Christopher Dante Loud v. The State of Texas--Appeal from 66th District Court of Hill County
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Judgment Nunc Pro Tunc Vacated, Original Judgment Affirmed, and Majority and
Dissenting Opinions filed December 7, 2010.
In The
Fourteenth Court of Appeals
NO. 14-09-00332-CR
CHRISTOPHER DANTE LOUD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 66th District Court
Hill County, Texas
Trial Court Cause No. 34,448
MAJORITY OPINION
Appellant, Christopher Dante Loud, appeals from the trial court’s judgment nunc
pro tunc convicting him of aggravated assault with a deadly weapon and affirmatively
finding a deadly weapon was used during the offense. Because we conclude that the trial
court corrected judicial errors and omissions by making the changes at issue, we vacate
the judgment nunc pro tunc, and reinstate and affirm the original judgment and sentence.1
1
Appellant has not challenged the original judgment and sentence.
I. Background
In 2006, appellant was indicted for the offense of aggravated assault with a deadly
weapon. However, the caption on the indictment reflects that the charged offense was
―aggravated assault – bodily injury.‖ Under the terms of a plea agreement, he pleaded no
contest, and was placed on deferred-adjudication community supervision. At the plea
hearing, held on July 3, 2006, the trial court orally admonished appellant that he was
pleading guilty to the offense of aggravated assault – serious bodily injury. Appellant
waived the reading of the indictment. The trial court affirmed that appellant stipulated to
the allegations contained in the charging instrument. Additionally, appellant’s written
stipulation of evidence provides: ―At the trial of this cause the State could and would
produce witnesses who would testify and establish, beyond a reasonable doubt, the truth
of all of the material allegations in the indictment . . . .‖ The written admonishments
signed by appellant and the trial court list the offense as ―Aggravated Assault w/Serious
Bodily Injury.‖ Both the admonishments and the stipulation of evidence were signed at
the plea hearing. The order of deferred adjudication indicates appellant was charged with
aggravated assault – bodily injury, with the statute for the offense listed as Texas Penal
Code Section 22.02(a)(1).2 The order imposing conditions of community supervision
similarly lists the offense for which appellant was placed on community supervision as
―aggravated assault – bodily injury.‖
In December 2006, the State filed an application to proceed to adjudication, listing
the offense to which appellant entered a plea as ―aggravated assault – bodily injury.‖
Appellant entered into another plea agreement with the State and continued on
community supervision for a longer term, with some additional restrictions and increased
fees. In its order on the State’s application, the trial court stated:
HERETOFORE, on the 3rd day of July 2006, as reflected by a prior order
of this Court, this case was tried and Christopher Dante Loud, hereinafter
2
This statute provides that a person commits aggravated assault if he commits assault and causes
serious bodily injury to another. Tex. Penal Code Ann. § 22.02(a)(1) (Vernon Supp. 2009).
2
called defendant, entered a plea of Nolo Contendere to the offense of
Aggravated Assault-Bodily Injury. The Court after hearing the evidence
introduced thereunder accepted the plea of Nolo Contendere, deferred
further proceeding without entering an adjudication of guilt and placed the
defendant on probation for a term of six (6) years and cost of Court.
Thereafter, the State filed a motion in which it alleged that the defendant
has violated the terms of probation, moving the Court to proceed to an
adjudication of guilt, the assessment of punishment and all other actions
necessary in this cause, a copy of which motion was served upon the
defendant, and on the 16th day of January 2007, came on to be heard the
Motion heretofore filed by the State, and the defendant appeared in person
with counsel and the State appeared through her Assistant District Attorney
and after proper admonishment the defendant entered a plea of true to
violation 3, 8 and 10 of the allegations contained in the Motion filed by the
State alleging a violation of the terms of probation.
(emphasis added).
The State filed another application to proceed to adjudication in November 2008.
In this application, the State alleged:
Christopher Dante Loud, the defendant in this cause, entered a plea of Nolo
Contendere to the offense of Aggravated Assault-Bodily Injury, a felony, on
the 3rd day of July 2006. The Court after hearing the evidence introduced
thereunder and accepting the plea of Nolo Contendere, deferred further
proceedings without entering an adjudication of guilt and placed the
defendant on probation on reasonable terms and conditions for a period of
six (6) years, and the said defendant was then and there probated to said
Hill County Community Supervision and Corrections Department as
aforesaid.
(emphasis added).
At the beginning of the hearing on the State’s application, held on February 11,
2009, the trial court confirmed that appellant was ―the same person that entered a plea of
no contest to a charge of aggravated bodily assault - - or aggravated assault bodily injury
back on July the 3rd, 2006.‖ The trial court found the State’s allegations that appellant
violated the terms of his community supervision true and found appellant guilty of the
―offense alleged in the indictment.‖ After a punishment hearing, the trial court sentenced
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appellant to 15 years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice and a $10,000 fine. The judgment adjudicating appellant guilty listed
the offense as Texas Penal Code Section 22.02(a)(1), and the trial court entered ―N/A‖
under the deadly-weapon finding.
Later that month on February 20,3 the State filed a motion to enter a judgment
nunc pro tunc adjudicating appellant’s guilt. The State alleged:
l.
In a February 9, 2009 hearing on the State’s Application to Proceed
to Final Adjudication, the Court found the allegations in the
Application to be true, found the Defendant guilty of the offense as
charged in the Indictment, and after a punishment hearing, sentenced
the Defendant to 15 years in prison, and a fine of $10,000.
2.
The Judgment signed by the Court on February 13, 2009 contains
clerical errors, including:
a.
The ―Statute for Offense‖ is erroneously entered as §22.02(a)
(1). Defendant was indicted for and found guilty of
Aggravated Assault under Tex. Penal Code §22.02(a) (2),[4]
so the entry should be corrected.
b.
The code for the ―Offense for which Defendant Convicted‖ is
incorrectly entered as 13150004. It should be the code for
Aggravated Assault - Deadly Weapon - 13150005.
c.
The ―Findings on Deadly Weapon‖ is erroneously shown as
N/A. The Defendant was indicted for aggravated assault by
using or exhibiting a deadly weapon during the commission
of the offense. He was found guilty as charged in the
Indictment. The deadly weapon is an element of the offense,
so the record should be corrected to show the Court’s finding.
Appellant filed ―Defendant’s Motion in Arrest of Judgment and Motion for New
Trial‖ on February 27, 2009. Appellant requested a new trial, contending the judgment
―is contrary to law and the evidence,‖ and ―revocation of deferred adjudication
3
Appellant timely filed his notice of appeal on February 27, 2009.
4
This statute provides that a person commits aggravated assault if he commits assault and uses or
exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a)(2).
4
community supervision is an abuse of discretion.‖ There is no indication in the record
that the trial court considered or acted upon appellant’s motion. Moreover, the State did
not pursue correction of judicial, rather than, clerical, errors.
The trial court conducted a hearing on the State’s motion for entry of judgment
nunc pro tunc on March 9, 2009. The reporter’s record does not reflect any indication
that the trial judge independently recalled that he made a deadly-weapon finding during
the hearing on final adjudication of appellant’s guilt. At the conclusion of the hearing,
the trial court requested additional briefing from the State and appellant regarding
whether a judgment nunc pro tunc was available to correct these errors. After the parties
submitted briefing, the trial court changed the order of deferred adjudication to reflect the
offense as ―Aggravated Assault w/Deadly Weapon,‖ the offense statute as ―22.02(a)(2)
Penal Code,‖ and the findings on deadly weapon as ―Yes, Not a Firearm.‖ The trial court
further changed the caption of the indictment, the order imposing conditions of
community supervision, and the criminal docket sheet to reflect the offense of
―Aggravated Assault w/Deadly Weapon.‖ Finally, the trial court entered a Nunc Pro
Tunc Judgment Adjudicating Guilt reflecting these same changes and including a finding
of ―Yes, Not a Firearm‖ on the deadly weapon section of the judgment.
II. Analysis
In a single issue, appellant contends the trial court erred in adjudicating him guilty
of aggravated assault – deadly weapon and entering an affirmative finding of a deadly
weapon through a judgment nunc pro tunc.
In his brief, appellant contends: ―on the one hand the original [g]uilty plea is
involuntary or on the other hand the judgment should be modified to remove the deadlyweapon finding and adjudicate the Appellant Guilty of either Aggravated Assault-Bodily
Injury under Texas Penal Code Section 22.02(a)(1) or Aggravated Assault Serious Bodily
Injury.‖ However, we will not consider appellant’s argument that his guilty plea was
involuntary because appellant did not voice this complaint in the trial court. See Wright
5
v. State, 295 S.W.3d 685, 691–92 (Tex. App.—Eastland 2009), aff’d 312 S.W.3d 34
(Tex. Crim. App. 2010); Salinas v. State, 282 S.W.3d 923, 924 (Tex. App.—Fort Worth
2009, pet. ref’d). We confine our analysis and disposition to whether the trial court
properly changed the judgment to reflect a deadly-weapon finding and a conviction under
Texas Penal Code section 22.02(a)(2) (hereinafter ―Aggravated Assault with a Deadly
Weapon‖).
A judgment nunc pro tunc is appropriate to correct clerical errors when the court’s
records do not mirror the judgment actually rendered. Collins v. State, 240 S.W.3d 925,
928 (Tex. Crim. App. 2007). However, such an order is not appropriate to correct
judicial errors or omissions. Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988)
(en banc). ―The trial court cannot, through a judgment nunc pro tunc, change a court’s
records to reflect what it believes should have been done.‖ Collins, 240 S.W.3d at 928
(citing Ex parte Dopps, 723 S.W.2d 669, 671 (Tex. Crim. App. 1986) (en banc) (per
curiam)). The dispositive issue in this case is thus whether the changes made by the trial
court resulted from judicial reasoning or were simply corrections of clerical errors. Such
a determination is a matter of law. See Poe, 751 S.W.2d at 876.
As discussed above, appellant pleaded no contest to the allegations in the
indictment. The indictment, in turn, alleged aggravated assault with a deadly weapon.
See Tex. Penal Code Ann. § 22.02(a)(2). However, appellant waived the reading of the
indictment, and the trial court, both orally and in writing, admonished appellant that the
offense with which he was charged was aggravated assault – serious bodily injury. See
id. § 22.02(a)(1). There is no mention in any of the documents contained in the clerk’s
record—except the body of the indictment—or any discussion in any of the reporter’s
records of a deadly weapon until the State filed its motion for judgment nunc pro tunc.
Indeed, the record makes clear that everyone, including the State and the trial court, was
operating under the assumption appellant had pleaded no contest to aggravated assault –
serious bodily injury. At the beginning of three separate hearings over the course of three
years, the trial court verified appellant had pleaded no contest to aggravated assault –
6
bodily injury. In fact, the trial court requested briefing at the conclusion of the hearing on
the State’s motion for a judgment nunc pro tunc; such a request certainly suggests the use
of judicial reasoning in determining whether to correct the numerous errors apparent in
this record. Cf. Collins, 240 S.W.3d at 928 (noting a nunc pro tunc order may only be
used to correct a clerical error that was not the result of judicial reasoning).
The cases cited by the State to support its proposition that a judgment nunc pro
tunc is appropriate to correct clerical errors made in a deadly-weapon finding are
factually distinguishable from this case. First, in Curry v. State, the jury found the
defendant had used or exhibited a deadly weapon; thus the trial court was required to
enter the finding on the judgment. 720 S.W.2d 261, 263 (Tex. App.—Austin 1986, pet.
ref’d). Here, we have no such jury finding. Next, in Rabsatt v. State, No. 03-06-00668CR, 2007 WL 3390877, at *2 (Tex. App.—Austin Nov. 15, 2007, pet. struck) (mem. op.,
not designated for publication), the trial court orally pronounced an affirmative deadlyweapon finding. Again, the trial court made no such oral pronouncement in this case.
Finally, in Ex parte Huskins, the trial court properly admonished the defendant prior to
accepting his guilty plea to the allegations in the indictment. 176 S.W.3d 818, 820 (Tex.
Crim. App. 2005). Thus, the Court of Criminal Appeals concluded that the trial court
was not required to orally announce a deadly-weapon finding at sentencing to include
such a finding in the judgment and sentence. Id. at 820–21. But here, the trial court did
not properly admonish the defendant regarding a deadly weapon; as explained above, the
trial court instead admonished the defendant that he was pleading no contest to and being
placed on deferred adjudication for aggravated assault – serious bodily injury.
Further, when the trial court is the trier-of-fact, it has discretion to withhold entry
of a deadly-weapon finding from its judgment, even when such a finding is supported by
the evidence. See Guerrero v. State, 299 S.W.3d 487, 490 (Tex. App.—Amarillo 2009,
no pet.); Johnson v. State, 233 S.W.3d 420, 425 (Tex. App.—Fort Worth 2007, pet.
denied); Dickson v. State, 988 S.W.2d 261, 263 (Tex. App.—Texarkana 1998, pet. ref’d);
Campos v. State, 927 S.W.2d 232, 235 (Tex. App.—Waco 1996, no pet.).
7
Notwithstanding the trial court’s decision to grant the State’s motion to enter a judgment
nunc pro tunc, we must glean its original intent by reviewing the entire record. On
multiple occasions, the State and the trial court (orally and in writing) denominated the
charge as ―aggravated assault-bodily injury.‖ During the hearing on final adjudication of
guilt, the trial court asked appellant if he was the same person charged with ―aggravated
assault-bodily injury.‖ Moreover, any doubt regarding the trial court’s original intent is
removed by its express finding of ―N/A‖ on the original judgment. The deadly weapon
finding was within the trial court’s discretion and required judicial reasoning; accordingly
the ―N/A‖ entry was not merely a clerical error. Johnson, 233 S.W.3d at 428. Based on
this record, we cannot conclude that the trial court’s inscription of ―N/A‖ in the judgment
under the topic ―Findings on a Deadly Weapon‖ was simply a clerical error, particularly
when coupled with a record that indicates the judge was operating under the assumption
that appellant had pleaded no contest to aggravated assault – serious bodily injury.
Again, we find no basis in this record for the State’s contention that in contemplating the
merits of the State’s motion for entry of judgment nunc pro tunc, the trial judge
independently recalled his intent to enter a deadly-weapon finding when he adjudicated
appellant’s guilt.
We acknowledge that on the day the trial court signed the judgment nunc pro tunc
it retained plenary power over the case. We are also cognizant of authority supporting
the contention that a trial court, in exercise of its plenary power, may vacate, modify or
amend certain of its own rulings. See Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex.
Crim. App. 1998) (determining trial court had authority to rescind order granting new
trial). There is ample authority supporting the contention that the trial court may modify
or amend the defendant’s sentence while it has plenary power over a case. See State v.
Aguilera, 165 S.W.3d 695, 697–98 (Tex. Crim. App. 2005) (explaining trial courts have
plenary power to modify a sentence); Junious v. State, 120 S.W.3d 413, 417 (Tex.
App.—Houston [14th Dist.] 2003 pet. ref’d) (holding, notwithstanding erroneous grant of
partial new trial pertaining to punishment, trial court properly exercised plenary power to
8
alter sentence); Ware v. State, 62 S.W.3d 344, 353–55 (Tex. App.—Fort Worth 2001, pet.
ref’d) (holding trial court had inherent power to correct judgment).
However, enhancement findings are made and entered during final adjudication of
guilt, and we have not identified any authority supporting the contention that the trial
court may alter or amend enhancement findings without granting a motion for new trial.
Here, the State merely requested that the trial court correct a clerical error. Accordingly,
under the unique circumstances presented in this case, we conclude the trial court acted to
correct judicial errors and omissions; in fact, it appears as though the trial court changed
its record to reflect what it believed should have been done, not to what actually
occurred. See Collins, 240 S.W.3d at 928 (―The trial court cannot, through a judgment
nunc pro tunc, change a court’s records to reflect what it believes should have been
done.‖). The trial court was not authorized to enter the judgment nunc pro tunc. See
Dopps, 723 S.W.2d at 671. We sustain appellant’s sole issue.
Having sustained appellant’s issue, we order the judgment nunc pro tunc vacated
and set aside. We further order the original judgment and sentence reinstated. We affirm
the original judgment of the trial court.
/s/
Charles W. Seymore
Justice
Panel consists of Justices Anderson, Frost, and Seymore.(Frost, J., dissenting.)
Publish — Tex. R. App. P. 47.3(b).
9
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