Jones v. State , 1989 Tex. App. LEXIS 813 ( 1989 )

OPINION

DIES, Chief Justice.

We have previously had a different aspect of this case before our court. Jones v. State, 680 S.W.2d 580 (Tex.App.—Beaumont 1984, no pet.). Appellant Jones was found guilty of felony theft by a jury on May 10, 1982. The judge assessed punishment at ten years’ confinement in the Texas Department of Corrections but Appellant was placed on probation. A condition of probation was that Appellant pay an unspecified amount of restitution to be determined at a later time. On July 29, 1983, the judge set the total sum of restitution at $88,831.00 and ordered Appellant to commence payments of $200.00 per month. Another hearing was held for review of the restitution order on August 16, 1985, and Appellant was ordered to commence paying $700.00 per month. Appellant’s probation was revoked on March 6, 1987, which brings us the present appeal.

In Ms first four points of error, Appellant challenges the sufficiency of the evidence supporting the jury’s verdict of guilt. A probation revocation proceeding cannot be used to collaterally attack the underlying conviction. Traylor v. State, 561 S.W.2d 492 (Tex.Crim.App.1978); Ramirez v. State, 486 S.W.2d 373 (Tex.Crim.App.1972). These points are all overruled.

Point of error number five states: “The trial court erred in revoking Appellant’s probation as no valid judgment adjudicating the Appellant’s guilt was entered until February 10, 1987, almost two months after the State’s second amended motion to revoke probation was filed....”

TEX. CODE CRIM.PROC.ANN. ART. 42.01 (Vernon Supp.1989) sets out the requirements of a judgment. One of them (sec. 1, subd. 8) provides: “In the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury....” To be effective, the judgment must state that defendant is adjudged to be guilty. Richie v. State, 542 S.W.2d 422 (Tex.Crim.App.1976). A sentence must be based on a valid judgment. Thornton v. State, 576 S.W.2d 407 (Tex.Crim.App.1979). See also, Bell v. State, 656 S.W.2d 502 (Tex.App.—Tyler 1983, dism’d), holding the trial court erred in revoking probation where a judgment nunc pro tunc was the instrument which first validly placed defendant on probation and the alleged probation violations occurred before that judgment was entered. Here the judgment nunc pro tunc, which corrected the original judgment (which failed to set out sec. 1, subd. 8 of Art. 42.01 set out above) was entered on February 10, 1987. The State’s second amended motion to revoke probation was filed on December 22, 1986.

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. 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, but may not be used to correct judicial omissions. Id. Therefore, 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. Id.

In the present case, there is no evidence in the record, including the hearing on the motion for judgment nunc pro tunc, that the trial court ever adjudged Appellant guilty of theft prior to February 10, 1987, when such hearing was conducted. At the hearing on the motion for judgment nunc pro tunc, the trial court simply announced he would enter an adjudication of Appellant’s guilt nunc pro tunc effective as of August 9, 1982. The trial court can make corrections by way of a nunc pro tunc order to reflect what actually occurred at trial, but such corrections can only be made as to what was done and not as to what should have been done. Villarreal v. State, 590 S.W.2d 938, 939 (Tex.Crim.App.1979). Since there is no evidence that Appellant was adjudged guilty prior to February 10, 1987, the judgment entered on that date is not effective as a judgment nunc pro tunc. However, the trial court did have authority to render and enter an original adjudication of Appellant’s guilt on such date. TEX.R.APP.PROC. 36(a).

The probation violations for which Appellant’s probation was revoked occurred before he was placed on probation by a valid judgment and sentence. Appellant’s probation cannot be revoked upon the basis of violations occurring before Appellant was placed on probation. Littlefield v. State, 586 S.W.2d 534, 535 (Tex.Crim.App.1979). Therefore, the trial court erred in revoking Appellant’s probation. Appellant’s fifth point of error is sustained and the judgment of the trial court is reversed and the judgment is remanded to the trial court.

We also order that the “judgment” signed by the trial court on August 9,1982, is void and that the judgment signed on February 10, 1987, be reformed to reflect that it was rendered on that date and not on August 9, 1982.

Reversed and Remanded.