Willie Earl Hall Jr. v. State , 2012 Tex. App. LEXIS 4730 ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00303-CR
WILLIE EARL HALL JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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OPINION
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In two points, appellant Willie Earl Hall Jr. appeals the trial court’s
“Judgment Revoking Community Supervision.” We affirm.
Background Facts
In 2008, when appellant was fifteen years old, the State filed a petition
alleging that he had engaged in delinquent conduct. Appellant waived his rights
to confront witnesses and to have a jury trial, and he entered into a plea bargain
agreement with the State. The terms of the plea bargain included appellant’s
stipulation that he had committed aggravated sexual assault of a seven-year-old
child.1 Based on the plea bargain, the juvenile court adjudicated appellant to be
delinquent, assessed a five-year determinate sentence, suspended that sentence
for five years, and placed appellant on probation.2 Appellant’s probation began
on June 26, 2008.
In July 2010, pursuant to the State’s motion and a hearing that appellant
attended with counsel, appellant’s probation was transferred to a district court
(the trial court); the transfer order recognizes that appellant had already been
“found to have engaged in delinquent conduct.”3 In conjunction with the transfer
of his probation to the trial court, appellant signed a document stating that he
would comply with the conditions of his community supervision.
Although no document filed in the juvenile court had alluded to a deferral of
that court’s adjudication of appellant’s delinquency, and although the record from
the juvenile court clearly shows that appellant had been adjudicated delinquent,
documents filed in the trial court after the transfer, including one document titled
“Certificate of Proceedings,” state that appellant had been placed on deferred
adjudication in 2008.4 The trial court imposed several conditions on appellant’s
probation.
1
See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2011).
2
See Tex. Fam. Code Ann. § 54.04(d)(3), (q) (West Supp. 2011).
3
See id. §§ 54.04(q), .051(a), (d) (West Supp. 2011).
4
When a district court exercises jurisdiction over a juvenile through a
transfer of the juvenile’s probation under section 54.051 of the family code, the
2
In March 2011, the State filed a “Petition to Proceed to Adjudication,”
alleging that appellant had violated several terms of the probation. That petition
asked the trial court to require appellant to show cause why the court should not
proceed to the adjudication of his guilt. Two months later, the State filed its “First
Amended Petition to Revoke Probated Sentence,” which, unlike the first petition,
prayed for the trial court to require appellant to appear and show cause why his
“sentence should not be imposed and put into execution[] as the law provides.”
In July 2011, the trial court held a hearing on the amended petition to
revoke appellant’s probated sentence, not the original petition to proceed to
adjudication.5 Toward the beginning of the hearing, appellant recognized that he
had been placed on a “five-year straight probation” term while his sentence was
suspended. Appellant pled true to several allegations contained in the State’s
amended petition and judicially confessed to them; on the record, he expressed
his understanding that by entering pleas of true, the trial court could find that he
violated the terms of his probation and could sentence him to up to five years’
confinement. After appellant entered his pleas of true, the State rested.
Appellant called a few witnesses to testify about his behavior and treatment while
district court “shall place the child on community supervision . . . for the
remainder of the child’s probationary period and under conditions consistent with
those ordered by the juvenile court.” Id. § 54.051(e) (emphasis added).
5
Appellant recognized in his original brief that the State’s second petition
amended its first petition and that the trial court held a hearing on the second
petition.
3
he was on probation. In closing arguments, appellant’s counsel asked the trial
court to allow appellant to remain on probation, but the trial court verbally found
that appellant had violated the terms of his probation and sentenced him to four
years’ confinement.6
Although the trial court did not verbally purport to adjudicate appellant’s
guilt for aggravated sexual assault, the court originally entered a written judgment
titled “Judgment Adjudicating Guilt.” Appellant appealed that judgment,
contending that the judgment was improper. In an abatement order, we agreed
that the judgment was improper; we noted, in part, that double jeopardy bars a
conviction for the same act for which a juvenile has been adjudicated delinquent.
We explained in the abatement order that while the trial court had statutory
authority to revoke appellant’s probation and impose a prison sentence, it could
not convict appellant of aggravated sexual assault. Because the trial court’s
original written judgment adjudicating guilt differed from the court’s verbally
expressed intentions at the end of the revocation hearing, we noted in our
abatement order that the record suggested that a clerical error might have
occurred. Therefore, we abated the appeal, remanded the case to the trial court,
and ordered the trial court to conduct a hearing to determine whether the written
6
If a transferred defendant who has been adjudicated delinquent violates
the conditions of his probation, the district court may “reduce the prison sentence
to any length.” Id. § 54.051(e-2); Krupa v. State, 286 S.W.3d 74, 77 (Tex. App.—
Waco 2009, pet. ref’d). The trial court’s reduction of appellant’s sentence from
five years to four years indicates the court’s awareness of the modified
punishment range associated with section 54.051(e-2).
4
judgment contained a clerical error that was subject to correction. We notified
the trial court that if it determined that the written judgment contained a clerical
error, the court needed to correct the error through a nunc pro tunc judgment and
make findings of facts and conclusions of law concerning its decision about
whether the judgment contained a clerical error.
Upon our abatement, the trial court held a hearing in which it expressed,
The judgment [adjudicating guilt] does not reflect the intent of
this Court, nor does it reflect what actually happened at juvenile.
Mr. Hall was on a determinate sentence probation which is
what we would call in the adult system after transfer [of] a straight
probation. It was entered in the clerk’s record as a determinate
sentence deferred adjudication which this Court believes to be
impossible. That is incorrect. It’s a clerical error by the clerk. That
clerical order, unfortunately, was carried forward throughout the file,
which the Court’s intent in this case, which was reflected in the
revocation hearing, is that this is the straight probation that was
transferred from juvenile. This Court does not have any intent to
change that, nor does this Court believe this Court has the power to
change a finding of guilt that’s already been entered into a deferred
adjudication. And every document thereafter that reflects a deferred
adjudication, including the judgment adjudicating guilt, needs to be
changed to be in conformity with the determinate sentence straight
probation that Mr. Hall was on. [Emphasis added.]
After the hearing concluded, the trial court signed a “Nunc Pro Tunc Order
Correcting Minutes of the Court,” which changed the title of the original judgment
from “Judgment Adjudicating Guilt” to “Judgment Revoking Community
Supervision.” Appellant filed a supplemental brief in which he asserts two points
and asks us to discharge him from custody and release him from further
community supervision.
5
The Propriety of the Nunc Pro Tunc Order
In the first point of his supplemental brief, appellant argues that the trial
court’s original judgment adjudicating guilt was not the product of a clerical error.
Appellant first contends that the “trial court at the [abatement] hearing did not
address whether the signing of the judgment adjudicating guilt was . . . the result
of a clerical error.” We disagree with this factual contention; as shown above,
during the abatement hearing, the trial court made clear on the record that the
judgment adjudicating guilt did not reflect the intent of the court and that, instead,
a clerical error had been “carried throughout the file.” Also, the trial court’s final
conclusion of law, which the trial court entered after the abatement hearing,
states, “In this case, because the intent of this Court was to continue Appellant’s
straight probation and have a normal recovation proceeding, this Court’s
judgment reflecting an adjudication of guilt was the product of a clerical error.”
Appellant also argues that even assuming that the trial court stated that the
signing of the judgment adjudicating guilt was a clerical error, the record does not
support that statement, but it rather shows that the trial court made an error
caused by judicial reasoning that could not be corrected through a nunc pro tunc
order. The classification of an error as clerical or judicial is a question of law.
See Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988); Alvarez v.
State, 605 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1980). Clerical errors
in judgments are subject to correction through judgments nunc pro tunc. English
v. State, 592 S.W.2d 949, 955–56 (Tex. Crim. App.), cert. denied, 449 U.S. 891
6
(1980); Johnson v. State, 233 S.W.3d 420, 425–26 (Tex. App.—Fort Worth 2007,
pet. ref’d); In re Hancock, 212 S.W.3d 922, 927 (Tex. App.—Fort Worth 2007,
orig. proceeding).
A judgment may reflect a clerical error when it incorrectly records the
judgment rendered, so long as a product of judicial reasoning is not involved.
See Alvarez, 605 S.W.2d at 617. A court “renders” a judgment when “orally in
open court or by written memorandum signed by [it] and delivered to the clerk,
the [court] pronounces . . . a decision of the law upon given state of facts.”
Westbrook v. State, 753 S.W.2d 158, 160 (Tex. Crim. App. 1988) (Clinton, J.,
concurring) (citing Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.
1970)); see also S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995)
(“Judgment is rendered when the trial court officially announces its decision in
open court . . . .”). The purpose of a nunc pro tunc judgment is to reflect the truth
of what actually occurred in the trial court. Alvarez, 605 S.W.2d at 617. “The trial
court cannot, through a judgment nunc pro tunc, change a court’s records to
reflect what it believes should have been done.” Collins v. State, 240 S.W.3d
925, 928 (Tex. Crim. App. 2007). 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.” Id. (quoting Wilson v. State, 677
S.W.2d 518, 521 (Tex. Crim. App. 1984)). When a trial court corrects its records
to reflect the truth of what happened in the court, the court is correcting a clerical
error, not a judicial error. See Poe, 751 S.W.2d at 876; see also In re Cherry,
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258 S.W.3d 328, 333 (Tex. App.—Austin 2008, orig. proceeding) (explaining that
a “nunc pro tunc order can only be used to make corrections to ensure that the
judgment conforms with what was already determined and not what should have
been determined”).
These cases illustrate that the question that we must resolve in
determining the validity of the trial court’s nunc pro tunc judgment is whether the
nunc pro tunc judgment truthfully aligns with the judgment that the court originally
rendered or, instead, whether the nunc pro tunc judgment changes, through
judicial reasoning, the judgment that the court originally rendered. As we have
explained above, the record from the revocation hearing indicates that the trial
court and the parties understood that the State was proceeding on its amended
petition, which sought only revocation of appellant’s probation, and not on its
original petition, which sought adjudication of his guilt. At the end of the
revocation hearing, the trial court stated,
Mr. Hall, the Court having received your pleas of true to
Paragraphs 1, 2, 4, and 5, the Court will find those allegations to be
true and find that you violated the terms and conditions of your
probation.
....
I’ll set your sentence at four years[’] confinement in the
Institutional Division of the Texas Department of Criminal Justice.
It will be the order of this Court that you be delivered by the
sheriff of Tarrant County to the director of the Institutional Division
where you’ll serve your sentence as required by law.
As this excerpt from the record shows, in orally rendering its judgment, the
8
trial court did not purport to adjudicate appellant’s guilt, which is what the original
written judgment reflected. Instead, the court unambiguously revoked appellant’s
probation and sentenced him, and the nunc pro tunc order accurately reflects this
judicial reasoning.
Thus, under the authority cited above, we hold that the trial court did not
err by entering the nunc pro tunc order and changing the title of the judgment
from one adjudicating guilt to one revoking community supervision. Cf. Collins,
240 S.W.3d at 928 (“It is clear from the record of the trial court that there was no
clerical error that this judgment nunc pro tunc was correcting. The written
judgment perfectly matches the judgment pronounced in court.”).
Finally, we note that appellant did not object to the fact that the revocation
hearing proceeded on the amended petition. He also did not object in the trial
court to any nonconformity between the trial court’s oral rendition of judgment
that sentenced him to confinement by revoking straight probation and documents
that had previously been filed in the case that indicated that he was on deferred
adjudication. And appellant concedes that he had notice of the “term and
conditions of his probation and [of] his required behavior to avoid being placed in
jail.”
For all of these reasons, we overrule appellant’s first point.7
7
In his original brief, appellant’s sole point stated, “The document entitled
Judgment Adjudicating Guilt was not authorized by law . . . .” Because we have
held that the trial court did not err by entering its nunc pro tunc order, which
9
Double Jeopardy
In his second point, appellant asserts that the “order of the trial court
placing [him] on deferred adjudication probation as well as his subsequent
conviction violated [his] rights to be free of double jeopardy.”8 As we have
explained,
The Double Jeopardy Clause of the United States Constitution
provides that no person shall be subjected to twice having life or limb
in jeopardy for the same offense. U.S. Const. amend. V. Generally,
this clause protects against (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same
offense.
Washington v. State, 326 S.W.3d 302, 311 (Tex. App.—Fort Worth 2010, pet.
ref’d) (citing Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006));
see also Ex parte Wheeler, 203 S.W.3d 317, 322 (Tex. Crim. App. 2006) (“The
double jeopardy provisions of the federal and Texas constitutions protect a
citizen from repeated attempts at prosecution for the same criminal offense.”).
Appellant argues that he suffered a second prosecution for the same
offense after conviction when, according to documents filed after the transfer of
his suspended sentence and probation from the juvenile court, he was placed on
replaced the judgment adjudicating guilt with a judgment revoking community
supervision, we overrule appellant’s point from his original brief.
8
Appellant cites double jeopardy provisions contained in the federal and
state constitutions and in a state statute. He does not argue that the state double
jeopardy standard differs from the federal standard with respect to his issues
raised in his point.
10
deferred adjudication and therefore faced the threat of being adjudicated guilty.
The court of criminal appeals has concluded that double jeopardy bars a
conviction for the same act for which a juvenile has been adjudicated delinquent.
See Ex parte Elizalde, 594 S.W.2d 105, 106 (Tex. Crim. App. 1980) (op. on
reh’g) (citing Breed v. Jones, 421 U.S. 519, 532, 541, 95 S. Ct. 1779, 1787, 1791
(1975)); Van Hatten v. State, 97 Tex. Crim. 123, 125, 260 S.W. 581, 582 (1924)
(“[I]f a juvenile is proceeded against as a delinquent child . . . he cannot again be
prosecuted by the state and convicted of a felony upon the identical offense upon
which the delinquency conviction was predicated.”); see also Tex. Fam. Code
Ann. § 54.02(j)(3) (West Supp. 2011) (stating that a district court may initiate
criminal proceedings over a juvenile only when “no adjudication concerning the
alleged offense has been made”); In re M.A.V., 88 S.W.3d 327, 329–30 (Tex.
App.—San Antonio 2002, no pet.) (discussing Breed). Therefore, while the trial
court had statutory authority to revoke appellant’s probation and impose a prison
sentence, see Tex. Fam. Code Ann. § 54.051(e-2), it could not convict appellant
of aggravated sexual assault.
Appellant argues that the “record clearly reflects that [he] was charged with
and convicted of the same offense for a second time.” We disagree. As
described above, the trial court explained in the abatement hearing that
references to deferred adjudication after the transfer from the juvenile court were
unintended clerical errors. The actual order transferring appellant’s case from
the juvenile court to the trial court did not reference deferred adjudication; it
11
correctly explained that appellant had already been adjudicated delinquent and
had been placed on probation. The State sought revocation of the probation in
its amended petition, which did not seek adjudication of guilt, and the trial court
verbally rendered judgment in accordance with the amended petition. Finally,
although the trial court’s initial written judgment incorrectly stated that appellant
had been adjudicated guilty despite the absence of any rendition of guilt from the
trial court’s record, the trial court has corrected that judgment through its nunc
pro tunc order. For these reasons, we reject appellant’s claim that the trial
court’s proceedings violated federal or state principles of double jeopardy, and
we overrule his second point.
Conclusion
Having overruled appellant’s points in his original and supplemental briefs,
we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
PUBLISH
DELIVERED: June 14, 2012
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