Ortiz, Emir ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,096-01
EX PARTE EMIR ORTIZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 20170D02908-34-1 IN THE 346TH DISTRICT COURT
FROM EL PASO COUNTY
Per curiam.
OPINION
Applicant pleaded guilty to aggravated kidnapping (count I), aggravated assault with a deadly
weapon (count II), family-violence assault by impeding breathing or circulation (count III), and
continuous family violence (count IV). Applicant originally received deferred adjudication and was
placed on community supervision. Applicant’s guilt was adjudicated, and he was sentenced to thirty
years’ imprisonment on each of the four counts, to run concurrently. Applicant did not appeal his
convictions.
This Court remanded this writ application to El Paso County on October 20, 2021, for
findings of fact and conclusions of law addressing, among other things, Applicant’s claims that his
sentences in counts II, III, and IV were illegal and that counsel was ineffective for failing to
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challenge these illegal sentences. According to the trial court’s findings, it has purported to vacate
Applicant’s illegal sentences for counts II, III, and IV and re-sentenced him on those counts within
their appropriate punishment ranges. The writ record now reflects that the trial court has entered
judgments nunc pro tunc for those counts. The trial court’s findings concluded that re-sentencing
moots Applicant’s first two grounds, i.e., the claims we remanded.
The trial court does not have the authority to vacate and re-sentence Applicant or to correct
Applicant’s illegal sentences via judgments nunc pro tunc. Judgments nunc pro tunc may be used
only to correct a clerical error, not a judicial error like the one that occurred here. See State v. Bates,
889 S.W.2d 306, 309 (Tex. Crim. App. 1994). Absent a timely-filed notice of appeal from a
judgment adjudicating guilt, a trial court’s authority over a criminal case extends up to thirty days
after the imposed sentence begins. TEX . CODE CRIM . PROC. art. 42A.110(a), 42A.755(e); TEX . R.
APP . PROC. 25.2(a)(2). Applicant was adjudicated guilty and sentenced on November 5, 2018. He
did not appeal following adjudication. The trial court did not have the authority to set aside these
sentences and re-sentence Applicant almost three years later. See Ex parte Alexander, 685 S.W.2d
57, 60 (Tex. Crim. App. 1985) (noting that, “[i]t is well established that only the Court of Criminal
Appeals possesses the authority to grant relief in a post-conviction habeas corpus proceeding where
there is a final felony conviction. The trial court is without such authority.”). Accordingly, any
orders and/or judgments nunc pro tunc purporting to vacate and re-sentence Applicant undertaken
by the trial court are void and of no effect. Id.Having conducted an independent review of the record, we conclude that Applicant is entitled
to a new punishment hearing. Ex parte Rich, 194 S.W.3d, 508, 511 (Tex. Crim. App. 2006).
Applicant’s sentences in counts II, III, and IV exceed the statutory punishment range for the
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respective offenses. Consequently, the sentences for counts II, III, and IV in Cause No.
20170D02908 in the 346th District Court of El Paso County are set aside, and Applicant is remanded
to the Sheriff of El Paso County for a new punishment hearing only on those counts. The trial court
shall issue any necessary bench warrant within ten days from the date of this Court’s mandate. All
other relief is denied.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and Pardons and Paroles Division.
Delivered: December 15, 2021
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