Michael Dygert-Tarr v. the State of Texas ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00374-CR
Michael Dygert-Tarr, Appellant
v.
The State of Texas, Appellee
FROM THE 452ND DISTRICT COURT OF MCCULLOCH COUNTY
NO. 6741, THE HONORABLE ROBERT R. HOFMANN, JUDGE PRESIDING
MEMORANDUM OPINION
Michael Dygert-Tarr was charged with the offense of murder. See Tex. Penal Code
§ 19.02. During the guilt-innocence phase, the jury found him guilty of the charged offense. The
jury charge for the punishment phase included an instruction asking the jury to determine whether
he committed the murder while under the influence of sudden passion, which if found would
reduce the offense level to that of a second-degree felony. Id. § 19.02(d). After considering the
evidence during the punishment phase, the jury determined that the offense occurred while he was
under the influence of sudden passion and assessed his punishment at twenty years’ imprisonment.
See id. § 12.33. At the end of the punishment phase, the trial court orally pronounced its sentence
consistent with the jury’s verdicts. Although the written judgment of conviction reflects the
sentence orally pronounced, the written judgment states that Dygert-Tarr was convicted of a
first-degree felony. In one issue, he argues the trial court erred by entering a judgment contrary to
the jury’s verdict. We will modify the judgment of conviction and affirm it as modified.
DISCUSSION
On appeal, Dygert-Tarr asserts that the written judgment does not comport with the
oral pronouncement of conviction because the written judgment specifies that he was convicted of
a first-degree felony, and he asks this Court to remand the case and instruct the trial court to issue
a new written judgment comporting with the verdict of the jury. The State concedes error but
suggests instead that this Court modify the trial court’s judgment rather than remand the issue.
Although it is not binding, appellate courts give due consideration to the State’s
concession of error. See Van Flowers v. State, 629 S.W.3d 707, 710 (Tex. App.—Houston [1st
Dist.] 2021, no pet.). Regardless of whether a trial was by a jury or a bench trial, the trial court
imposes the sentence. See Tex. Code Crim. Proc. arts. 37.01 (explaining that verdict is written
declaration by jury of its decision), 42.01, § 1 (stating that judgment is written declaration by trial
court showing conviction or acquittal of defendant and that sentence will be based on information
in judgment), .02 (noting that sentence is part of judgment ordering punishment to be carried into
execution). Additionally, with certain statutory exceptions not applicable here, courts must orally
pronounce the sentence in the defendant’s presence. See id. arts. 42.03, § 1(a), .14; Taylor v. State,
131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim.
App. 2002). The judgment, including the sentence assessed, is merely a written manifestation of
that oral pronouncement. See Tex. Code Crim. Proc. art. 42.01, § 1; Taylor, 131 S.W.3d at 500;
Madding, 70 S.W.3d at 135; Aguilar v. State, 202 S.W.3d 840, 842 (Tex. App.—Waco 2006,
pet. ref’d). “[I]t is the pronouncement of sentence that is the appealable event, and the written
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sentence or order simply memorializes it and should comport therewith.” Coffey v. State,
979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Accordingly, “[w]hen there is a conflict between
the oral pronouncement of the sentence and the sentence in the written judgment, the oral
pronouncement controls.” Taylor, 131 S.W.3d at 500.
Appellate courts have the authority to modify a trial court’s judgment and affirm it
as modified. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.
1993) (explaining that appellate courts have authority to modify judgments). More specifically,
“[a]ppellate courts have the power to reform whatever the trial court could have corrected by a
judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the
record.” Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). A trial court
may enter a judgment nunc pro tunc to correct a discrepancy between the written judgment and
the judgment as pronounced in court. Blanton v. State, 369 S.W.3d 894, 897-98 (Tex. Crim. App.
2012); see also Tex. R. App. P. 23.1 (governing nunc pro tunc proceedings in criminal cases). A
judgment nunc pro tunc may only be used by the trial court to correct clerical errors and not errors
that are a result of judicial reasoning. Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App.
2007). But see Van Flowers, 629 S.W.3d at 712 (explaining that appellate court’s “authority to
modify a trial court’s judgment is not restricted to the correction of clerical errors”). “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.” Hall v. State, 373 S.W.3d 168, 172 (Tex. App.—Fort Worth
2012, pet. ref’d); see also In re Cherry, 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”). Modification is proper when the record supplies “the information necessary to
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show both that a modification is warranted and the particular modification that is warranted.”
Van Flowers, 629 S.W.3d at 712.
In this case, the jury found that Dygert-Tarr committed the offense while under the
influence of sudden passion, which reduced the offense level to a second-degree felony, see Tex.
Penal Code § 19.02(d), and the jury sentenced him to twenty years’ imprisonment, see id. § 12.33.
Although the trial court’s oral pronouncement conformed with the jury’s verdicts, the written
judgment of conviction incorrectly stated that he was convicted of a first-degree felony. Given
this discrepancy and based on the record, we sustain his issue and modify the “degree of offense”
portion of the written judgment to reflect that he was convicted of a “SECOND DEGREE
FELONY.” See Johnson v. State, Nos. 05-18-00057—00058-CR, 2019 WL 2266545, at *3 (Tex.
App.—Dallas May 28, 2019, no pet.) (mem. op., not designated for publication) (reforming written
judgment to reflect that defendant was convicted of second-degree felony due to jury’s sudden-
passion finding).
CONCLUSION
Having sustained Dybert-Tarr’s issue, we modify the trial court’s written judgment
as set out above and affirm the judgment of conviction as modified.
__________________________________________
Thomas J. Baker, Justice
Before Chief Justice Byrne, Justices Baker and Theofanis
Modified and, as Modified, Affirmed
Filed: November 14, 2024
Do Not Publish
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