in the Matter of J. R., a Juvenile ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00201-CV
IN THE MATTER OF J. R., A JUVENILE,
From the 74th District Court
McLennan County, Texas
Trial Court No. 2011-272-J
MEMORANDUM OPINION
In this appeal, appellant, J.R., challenges the circumstances of his waiver of his
appellate rights and the trial court’s judgment nunc pro tunc. In four issues, appellant
argues that: (1) his waiver of appeal is invalid; (2) the trial court’s judgment nunc pro
tunc constituted an attempt to correct a judicial error and, thus, is void; (3) the equitable
doctrine of laches barred the entry of the judgment nunc pro tunc; and (4) the trial
court’s judgment nunc pro tunc is a nullity because it is not in the proper form. For the
reasons stated herein, we affirm as modified.
I. BACKGROUND
This is not the first time that this case has been before this Court. See generally In
re J.R., Nos. 10-12-00003-CV, 10-12-00201-CV, 2012 Tex. App. LEXIS 6900 (Tex. App.—
Waco Aug. 16, 2012, no pet.) (mem. op.) (per curiam). Previously, we addressed a
motion to dismiss filed by the State and a motion to transfer the record filed by
appellant. See id. at *1. Ultimately, we granted the State’s motion to dismiss appellate
cause number 10-12-00003-CV as moot “because the trial court addressed appellant’s
complaint regarding his registration as a sex offender in its judgment nunc pro tunc”;
however, we noted that appellant could challenge the validity of his waiver of his
appellate rights in this appellate cause number—10-12-00201-CV. See id. at **12-14. We
also granted appellant’s motion to transfer the record in appellate cause number 10-12-
00003-CV to this appellate cause number. See id. at *14. With this brief explanation of
the appellate procedural posture in mind, we move on to the discussion of the facts at
issue in this appellate cause number.
As noted above, appellant challenges, among other things, the validity of his
waiver of his appellate rights. Much of the discussion surrounding appellant’s waiver
is listed in our prior memorandum opinion; however, in the interest of thoroughness,
we will once again recite the pertinent facts. Id. at **3-6.
The State alleged in its amended petition that J.R. engaged in delinquent conduct
by committing four offenses: (1) indecent exposure; (2) burglary of a habitation; (3)
attempted sexual assault; and (4) sexual assault. Before the adjudication portion of the
proceeding, appellant, his mother, and his attorney signed a "Court's Admonition of
In the Matter of J. R., a Juvenile Page 2
Statutory and Constitutional Rights and Juvenile's Acknowledgement," which included
information about potential dispositions and several waivers. Among the waivers
contained in this document was the right to appeal.
At the beginning of the December 5, 2011 adjudication hearing, the trial court
confirmed that appellant understood the rights that he was waiving and that he waived
those rights voluntarily. The trial court also provided several admonishments,
including potential dispositions that could apply in this case—namely, probation at
home, probation with placement outside the home, and confinement at the Texas Youth
Commission ("TYC") for an indeterminate sentence. The trial court also informed
appellant that he could be required to register as a sex offender. Appellant
acknowledged that he discussed all of these matters with his trial counsel and that he
did not have any questions regarding his rights.
Appellant, his mother, and appellant's attorney also signed a written stipulation
in which appellant stipulated to the first three allegations contained in the State's
amended petition. The trial court discussed the stipulation with appellant and
subsequently admitted the stipulation into evidence. Thereafter, the trial court
concluded that appellant had engaged in delinquent conduct based on the signed
stipulation.
During the disposition phase, the State offered several reports and a social
history on appellant. The trial court learned that appellant had a previous juvenile
adjudication for which he had received felony probation. Appellant and his parents
testified at the hearing, and appellant requested that he be granted probation, placed in
In the Matter of J. R., a Juvenile Page 3
an inpatient-sex-offender-treatment program, and excused from the sex-offender-
registration requirement.
At the conclusion of the hearing, the trial court committed appellant to TYC for
an indeterminate period. In addition, the trial judge, in open court, ordered that
appellant register as a sex offender. However, contrary to the trial judge's statements in
open court, the December 5, 2011 disposition order deferred the registration
requirement pending the successful completion of a sex-offender-treatment program at
TYC.
Appellant subsequently filed a motion for new trial, which was denied. He then
filed his notice of appeal in appellate cause number 10-12-00003-CV. After appellant
filed his notice of appeal, the State, on May 8, 2012, filed a "Motion for Dispositional
Order of Commitment to the Texas Youth Commission Nunc Pro Tunc" in the trial
court. In this motion, the State requested that the trial court modify its December 5,
2011 disposition order to reflect the statement it made in open court—that appellant is
required to register as a sex offender. On the same day, the trial court granted the
State's nunc pro tunc motion and reformed the December 5, 2011 disposition order to
reflect that appellant is required to register as a sex offender. This appeal followed.
II. APPELLANT’S WAIVER OF HIS APPELLATE RIGHTS
In his first issue, appellant contends that he did not validly waive his appellate
rights. Specifically, appellant complains that the “trial court did not specifically discuss
the waiver of appeal with [appellant],” nor did it “confirm that [appellant] intended to
waive his right of appeal after pronouncing the court’s disposition.” Appellant also
In the Matter of J. R., a Juvenile Page 4
argues that his waiver is invalid because the State did not give consideration for the
waiver. We disagree.
A. Applicable Law
Texas courts have noted that the Texas and United States Constitutions do not
provide for a right of appeal. In re J.H., 176 S.W.3d 677, 679 (Tex. App.—Dallas 2005, no
pet.) (citing Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); In re Jenevein, 158
S.W.3d 116, 119 (Tex. Spec. Ct. Rev. 2003)). “The right to appeal is regulated by the
legislature, and the legislature ‘may deny the right to appeal entirely, the right to appeal
only some things, or the right to appeal all things only under some circumstances.’” Id.
(quoting In re Jenevein, 158 S.W.3d at 119). “Thus, when a legislative enactment says a
juvenile may appeal orders delineated in the statute, there is no right to appeal orders
not so included.” Id. (citing In re Jenevein, 158 S.W.3d at 119).
Section 56.01 of the Texas Family Code sets out a child’s right to appeal a juvenile
court’s orders and describes which of those orders are appealable. See TEX. FAM. CODE
ANN. § 56.01 (West Supp. 2012). Subsection (c) provides that an appeal may be taken:
(1) except as provided by Subsection (n), by or on behalf of a child from
an order entered under:
(A) Section 54.03 with regard to delinquent conduct or conduct
indicating a need for supervision;
(B) Section 54.04 disposing of the case;
(C) Section 54.05 respecting modification of a previous juvenile court
disposition; or
(D) Chapter 55 by a juvenile court committing a child to a facility for
the mentally ill or mentally retarded; or
In the Matter of J. R., a Juvenile Page 5
(2) by a person from an order entered under Section 54.11(i)(2)
transferring the person to the custody of the Texas Department of
Criminal Justice.
Id. § 56.01(c). However, subsection (n) limits the appellate rights of a child in the
following way:
A child who enters a plea or agrees to a stipulation of evidence in a
proceeding held under this title may not appeal an order of the juvenile
court entered under Section 54.03, 54.04, or 54.05 if the court makes a
disposition in accordance with the agreement between the state and the
child regarding the disposition of the case unless:
(1) the court gives the child permission to appeal; or
(2) the appeal is based on a matter raised by written motion filed
before the proceeding in which the child entered the plea or
agreed to the stipulation of evidence.
Id. § 56.01(n).
Further, any appellate rights that a juvenile may have can be waived. In fact,
section 51.09 of the Texas Family Code provides that:
Unless a contrary intent clearly appears elsewhere in this title, any right
granted to a child by this title or by the constitution or laws of this state or
the United States may be waived in proceedings under this title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and
understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in court proceedings that are
recorded.
TEX. FAM. CODE ANN. § 51.09 (West 2008).
In the Matter of J. R., a Juvenile Page 6
B. Discussion
In the present case, appellant was represented by an attorney at all times. At the
adjudication hearing, the trial court explained the charges filed against appellant and
noted the following:
THE COURT: And in addition to the amended petition[,] I do have
some other paperwork in front of me that you’ve
signed. One of those things is called The Court’s
Admonition of Statutory and Constitutional Rights
and Juvenile’s Acknowledgement. This is a four[-
]page document that does several things. One of the
things that it does is it lists most of the rights that you
have as a juvenile that’s charged with committing a
crime and by signing this on the last page, page four,
you’re telling me that you understand that you have
these rights, but you’re also telling me that you want
to waive these rights or give up these rights and
appear here today and go forward in this particular
case accompanied by your parents and your attorney.
And on the last page, page four, I can see that you,
your mother[,] and your lawyer have all signed this.
Did you understand the rights that were listed in here
before you signed this?
THE JUVENILE: Yes, sir.
THE COURT: Did you go over these things with Mr. Keathley
[appellant’s counsel] before you signed it?
THE JUVENILE: Yes, sir.
The trial court then described the potential outcomes of the proceeding, including
registration as a sex offender, probation, placement in a residential-treatment program,
or confinement with the TYC.
Subsequently, the trial court asked appellant if he understood the possible
outcomes of the proceeding, to which appellant responded, “Yes, sir.” The trial court
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then stated: “All right. Because you said you went over all of these things with Mr.
Keathley before you signed it, I’m not going to reread all of this to you, but do you have
any questions about the rights that you’re giving up today, [appellant]?” Appellant
answered, “No, sir.”
In addition, the record includes a copy of the “Court’s Admonition of Statutory
and Constitutional Rights and Juvenile’s Acknowledgement,” which was signed by
appellant, appellant’s mother, appellant’s attorney, and the trial judge on December 5,
2011—the day of the adjudication hearing—and stated the following:
WAIVER OF APPEAL
Now comes the aforementioned respondent in the above-entitled and
numbered cause, and the attorney for said child, in writing and in open
court, and after complete consultation with said attorney of record, and
being fully aware of the sentence heretofore pronounced against me by
the Court do state:
....
3) That I understand that I have the right to give notice of appeal and to
appeal from the judgment, sentence, or order of this Court unless
otherwise prohibited from doing so by the law;
....
I state that I desire to waive each and all of my rights to appeal,
including the filing [of] a motion for new trial, requesting permission to
appeal, appealing matters raised by written motion prior to trial, giving
notice of appeal, appealing the judgment, sentence, or order of the Court
and a free record, transcript, and attorney on appeal. I make this waiver
freely, intelligently[,] and voluntarily. I desire to accept the sentence or
order of this Court and ask the Court to allow me to waive all rights I
have to appeal. I ask the Court to approve this waiver which will render
the judgment, sentence, and order of the Court final in all respects.
In the Matter of J. R., a Juvenile Page 8
I have read the above and foregoing admonitions by the Court
regarding my rights. I have read the above and foregoing waivers. I
understand the admonitions and waivers, and understand and am aware
of the consequences of my plea or stipulation.
(Emphasis in original).
Based on our review of the record, appellant’s waiver of his appellate rights
meets all of the statutory requirements of section 51.09 of the Texas Family Code. See
TEX. FAM. CODE ANN. § 51.09. There is nothing in the record to support a contention
that appellant waived his appellate rights unintelligently, involuntarily, or
unknowingly. Accordingly, we cannot say that appellant’s waiver of his appellate
rights is invalid. See id.; see also Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003)
(noting that “waiver” is the intentional relinquishment of a right actually or
constructively known, or intentional conduct inconsistent with claiming that right);
Mandell v. Mandell, 214 S.W.3d 682, 692 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(stating that waiver is a matter of intent to be determined by the words, acts, and
conduct of the parties); Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213 (Tex. Civ.
App.—Amarillo 1981, writ ref’d n.r.e.) (explaining that a party’s express renunciation of
a known right can establish waiver).
Nevertheless, appellant appears to argue that we should adopt the criminal
standard in deciding whether a juvenile defendant’s waiver of appeal is valid. See
Washington v. State, 363 S.W.3d 589, 589-90 (Tex. Crim. App. 2012) (per curiam) (“But
when a defendant waives his right to appeal before sentencing and without an
agreement on punishment, the waiver is not valid.”). However, section 56.01(b) of the
In the Matter of J. R., a Juvenile Page 9
Texas Family Code states that “[t]he requirements governing an appeal are as in civil
cases generally.” TEX. FAM. CODE ANN. § 56.01(b) (West Supp. 2012). In fact, “[i]n
juvenile cases, the criminal standard for the burden of proof applies at trial, but the
procedure for civil cases applies on appeal.” In re E.U.M., 108 S.W.3d 368, 372 (Tex.
App.—Beaumont 2003, no pet.); see In re R.J.M., 211 S.W.3d 393, 394 (Tex. App.—San
Antonio 2006, pet. denied) (noting that appeals from delinquency proceedings are civil
in nature (citing Vasquez v. State, 739 S.W.2d 37, 42 (Tex. Crim. App. 1987) (plurality
op.))); see also In re S.J.P., No. 04-09-00005-CV, 2010 Tex. App. LEXIS 18, at *5 (Tex.
App.—San Antonio Jan. 6, 2010, no pet.) (mem. op.) (citing TEX. FAM. CODE ANN. §
51.17(a) (West Supp. 2012)). Because appeals from delinquency proceedings, such as
the one here, are civil in nature, we decline appellant’s invitation to adopt the criminal
standard in deciding whether his waiver of appeal is valid. Therefore, based on the
foregoing, we overrule appellant’s first issue.
III. THE TRIAL COURT’S JUDGMENT NUNC PRO TUNC
In his second, third, and fourth issues, appellant complains about the trial court’s
judgment nunc pro tunc. In particular, appellant argues that: (1) the trial court’s
judgment nunc pro tunc is void because it was not used to correct a clerical error; (2) the
doctrine of laches barred the entry of the judgment nunc pro tunc because both
appellant and TYC have relied to their detriment on the original December 5, 2011
order; and (3) the judgment nunc pro tunc is a nullity because it is not in the form of an
ordinary judgment.
In the Matter of J. R., a Juvenile Page 10
At the outset, we note that, in appellant’s first issue, we concluded that he validly
waived of all of his appellate rights. On that basis alone, we are empowered to overrule
appellant’s second, third, and fourth issues. See Jernigan, 111 S.W.3d at 156; Mandell, 214
S.W.3d at 692; Rowe, 619 S.W.2d at 213. However, neither party raised this issue on
appeal. Therefore, out of an abundance of caution, we will address the merits of
appellant’s complaints regarding the trial court’s judgment nunc pro tunc. See, e.g., In re
Snead, No. 13-11-00200-CV, 2012 Tex. App. LEXIS 6864, at *5 (Tex. App.—Corpus
Christi Aug. 16, 2012, no pet.) (mem. op.) (“A party may appeal from an order granting
judgment nunc pro tunc . . . .”) (citing TEX. R. APP. P. 4.3(b); Arkoma Basin Exploration Co.
v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 390-91 (Tex. 2008)).
A. Clerical Error v. Judicial Error
Under Rule 329b(d) of the Texas Rules of Civil Procedure, the trial court has
plenary power for thirty days after the judgment is signed to grant a new trial or to
vacate, modify, correct, or reform the judgment. TEX. R. CIV. P. 329b(d). After its
plenary power has expired, the trial court cannot set aside its judgment except by a bill
of review for sufficient cause. Id. at R. 329b(f). “However, the trial court may correct
clerical errors in the judgment at any time by using a judgment nunc pro tunc.” Barton
v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing
TEX. R. CIV. P. 316, 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986)). A clerical
error is a discrepancy between the entry of a judgment in the record and the judgment
that was actually rendered. See Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986); Butler
v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2000, pet.
In the Matter of J. R., a Juvenile Page 11
denied). A clerical error does not result from judicial reasoning, evidence, or
determination. Butler, 31 S.W.3d at 647. A judicial error occurs in the rendering, rather
than the entering, of the judgment. Escobar, 711 S.W.2d at 231. Whether an error is
clerical or judicial is a matter of law; therefore, we review the question de novo. Tex.
Dep’t of Pub. Safety v. Moore, 51 S.W.3d 355, 358 (Tex. App.—Tyler 2001, no pet.).
A judgment nunc pro tunc corrects clerical errors after the trial court has lost
plenary power. Ferguson v. Naylor, 860 S.W.2d 123, 126 (Tex. App.—Amarillo 1993, writ
denied); see TEX. R. CIV. P. 316, 329b(f). It cannot be used to make substantive changes to
the underlying judgment. In re Ward, 137 S.W.3d 910, 913 (Tex. App.—Texarkana 2004,
no pet.). If the issue in question is one of the primary judicial decisions the court made,
then any change made is material and is therefore a judicial error. Wood v. Griffin &
Brand of McAllen, 671 S.W.2d 125, 129 (Tex. App.—Corpus Christi 1984, no writ). A
court cannot use a judgment nunc pro tunc to change the terms of the original
judgment. Mathes v. Kelton, 569 S.W.2d 876, 877-78 (Tex. 1978); Cappadonna Elec. Mgmt.
v. Cameron County, 180 S.W.3d 364, 375 (Tex. App.—Corpus Christi 2005, no pet.).
When deciding whether an error in a judgment is clerical or judicial, we must look to
the judgment actually rendered and not the judgment that should have been rendered.
Escobar, 711 S.W.2d at 231. If the trial court corrects a judicial error after its plenary
power has expired, the judgment is void. See Dikeman v. Snell, 490 S.W.2d 184, 186 (Tex.
1973); see also Montemayor v. Garcia, No. 13-09-00342-CV, 2011 Tex. App. LEXIS 1157, at
*6 (Tex. App.—Corpus Christi Feb. 17, 2011, no pet.) (mem. op.).
In the Matter of J. R., a Juvenile Page 12
At the December 5, 2011 hearing, counsel for appellant requested, among other
things, that the trial court “defer or excuse [sex-offender] registration in this matter.”
Thereafter, the trial court rendered judgment, committing appellant to the TYC for an
indeterminate sentence. However, prior to the conclusion of the hearing, appellant’s
counsel asked, “And with regard to the registration, Your Honor?,” to which the trial
court responded, “I deny that request.” Thus, the reporter’s record clearly indicates
that the trial court denied appellant’s request to defer or excuse his registration as a sex
offender. However, the disposition order signed on the same day as the hearing did not
comport with the trial court’s oral pronouncement. The order provided, among other
things, that: “IT IS FURTHER ORDERED that Sex[-]Offender Registration is deferred
pending successful completion of a sex[-]offender treatment program as administered
by the Texas Youth Commission.” Realizing that the disposition order did not comport
with the trial court’s oral pronouncement, the State filed a “Motion for Dispositional
Order of Commitment to the Texas Youth Commission Nunc Pro Tunc” on May 8, 2012.
The trial court granted the State’s motion and entered the following order:
On the 5th day of December, 2011, the Court signed and entered a
Dispositional Order of Commitment to the Texas Youth Commission in
the above-referenced cause. It has come to the attention of the Court that
a clerical error exists in said Dispositional Order of Commitment to the
Texas Youth Commission in that the Court verbally ORDERED full sex[-
]offender registration, yet the Dispositional Order of Commitment to the
Texas Youth Commission contained language to defer sex[-]offender
registration. To correct this error, the Dispositional Order of Commitment
to the Texas Youth Commission is hereby reformed as follows:
“IT IS FURTHER ORDERED that Sex[-]Offender Registration is
deferred pending successful completion of a sex[-]offender treatment
program as administered by the Texas Youth Commission.”
In the Matter of J. R., a Juvenile Page 13
be replaced with the following:
“IT IS FURTHER ORDERED that [appellant] will complete full
sex[-]offender registration as required under Chapter 62 of the Texas Code
of Criminal Procedure.”
This Court has stated that: “Juvenile cases are most similar to criminal cases in
their procedure; however, juvenile appeals are to be governed by civil rules of appellate
procedure as far as practicable.” In re S.G., 304 S.W.3d 518, 521 (Tex. App.—Waco 2009,
no pet.) (citing In re D.I.B., 988 S.W.2d 753, 756 (Tex. 2001)). The change made in the
judgment nunc pro tunc pertained to a portion of the punishment imposed on account
of the trial court’s finding that appellant had engaged in delinquent conduct.
Accordingly, we believe that the criminal rules of procedure should be applied to this
stage of the proceedings. See In re S.G., 304 S.W.3d at 521; see also In re D.I.B., 988 S.W.2d
at 756 (“Juvenile proceedings are quasi-criminal in nature. The trial of a juvenile case is
governed by the Rules of Criminal Evidence and by Chapter 38 of the Code of Criminal
Procedure. However, on appeal our civil rules of appellate procedure govern as far as
practicable.”).
Further, Texas courts have held that, when the oral pronouncement of a sentence
in open court and the written judgment conflict, the oral pronouncement controls. See
Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003) (noting that, when the oral
pronouncement of a sentence in open court and the written judgment conflict, the oral
pronouncement controls); see also In re L.L., No. 07-08-0241-CV, 2009 Tex. App. LEXIS
904, at **7-8 & n.3 (Tex. App.—Amarillo Feb. 10, 2009, no pet.) (mem. op.) (modifying a
In the Matter of J. R., a Juvenile Page 14
written disposition order to reflect the trial court’s oral pronouncement); In re C.L.W.,
Nos. 05-05-00754-CV, 05-05-00776-CV, 05-05-00777-CV, 05-05-00778-CV, 05-05-00779-
CV, 2006 Tex. App. LEXIS 1152, at **6-7 (Tex. App.—Dallas Feb. 13, 2006, no pet.) (mem.
op.) (modifying a written disposition order to reflect the trial court’s oral
pronouncement) (citing Thompson, 108 S.W.3d at 290; Smith v. State, 176 S.W.3d 907, 920
(Tex. App.—Dallas 2005, no pet.)). Clearly, the trial court’s oral pronouncement
conflicted with the original disposition order, and the judgment nunc pro tunc merely
corrected the disposition order to reflect the trial court’s oral pronouncement.
Therefore, based on our review of the record, we conclude that the trial court’s
judgment nunc pro tunc corrected a clerical error in the original disposition order
regarding appellant’s registration as a sex offender—namely, changing the disposition
order to reflect the trial court’s oral denial of appellant’s request to excuse or defer
registration as a sex offender. And as such, we cannot agree with appellant’s assertion
that the trial court’s judgment nunc pro tunc corrected a judicial error and, thus, is
void.1
B. Laches
Next, appellant argues that the trial court’s judgment nunc pro tunc is improper
because both he and TYC have relied on the original disposition order to their
1 To the extent that it can be argued that the trial court could have “changed its mind” as to the
appropriate sentence for appellant between rendering judgment orally and entry of the final order, Texas
courts have stated that “because delinquency proceedings threaten a juvenile respondent with the loss of
his liberty, it is clear the respondent has the same constitutional right to be present at the proceedings as a
criminal defendant has.” In re C.T.C., 2 S.W.3d 407, 410 (Tex. App.—San Antonio) (citing U.S. CONST.
amend. VI; TEX. CONST. art. I, § 10; Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985); In re J.R., 907
S.W.2d 107, 109 (Tex. App.—Austin 1995, no writ); In re K.P.S., 840 S.W.2d 706, 710 (Tex. App.—Corpus
Christi 1992, no writ)). Therefore, in the event that the trial judge changed his mind, appellant has the
constitutional right to be present in open court when the disposition is announced. See id.
In the Matter of J. R., a Juvenile Page 15
detriment. Specifically, appellant asserts that he has participated in a sex-offender
treatment program for ten months despite the fact that the judgment nunc pro tunc
allegedly removes this requirement.
Laches is an equitable remedy that prevents a party from asserting a claim due to
a lapse of time. Green v. Parrack, 974 S.W.2d 200, 203 (Tex. App.—San Antonio 1998, no
pet.). Laches will bar a claim if a party unreasonably delayed in asserting a legal or
equitable right which then caused a good faith and detrimental change of position by
another party due to the delay. Id.; see Rogers v. Ricane Enters, Inc., 772 S.W.2d 76, 80
(Tex. 1989). The burden to prove these two elements is on the party asserting laches.
Green, 974 S.W.2d at 203-04.
Here, the State moved to correct the original disposition order upon receiving
notice from appellant’s brief pointing out the error. The record does not reflect that the
actions of the trial court and the State constituted an unreasonable delay. See id. at 203;
see also Rogers, 772 S.W.2d at 80. Furthermore, appellant and his trial attorney were
present at the December 5, 2011 hearing where the trial court denied appellant’s request
to excuse or delay his registration as a sex offender. As such, appellant was on notice of
his registration requirement. Especially considering laches is an equitable doctrine, we
do not believe that appellant can reasonably assert good-faith reliance or surprise based
on the clerical error contained in the original disposition order when he was on notice
of his registration requirement. See Green, 974 S.W.2d at 203. Further, appellant has not
adequately demonstrated how the error in the original disposition order worked an
injury to him. See Regent Int’l Hotels, Ltd. v. Las Colinas Hotels Corp., 704 S.W.2d 101, 106
In the Matter of J. R., a Juvenile Page 16
(Tex. App.—Dallas 1985, no writ) (“Generally, laches is a creature of equity. It is
principally a question of whether it is inequitable to permit a claim to be enforced if the
delay in asserting the claim has worked an injury to the opposing party.” (citing
Bordages v. Stanolind Oil & Gas Co., 129 S.W.2d 786, 790 (Tex. Civ. App.—Galveston 1938,
writ dism’d judgm’t cor.)). Accordingly, we cannot conclude that appellant has
satisfied his burden in proving the laches elements. See Rogers, 772 S.W.2d at 80; see also
Green, 974 S.W.2d at 203-04.
C. The Form of the Judgment Nunc Pro Tunc
In his final issue, appellant complains that the trial court’s judgment nunc pro
tunc is not in the form of an ordinary judgment and does not set aside the original
disposition order; thus, the judgment nunc pro tunc is a nullity. Here, despite
summarily stating that the “judgment is in proper form,” the State appears to assert that
the trial court’s judgment nunc pro tunc should be corrected or modified by this Court.
Because this Court is authorized to modify judgments, whether the trial court’s
judgment nunc pro tunc is a nullity matters not. In fact, section 56.01(i) of the Texas
Family Code vests appellate courts with authority to modify judgments in juvenile
proceedings. TEX. FAM. CODE ANN. § 56.01(i) (West Supp. 2012) (“The appellate court
may affirm, reverse, or modify the judgment or order, including an order of disposition
or modified disposition, from which appeal was taken.”). In addition, Texas appellate
courts have routinely corrected, modified, and reformed judgments to make the record
speak the truth. See In re J.M., 287 S.W.3d 481, 491 (Tex. App.—Texarkana 2009, no pet.)
(citing In re J.K.N., 115 S.W.3d 166, 174 (Tex. App.—Fort Worth 2003, no pet.); In re K.B.,
In the Matter of J. R., a Juvenile Page 17
106 S.W.3d 913, 916 (Tex. App.—Dallas 2003, no pet.)); Asberry v. State, 813 S.W.2d 526,
529-31 (Tex. App.—Dallas 1991, pet. ref’d) (en banc); see also TEX. R. APP. P. 43.2(b);
Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (noting that the authority of the
appellate courts to reform judgments is not limited to those situations involving
mistakes of a clerical nature). Therefore, to the extent that the trial court’s judgment
nunc pro tunc is not in a proper form, we will reform it to reflect all of the provisions
contained in the original disposition order except for the provision deferring appellant’s
registration as a sex offender. The reformed judgment nunc pro tunc will instead reflect
the paragraph contained in the un-reformed judgment nunc pro tunc—“IT IS
FURTHER ORDERED that [appellant] will complete full sex offender registration as
required under Chapter 62 of the Texas Code of Criminal Procedure.” This reformation
reflects the decision made by the trial judge at the December 5, 2011 hearing and makes
the record speak the truth. See In re J.M., 287 S.W.3d at 491; In re J.K.N., 115 S.W.3d at
174; In re K.B., 106 S.W.3d at 916; Asberry, 813 S.W.2d at 529-31; see also TEX. R. APP. P.
43.2(b); Bigley, 865 S.W.2d at 27.
And based on the foregoing, we overrule appellant’s second, third, and fourth
issues that complain about the trial court’s judgment nunc pro tunc.
IV. CONCLUSION
As stated earlier, we reform the trial court’s judgment nunc pro tunc to reflect all
of the provisions contained in the original disposition order except for the provision
deferring appellant’s registration as a sex offender. We leave the paragraph in the trial
In the Matter of J. R., a Juvenile Page 18
court’s judgment nunc pro tunc requiring appellant to register as a sex offender intact.
We affirm the judgment as modified.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray dissents. A separate opinion will not issue.)*
Affirmed as modified
Opinion delivered and filed January 10, 2013
[CV06]
In the Matter of J. R., a Juvenile Page 19