Xavian Tremaine Wilson v. State ( 2011 )

Affirmed and Memorandum Opinion filed December 1, 2011.
In The
Fourteenth Court of Appeals
NO. 14-10-00842-CR
NO. 14-10-00843-CR
XAVIAN TREMAINE WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause Nos. 1216140 & 1225263
MEMORANDUM OPINION
Appellant entered guilty pleas to the offenses of attempted capital murder and
aggravated robbery. He requested preparation of a presentence investigation report on
which a hearing was conducted on July 29, 2010. At the conclusion of the hearing, the
trial court sentenced appellant to life in prison for attempted capital murder, and 40 years
for aggravated robbery. In a single issue, appellant argues the trial court’s judgments
nunc pro tunc should be struck because they do not reflect the oral pronouncement of
sentence, and contains judicial reasoning. We affirm.
Background
Appellant entered pleas of guilty to attempted capital murder and aggravated
robbery. After preparation of a presentence investigation (PSI) report, the trial court held
a hearing on punishment. At the beginning of the hearing, defense counsel raised the
issue of appellant’s competency to plead guilty. The court noted that the court’s file
contained a Competency and Sanity Evaluation, in which it was determined that appellant
was competent to stand trial. The State did not present any evidence on punishment other
than the PSI report. The defense presented the testimony of appellant and his sister.
At the conclusion of the hearing, the trial court assessed sentence for the attempted
capital murder at life in prison, and assessed 40 years’ confinement for the aggravated
robbery. The trial court further stated, ―And have the cases run consecutively.‖ On the
same day, the trial court signed judgments in both convictions, and noted that the
sentences ―shall run consecutively.‖ On September 8, 2010, the trial court signed
judgments nunc pro tunc in each case. In those judgments, the court stated that it held a
hearing on its own motion, and corrected each judgment to clarify the order in which the
sentences were to be served. Specifically, the court noted:
The sentences shall run consecutively as follows: the life sentence in the
Attempted Capital Murder case, Cause No. 1216140, will begin to run on
07/29/2010; the 40 years sentence in the Aggravated Robbery–Deadly
Weapon case, Cause No. 1225263 will begin to run when the sentence in
the Attempted Capital Murder case, Cause No. 1216140 has ceased to
operate and not before that time.
Judgments Nunc Pro Tunc
In a single issue, appellant contends the entry of the judgments nunc pro tunc were
improper because they do not reflect the oral pronouncement of the sentences, and
contains judicial reasoning, not merely a correction of a clerical error.
A judgment nunc pro tunc is the appropriate avenue to make a correction when the
court’s records do not mirror the judgment that was actually rendered. Alvarez v. State,
605 S.W.2d 615, 617 (Tex. Crim. App. 1980). A trial court can correct a clerical error in
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the record, but only errors that were not the result of judicial reasoning are considered
clerical errors that can be corrected by a nunc pro tunc order. Ex parte Poe, 751 S.W.2d
873, 876 (Tex. Crim. App. 1988). The trial court cannot, through a judgment nunc pro
tunc, change a court’s records to reflect what it believes should have been done. Ex parte
Dopps, 723 S.W.2d 669, 671 (Tex. Crim. App. 1986). Thus, 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).
Generally, when the same defendant is convicted in two or more cases, the trial
court has discretion to order those sentences to run either consecutively or concurrently.
Tex. Code Crim. Proc. Ann. art. 42.08. The cumulation order should be sufficiently clear
so that it may be understood without having to refer to other evidence. Stokes v. State,
688 S.W.2d 539, 540 (Tex. Crim. App. 1985). A trial court may correct a cumulation
order nunc pro tunc to add descriptive details of the prior offenses inadvertently omitted
from the trial court’s first cumulation order. See Williams, 675 S.W.2d 754, 765 n. 6
(Tex. Crim. App. 1984); see also Strahan v. State, 306 S.W.3d 342, 353 (Tex. App.—
Fort Worth 2010, pet. ref’d).
In this case, in the oral pronouncement of the sentences the trial court mentioned
its intent to stack the sentences and ordered them to run consecutively; the judgments in
each case also captured this concept. However, as set forth above, neither the oral
pronouncement nor the judgments in each case stated which case’s sentence was to be
served first. The judgment nunc pro tunc in each case corrected that omission, showing
that the sentence for Cause No. 1216140 would be served first. Because a trial court may
correct a cumulation order nunc pro tunc to add descriptive details, the judgments nunc
pro tunc were the proper vehicle for the trial court to accomplish what it set out to do in
its oral pronouncement. See Strahan, 306 S.W.3d at 353 (in cumulation order involving
several counts, judgment nunc pro tunc was proper to correct omission regarding which
case’s sentence would be served first.). Appellant’s sole issue is overruled.
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The judgments of the trial court are affirmed.
PER CURIAM
Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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