Janet Harrelson v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-06-160 CR NO. 09-06-161 CR ____________________

JANET HARRELSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 253rd District Court Liberty County, Texas Trial Cause Nos. CR24515, CR24516

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MEMORANDUM OPINION Janet Harrelson appeals the judgments nunc pro tunc requested by the State and entered by the trial court amending the date her terms of community supervision were to begin. We reverse and remand.

A jury found Harrelson guilty of forgery in Cause Number 24,515 and tampering with governmental record in Cause Number 24,516. On October 22, 2003, the trial court sentenced Harrelson to ten years' incarceration in the Texas Department of Criminal Justice - Institutional Division, probated for ten years, a $10,000 fine, and court costs in Cause Number 24,515. Harrelson also received a sentence for two years' incarceration in the Texas Department of Criminal Justice - State Jail Division, probated for five years, a $5,000 fine, and court costs in Cause Number 24,516.

On December 22, 2004, this Court affirmed both convictions. Harrelson v. State, 153 S.W.3d 75 (Tex. App.--Beaumont 2004, pet. ref'd). The Court of Criminal Appeals refused her petitions for discretionary review and this Court issued mandates on December 27, 2005. The State filed a motion to enter judgment nunc pro tunc in each case and requested the court add the following language to each of the original judgments: "Defendant appealed. Judgment of conviction affirmed. Mandate executed on December 27, 2005. Sentence begin date: December 27, 2005." The trial court granted the motions and directed the court clerk to prepare and enter the judgments nunc pro tunc. On March 28, 2006, the trial court signed the judgments nunc pro tunc with the additional language.

When an appeal is taken from a criminal conviction assessing a probated sentence, the terms of community supervision do not commence until mandate from the appellate court, effecting final disposition of the appeal, is issued. See Surety Corp. Of Am. v. State, 550 S.W.2d 689, 690 (Tex. Crim. App. 1977); Delorme v. State, 488 S.W.2d 808, 810 (Tex. Crim. App. 1973). After the mandates issued affirming Harrelson's convictions, the State filed its motions for entry of judgment nunc pro tunc to effectuate the mandates and have the judgments reflect the date the terms of Harrelson's community supervision would commence. Harrelson appeals the trial court's entry of the judgments nunc pro tunc. She maintains the judgments nunc pro tunc are void because they do not correct clerical errors from the original judgments. She also asserts that the wording "Begin sentence date: December 27, 2005," added by the trial court at the State's request, implies Harrelson has violated her probation and, in effect, modifies the original judgment.

A defendant may appeal the trial court's entry of a judgment nunc pro tunc. See Moore v. State, 446 S.W.2d 878, 879 (Tex. Crim App. 1969). Harrelson's right of appeal before this Court is limited to the validity of the nunc pro tunc entry. See id. The purpose of a judgment nunc pro tunc 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. Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). A trial court may enter a judgment nunc pro tunc to correct clerical errors in a judgment, but not judicial errors. Id. A clerical error does not result from judicial reasoning or determination. Id. A judgment nunc pro tunc is improper when it has the effect of making a new order. Ex parte Dickerson, 702 S.W.2d 657, 658 (Tex. Crim. App. 1986). Moreover, once a defendant appeals, the court's ability to correct "a failure to render judgment and pronounce sentence" by entering a judgment nunc pro tunc ceases. Tex. R. App. P. 23.1.

On this record, the judgments nunc pro tunc were not the proper vehicles to effectuate this Court's mandates. By adding the language requested by the State, the trial court modified the original judgments. The modifications were not to correctly reflect the trial court's original judgments, but to create new judgments effectuating the mandates. Even if the modifications were construed as correcting clerical errors, the judgments nunc pro tunc are void because they were entered after Harrelson appealed. The trial court erred in entering the judgments nunc pro tunc. See Poe, 751 S.W.2d at 876; Dickerson, 702 S.W.2d at 658.

Although we agree with Harrelson that the trial court should not have entered the judgments nunc pro tunc, the trial court acquired jurisdiction to enforce the mandates upon their issuance. See Yarbrough v. Texas, 703 S.W.2d 645, 649 (Tex. Crim. App. 1985) (citing State v. Klein, 154 Tex. Crim. 31, 224 S.W.2d 250 (1949)). When a conviction is affirmed by this Court, generally the trial court acquires special or limited jurisdiction to ensure that this Court's judgment is executed and its mandate carried out. Id. After an appeal, the trial court is only authorized to order execution of the sentence previously pronounced, and to perform such other ministerial duties as required by law. State ex. rel Wilson v. Harris, 555 S.W.2d 470, 472 (Tex. Crim. App. 1977). In this case, both mandates issued by this Court commanded the trial court to "in all things have [the mandate] duly recognized, obeyed and executed." This language requires the trial court to "take whatever reasonable action it deem[s] necessary to see that this Court's judgment [is] executed." Yarbrough, 703 S.W.2d at 648.

The trial court erred in entering the judgments nunc pro tunc but has jurisdiction to enforce this Court's mandates. We reverse the trial court's judgments nunc pro tunc and remand for the trial court to take reasonable action to effectuate the mandates.

REVERSED AND REMANDED.

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CHARLES KREGER

Justice

Submitted on October 5, 2006

Opinion Delivered March 7, 2007

Do not publish

Before Gaultney, Kreger and Horton, JJ.