error in the judgment by entering a judgment nunc pro tunc. TEX. R. CIV. P. 316; 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986); Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.--Houston [1st Dist.] 2005, no pet.). A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered. Barton, 178 S.W.3d at 126 (citing Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986)); Butler v. Cont'l Airlines, Inc., 31 S.W.3d 642, 647 (Tex. App.--Houston [1st Dist.] 2000, pet. denied). A clerical error does not result from judicial reasoning, evidence, or determination. Barton, 178 S.W.3d at 126. In contrast, a judicial error arises from a mistake of law or fact that requires judicial reasoning to correct. Id. A judicial error occurs in the rendering, rather than the entering of the judgment. Id. (citing Escobar, 711 S.W.2d at 231). A trial court can only correct the entry of a final written judgment by a judgment nunc pro tunc if the final written judgment incorrectly states the judgment actually rendered. Id. Even if a trial court incorrectly renders judgment, it cannot alter a written judgment that precisely reflects the incorrect rendition. Id. If a trial court corrects a judicial error after its plenary power has expired, its judgment is void. Id. (citing Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973)).

3

Here, the record shows that the judgment rendered at trial included an affirmative finding on the use of a deadly weapon during the commission of the offense, but the written judgment, under Findings on the Use of a Deadly Weapon, stated, No. The jury found relator guilty of aggravated assault as

charged in the indictment, in which it was alleged that relator did then and there use and exhibit a deadly weapon, to-wit: AN UNKNOWN OBJECT during the commission of [the] assault. On direct appeal to this Court, relator argued that the evidence was insufficient to prove appellant used or exhibited a deadly weapon and that the jury verdict was incomplete on the issue of a deadly weapon because the jury had not answered the special issue concerning use of a deadly weapon. Garcia v. State, 17 S.W.3d 1, 4

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