John Vallian v. State of Texas--Appeal from 13th District Court of Navarro County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-00-00107-CR

Case Date: 10/11/2000

Plaintiff: John Vallian

Defendant: State of Texas--Appeal from 13th District Court of Navarro County

Preview:John Vallian v. State of Texas--Appeal from 13th
District Court of Navarro County
John Vallian v. The State of Texas /**/
IN THE
TENTH COURT OF APPEALS
No. 10-00-107-CR
No. 10-00-108-CR
No. 10-00-109-CR
JOHN VALLIAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court Nos. 25,120, 25,229 and 25,230
O P I N I O N
The court revoked John Pitts Vallian s probation for felony criminal mischief (nos. 25,120 and 25,230), and burglary
of a habitation (no. 25,229). Vallian presents one point on appeal. Vallian claims that it was the intent of the trial court
that two sentences run concurrently and the third run consecutively after the expiration of the first two, as expressed in
the court s oral pronouncement. However, the written order provides that all three run consecutively. He requests that
we reform the judgment revoking probation to reflect the oral pronouncement of the trial court.
In 1993, Vallian pleaded guilty and was sentenced to ten years confinement for each offense. The court suspended
imposition of sentence and placed him on probation for ten years. The State filed a Motion to Revoke in November
1999. The court granted the Motion to Revoke in all three causes and orally pronounced sentence that causes 25,120
and 25,230 would run concurrently and that cause 25,229 would run consecutively from the end of the time of
incarceration for the other two causes. The written orders effectively provide that the sentences would run
consecutively. Vallian appealed in March 2000. Subsequently, the trial court entered a nunc pro tunc order on June 6,
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2000, purporting to correct the conflict between the oral pronouncement and the judgment revoking probation.
The purpose of a nunc pro tunc order is to correctly reflect the judgment actually made by the court when not entered
correctly. 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, not judicial admissions. Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980).
An error in entry of judgment is considered clerical so long as it is not a product of judicial reasoning. Id. The trial
court must also have jurisdiction to enter a nunc pro tunc order. Notice of Appeal by the defendant divests the trial
court of jurisdiction to enter a nunc pro tunc order. Ex parte Sisk, 317 S.W.2d 750, 751 (Tex. Crim. App. 1958). The
trial court is without jurisdiction to correct the clerical error in the record until the appeal is final. Bradshaw v. State,
331 S.W.2d 52, 53 (Tex. Crim. App. 1959). Absent appeal, the trial court may at any time make clerical corrections in
a judgment and sentence, nunc pro tunc. State v. Evans, 817 S.W.2d 807, 809 (Tex. App. Waco 1991, rev d on other
grounds, 876 S.W.2d 459 (Tex. Crim. App. 1992) (citing Alvarez, 605 S.W.2d at 617).
Vallian filed his Notice of Appeal prior to the nunc pro tunc order and consequently divested the trial court of
jurisdiction to enter a nunc pro tunc order. The nunc pro tunc order signed in this case is void.
The Texas Court of Criminal Appeals recently held that when there is a variation between the oral pronouncement of
sentence and the written memorialization of the sentence, the oral pronouncement controls. Coffey v. State, 979
S.W.2d 326, 329 (Tex. Crim. App. 1998).
In Vallian s case, the oral pronouncement of sentence conflicts with the written order. According to Coffey, the oral
pronouncement of sentence by the trial court controls over the written order in this case and the written order should
be modified.
Appellate courts are authorized to modify judgments to make the record speak the truth. Campos v. State, 927 S.W.2d
232, 236 (Tex. App. Waco 1996, no pet.)(citing French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992)). Where
the appellate court has evidence and information before it for modification, the judgment may be modified to reflect
the sentence pronounced. Banks v. State, 708 S.W.2d 460 (Tex. Crim. App. 1986). In this case, the reporter s record
reflects that the oral pronouncement of the trial judge intended to cumulate cause nos. 25,120 and 25,230, then have
cause no. 25,229 run consecutively from the completion of sentence on the first two causes.
Accordingly, we sustain appellant s first point and modify the judgment to state:
the sentences in cause numbers 25,120 and 25,230 shall run concurrently. The sentence in cause number 25,229 shall
begin when the sentences in cause numbers 25,120 and 25,230 shall have ceased to operate.
We affirm the judgment as modified.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Vance and
Justice Gray
Affirmed as modified
Opinion delivered and filed October 11, 2000
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