Dana Alisha Wheatley v. the State of Texas

NUMBER 13-21-00408-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DANA ALISHA WHEATLEY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of Aransas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Justice Benavides
Appellant Dana Alisha Wheatley appeals from a judgment revoking her community
supervision, adjudicating her guilty of possession of methamphetamine in an amount of
less than one gram, a state jail felony, and sentencing her to two years’ confinement. See
TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). By a single issue, appellant argues the
judgment entered is “void” because it imposes a fine on appellant and requires her to pay
restitution, both of which are contrary to the judgment rendered in open court.
During the pendency of this appeal, the trial court entered a judgment nunc pro
tunc correcting the complained-of discrepancies. The State contends that the appeal is
now moot. We agree and dismiss the appeal for want of jurisdiction.
I. BACKGROUND
In announcing appellant’s sentence at the conclusion of the revocation hearing,
the trial court said, “There will be no fine[,] nor restitution[,] nor court cost[s] as a[]part of
this judgment.” Later that day, the trial court signed a written judgment that included a
$500 fine and restitution in the amount of $180. Approximately three months later, during
the pendency of this appeal, the trial court signed a “Nunc Pro Tunc Judgment
Adjudicating Guilt” in which the fine and restitution were reduced to “$0.00.”
II. APPLICABLE LAW
Rendition is the act by which the court declares its decision upon the matters at
issue. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970); Wood v. Griffin &
Brand, 671 S.W.2d 125, 128 (Tex. App.—Corpus Christi–Edinburg 1984, no writ). A
judgment is rendered when the decision is officially announced either orally in open court
or by written memorandum filed with the clerk. Samples Exterminators v. Samples, 640
S.W.2d 873, 875 (Tex. 1982); Bakali v. Bakali, 830 S.W.2d 251, 254 (Tex. App.—Dallas
1992, no writ). Entry of a written judgment is a ministerial act reflecting the court’s action.
Bakali, 830 S.W.2d at 254; Wood, 671 S.W.2d at 128. “When there is a conflict between
the oral pronouncement of sentence and the sentence in the written judgment, the oral
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pronouncement controls.” Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).
“The purpose of a nunc pro tunc order is to correctly reflect from the records of the
court a judgment actually made by it, but which for some reason was not entered of record
at the proper time.” Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988) (citing Ex
parte Dopps, 723 S.W.2d 669, 670 (Tex. Crim. App. 1986) (per curiam)). “[A] valid
judgment nunc pro tunc can be entered at any time, even after the trial court has lost
jurisdiction over the case.” In re Cherry, 258 S.W.3d 328, 333 (Tex. App.—Austin 2008,
no pet.) (citing State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994)).
III. ANALYSIS
Here, the record clearly shows that the written judgment did not accurately reflect
the oral judgment rendered by the trial court. Thus, we conclude the trial court had
authority to correct those clerical errors with its judgment nunc pro tunc. See Collins v.
State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007) (“A judgment nunc pro tunc is the
appropriate avenue to make a correction when the court’s records do not mirror the
judgment that was actually rendered.” (citing Alvarez v. State, 605 S.W.2d 615, 617 (Tex.
Crim. App. 1980))); Ex parte Poe, 751 S.W.2d at 876; In re Cherry, 258 S.W.3d at 333.
We reject appellant’s contention that the judgment is “void” merely because the
initial written judgment contained clerical errors. “The general rule is that, where the trial
court has jurisdiction of the subject-matter, and of the person affected, its judgment will
not be void, though it may be erroneous.” Ex parte Spaulding, 687 S.W.2d 741, 745 (Tex.
Crim. App. 1985) (Teague, J., dissenting in part, concurring in part). Appellant does not
suggest that the trial court did not have authority over her or the subject matter of the
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proceedings. Moreover, “[t]he written judgment is not itself the conviction but evidence,
among other things, that a conviction has occurred.” Jones v. State, 795 S.W.2d 199, 202
(Tex. Crim. App. 1990). Thus, recording errors aside, the judgment rendered by the trial
court was valid.
Finally, because the trial court has corrected the complained-of errors in the written
judgment, there is no longer a justiciable controversy for this Court to consider. See Ex
parte Bohannan, 350 S.W.3d 116, 120 (Tex. Crim. App. 2011) (recognizing that mootness
generally turns on whether the claim is justiciable); Duncan v. Evans, 653 S.W.2d 38, 41
(Tex. Crim. App. 1990) (Onion, P.J., dissenting) (noting that when the order that is subject
of the appeal “has been vacated . . . the question presented is moot [because] [t]here is
not presently a justiciable controversy”). Accordingly, we dismiss the appeal for want of
jurisdiction. See State v. Curl, 28 S.W.3d 838, 841 (Tex. App.—Corpus Christi–Edinburg
2000, no pet.) (en banc) (“The courts of appeals are without jurisdiction to entertain an
appeal wherein all the issues sought to be resolved by the court are moot.”).
IV. CONCLUSION
We dismiss the appeal for want of jurisdiction.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
24th day of March, 2022.
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