in Re Charles L. Grable ( 2009 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed December 31, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00922-CR

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IN RE CHARLES LEE GRABLE, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

            On October 26, 2009, relator, Charles Lee Grable, filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator complains of the January 3, 2008 order denying his motion for judgment nunc pro tunc by the Honorable Mary Lou Keel, presiding judge of 232nd District Court of Harris County.  Relator requests that we compel Judge Keel to grant his motion for judgment nunc pro tunc. 

            As an initial matter, relator’s petition does not comply with the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 20.1, 52.7(a)(1). Notwithstanding these deficiencies, relator has not shown that he is entitled to mandamus relief. 

            On April 3, 1998, the trial court entered an order deferring adjudication of guilt for indecency with a child and assessed punishment at five year’s probation on relator’s plea of guilty.  The order states that there was “No Agreed Recommendation.”  Subsequently, on July 24, 1998, relator’s guilt was adjudicated and punishment was assessed at 16 years’ confinement in the Texas Department of Criminal Justice, Institutional Division.  See Grable v. State, No. 14-02-00335-CR, 2002 WL 1000398 (Tex. App.—Houston [14th Dist.] May 16, 2002, no pet.). 

            Relator asserts “[t]he record reflects that the trial judge inadvertently recorded the wrong terms of the plea arrangement in the judgment, and has now declined to correct the record ‘nunc pro tunc.’”  Relator claims that he “entered into a negotiated plea in which the prosecution had threatened additional charges against [him] and [his] wife as response for [relator’s] going to trial,” but, instead, the judgment incorrectly documents that he entered into an open plea with no agreed recommendation.  On January 3, 2008, the trial court denied relator’s “motion for nunc pro tunc for judgment amendment.” 

            “The purpose of a nunc pro tunc order 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.”  Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980).  Before a judgment nunc pro tunc may be entered, there must be proof that the proposed judgment was actually rendered or pronounced at an earlier time.  Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim. App. 1984).  “‘A correction can be made to reflect what actually occurred at trial by entry of nunc pro tunc judgment, but 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 Chaney v. State, 494 S.W.2d 813, 814 n.1 (Tex. Crim. App. 1973)).

            Included in relator’s unsworn record is a September 22, 2000 affidavit of Dick DeGuerin, the attorney who presented relator, and the letter DeGuerin wrote relator on January 14, 2008, setting forth his discussions with the prosecutor and the trial court.  Relator also includes a copy of the State’s response to relator’s application for writ of habeas corpus and the trial court’s February 1, 1999 findings of fact and order in that habeas proceeding which reference a plea agreement.

            The documents relator attaches to his petition do not demonstrate that the trial court rendered or pronounced a prior judgment that reflects a plea agreement with the State as required to be entitled to a judgment nunc pro tunc. 

            Relator has not established that he is entitled to mandamus relief.  Accordingly, we deny relator’s petition for writ of mandamus.

                                                                        PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.

Do Not Publish—Tex. R. App. P. 47.2(b).