in Re Erwin G. Robertson ( 2012 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 10,
2012.
In The
Fourteenth Court of Appeals
NO. 14-12-00560-CR
IN RE ERWIN G. ROBERTSON, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
177th District Court
Harris County, Texas
Trial Court Cause No. 1280514
MEMORANDUM OPINION
On June 18, 2012, relator Erwin G. Robertson filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52.
In the petition, relator asks this court to compel the Honorable Kevin Fine, presiding
judge of the 177th District Court of Harris County, to grant his motion for judgment nunc
pro tunc. We deny the petition.
On March 25, 2011, relator was convicted of possession of hydrocodone and
sentenced, pursuant to a plea bargain agreement with the State, to eight years in the
Institutional Division of the Texas Department of Criminal Justice. In the judgment,
under the heading, “Findings on Deadly Weapon,” the trial court wrote, “True—yes, a
firearm.” On the second page of the judgment under the heading, “Furthermore, the
following special findings or orders apply:” the trial court wrote, “Deadly Weapon. The
court finds Defendant used or exhibited a deadly weapon, namely, a firearm, during the
commission of a felony offense or during immediate flight therefrom or was a party to
the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim.
Proc. art. 42.12 § 3g.”
Relator subsequently filed a motion for judgment nunc pro tunc complaining of
the court’s deadly-weapon finding. A document from the Harris County District Clerk
reflects that on May 11, 2012, the trial court denied relator’s motion. A notation from the
district clerk reflects that “The findings were made by the court and the signature
accompanying the findings are that of the Presiding Judge.” Relator filed this mandamus
proceeding in which he asks this court to compel the trial court to grant his motion for
judgment nunc pro tunc in compliance with article 42.12 of the Texas Code of Criminal
Procedure.
The Court of Criminal Appeals has determined that matters that may be raised and
resolved by nunc pro tunc proceedings are appropriately remedied by requiring a
defendant to present the issue to the trial court by way of a nunc pro tunc motion as
relator has done here. See Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App.
2004). Review of the trial court’s action or inaction on the motion for judgment nunc pro
tunc is by way of petition for writ of mandamus to the court of appeals. Id. at 149.
In this case, however, relator has not provided this court with a sufficient record to
establish that he is entitled to relief. See Tex. R. App. P. 52 .7. Such a record would
have to demonstrate that relator’s motion for judgment nunc pro tunc was to correct a
clerical error. A nunc pro tunc order may correct clerical errors in a judgment, but not
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judicial omissions or errors resulting from judicial reasoning. Compare Ex parte Poe,
751 S.W.2d 873, 876 (Tex. Crim. App. 1988) (trial court’s entry of judgment nunc pro
tunc to reflect jury’s finding of deadly weapon was proper because omission in original
judgment was clerical error), with Fanniel v. State, 73 S.W.3d 557, 559 (Tex. App.—
Houston [1st Dist.] 2002, no pet.) (trial court’s entry of judgment nunc pro tunc to
include affirmative finding of deadly weapon was improper because absence of such
finding in original judgment was result of judicial reasoning, rather than clerical error).
Relator has failed to show that the alleged error in the judgment was the result of clerical
error rather than judicial reasoning.
Relator has not established entitlement to the extraordinary relief of a writ of
mandamus. Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Frost, McCally, and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
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