Paul Anthony Barksdale, Jr. v. the State of Texas

NO. 12-22-00049-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
PAUL ANTHONY BARKSDALE, JR., § APPEAL FROM THE 87TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Paul Anthony Barksdale, Jr. appeals his convictions for possession of a controlled
substance for penalty group one in an amount equal to or greater than four grams but less than
two-hundred grams and possession of a prohibited substance or item in a correctional facility.
We dismiss the appeal as moot.
BACKGROUND
Appellant was indicted for possession of a controlled substance for penalty group one in
an amount equal to or greater than four grams but less than two-hundred grams and possession of
a prohibited substance or item in a correctional facility. 1 Appellant pleaded “not guilty” to the
charges, the matter proceeded to a jury trial, and the jury found Appellant guilty on both counts.
Appellant elected that the trial court assess his punishment. After a hearing, the trial court
sentenced Appellant to ten years of imprisonment for count one, and five years of imprisonment
for count two. The trial court’s judgment incorrectly reflects that the jury assessed punishment
when it was the court that assessed his punishment. Appellant filed a motion for new trial, which
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West Supp. 2022); TEX. PENAL CODE ANN.
§ 38.11 (West Supp.2022).
the trial court subsequently denied. This appeal followed in which Appellant seeks to modify the
judgment to correctly reflect that the trial court assessed his punishment.
The State subsequently filed a motion in the trial court for a judgment nunc pro tunc
correcting the error. The trial court granted the motion and issued a judgment nunc pro tunc, and
the appellate record was supplemented to include the judgment.
JUDGMENT ERROR
After the trial court’s plenary jurisdiction expires, it does not retain general jurisdiction
over a case. See Williams v. State, 603 S.W.3d 439, 443 (Tex. Crim. App. 2020). However, the
trial court retains limited jurisdiction to issue a judgment nunc pro tunc correcting a clerical error
in its judgment. See In re Hancock, 212 S.W.3d 922, 927 (Tex. App.—Fort Worth 2007, no
pet.) (orig. proceeding).
A trial court may enter a nunc pro tunc judgment to correct a clerical error when the
original judgment does not reflect the judgment the court actually rendered. Blanton v. State,
369 S.W.3d 894, 897–98 (Tex. Crim. App. 2012). A nunc pro tunc judgment is not the
appropriate means to correct judicial error or to change the record to reflect what the court
believes should have been done. Id. at 898; Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim.
App. 2007). This means that a trial court can correct only errors that were not the result of
judicial reasoning. Collins, 240 S.W.3d at 928.
In the case at bar, the judgment indicates under the heading “Punishment Assessed by”
that the “JURY” assessed Appellant’s punishment. The record clearly reflects that the trial court,
and not the jury, assessed Appellant’s punishment. This error is clerical in nature because it does
not change the substance of the judgment or require judicial reasoning to correct.
The State concedes that Appellant is entitled to a judgment that corresponds to accurately
reflect the proceedings below. But the State argues that Appellant’s complaint has become moot
because the trial court signed a judgment nunc pro tunc correcting this clerical error. See
Blanton, 369 S.W.3d at 897–98. A supplemental clerk’s record shows that the trial court signed
a judgment nunc pro tunc correcting the error about which Appellant complains and effecting the
relief that Appellant seeks on appeal.
An appeal becomes moot when an appellate court’s judgment can no longer have an
effect on an existing controversy or cannot affect the parties’ rights. Jack v. State, 149 S.W.3d
2
119, 123 n.10 (Tex. Crim. App. 2004); Hung Dasian Truong v. State, 580 S.W.3d 203, 207
(Tex. App.—Houston [1st Dist.] 2019, no pet.). Appellate courts normally cannot act on moot
cases. Pharris v. State, 165 S.W.3d 681, 687–88 (Tex. Crim. App. 2005); Hung Dasian
Truong, 580 S.W.3d at 207. The mootness doctrine limits courts to deciding cases with actual
controversies between parties. Hung Dasian Truong, 580 S.W.3d at 207; Ex parte Flores, 130
S.W.3d 100, 104–05 (Tex. App.—El Paso 2003, pet. ref’d). “When there has ceased to be a
controversy between the litigating parties which is due to events occurring after judgment has
been rendered by the trial court, the decision of an appellate court would be a mere academic
exercise and the court may not decide the appeal.” Flores, 130 S.W.3d at 105.
Because the trial court’s judgment nunc pro tunc corrected the error about which
Appellant’s brief complains, we dismiss his appeal as moot. See TEX. R. APP. P. 43.2(f); Hung
Dasian Truong, 580 S.W.3d at 211; see also Tannehill v. State, No. 02-20-00100-CR, 2021 WL
2252791, at *1–2 (Tex. App.—Fort Worth June 3, 2021, no pet.) (mem. op., not designated for
publication) (applying same principles to similar facts and dismissing appeal as moot).
JAMES T. WORTHEN
Chief Justice
Opinion delivered January 25, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 25, 2023
NO. 12-22-00049-CR
PAUL ANTHONY BARKSDALE, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 87th District Court
of Anderson County, Texas (Tr.Ct.No. 87CR-20-34714)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this Court that this appeal should be
dismissed as moot.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be dismissed as moot in accordance with the opinion of this Court; and that this
decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.