Rohn M. Weatherly v. State ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00394-CR
___________________________
ROHN M. WEATHERLY, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1380491D
Before Sudderth, C.J.; Womack and Wallach, JJ.
Concurring Memorandum Opinion by Chief Justice Sudderth
CONCURRING MEMORANDUM OPINION
Although I join the majority opinion and agree that it correctly reflects the
current status of the law, I write separately to urge the Court of Criminal Appeals to
reconsider its characterization of “judicial error” in the context of judgments nunc pro
tunc. In my mind, the substantive change made to the judgment here should be
considered a “judicial error,” notwithstanding that the change was made to comply
with the law.
Here, the trial court erred at the outset in its decision to omit the requirement
that Weatherly register as a sex offender. Because the requirement to register as a sex
offender implicates fundamental rights and liberty interests, the nunc pro tunc
judgment adding this requirement involved a substantive change in the judgment.
Such a change should not be classified as a correction of a “clerical error” unless the
record reflects that the trial court’s true decision was to impose this requirement but it
was erroneously omitted from the judgment signed.
Later, when the trial judge considered the law and decided to alter the judgment
to require that Weatherly register as a sex offender, that was a deliberate act resulting
from a judicial decision to follow the law. The test should be whether the change was
substantive and whether the court considered the issue and made a judicial
determination. If so, then the judgment nunc pro tunc, if signed outside of the trial
court’s plenary power, should be declared void.
2
To hold otherwise would allow a trial court to ignore the law and sign
erroneous judgments with full knowledge that a defendant’s fundamental rights and
liberty interests could be later altered dramatically through a judgment nunc pro tunc,
with no right provided to the defendant to appeal the change or lodge a challenge to
the constitutionality of the law later imposed. 1 And, to that extent, I agree with the
dissent that, under such circumstances, procedural due process rights are violated by
denying a defendant a meaningful opportunity to appeal the changes made to the
judgment that has been rendered against him.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 7, 2021
1
At a minimum, our courts should be allowed to review substantive changes
like the one made here despite the case’s procedural posture. “The criminal law
should not be a series of traps for the unwary,” and correcting the trial court’s
oversight should not result in a penalty to the unwary defendant. See United States v.
Hussein, 351 F.3d 9, 13 (1st Cir. 2003). Thus, when a clerical correction brings an
issue of substance to light for the first time, a defendant should be permitted to
challenge that issue as he or she would in any other appeal.
3