JONATHAN MICHAEL EARNHART, Appellant v. THE STATE OF TEXAS, Appellee

VACATE and DISMISS; Opinion issued October 14, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00701-CR
No. 05-09-00702-CR
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JONATHAN MICHAEL EARNHART, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause Nos. 2002-1-625 CR & 2002-1-1527 CR
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MEMORANDUM OPINION
Before Bridges, Francis, and Lang
Opinion By Justice Francis
        Five years after Jonathan Michael Earnhart was sentenced to ninety days in jail on two charges of reckless driving, the trial court signed nunc pro tunc judgments assessing punishment at thirty days in jail. In a single issue on appeal, Earnhart asserts the trial court erred in entering the nunc pro tunc judgments and failing to vacate the original judgments as void and unenforceable. For reasons set out below, we vacate the judgments and sentences nunc pro tunc and dismiss the appeals.
        In 2002, Earnhart was charged with two reckless driving offenses. The maximum punishment authorized for reckless driving is a fine not to exceed $200, confinement in the county jail for not more than thirty days, or both. Tex. Transp. Code Ann. § 545.401(b) (West 1999). Our records do not contain a reporter's record from the proceedings on these charges. The docket sheets reflect Earnhart pleaded guilty to both charges on February 17, 2004, and six days later, appeared in court and was sentenced by the trial judge to ninety days in jail on each case with the sentences to run concurrently. Although the parties assert the plea and sentence were the result of a negotiated plea agreement, the record is not clear. In each case, the record contains plea papers - signed by Earnhart, his counsel, the prosecutor, and trial judge - reflecting a plea agreement of ninety days in county jail; however, the trial court certified in writing there was no plea agreement and Earnhart had the right to appeal. The written judgments failed to include the sentences imposed. No direct appeal was taken from either judgment.
        In February 2009, Earnhart filed a pro se petition for writ of coram nobis, asserting the sentences imposed exceeded the maximum allowed by law and were illegal and requested the trial court to resentence him “below the statutory maximum” or to vacate the sentences. Earnhart, who is incarcerated in federal prison, explained that his federal sentence had been increased because of the ninety-day sentences and that if the “sentences are expunged or taken below the statutory maximum,” he could “be relieved” of eleven months of his federal sentence. Finally, he asked for counsel to be appointed to represent him.
        The trial court appointed an attorney to represent Earnhart. Instead of seeking habeas corpus relief, counsel filed a motion to set aside the judgments or, in the alternative, a motion for judgments nunc pro tunc reflecting sentences of “not more than (30) days confinement” in the county jail. After a hearing on the motions, the trial court denied the motion to set aside the judgments and granted the motion for judgments nunc pro tunc. The nunc pro tunc judgments, signed by the judge, reflect sentences of thirty days.         On appeal, Earnhart contends the trial court erred in denying the petitions for writ of coram nobis and motions to set aside the judgments as void and unenforceable. He asserts the trial court should have vacated the original judgments rather than entering nunc pro tunc judgments within the statutory punishment range. The State concedes the original sentences were illegal but asserts the trial court (1) had no jurisdiction to consider the motion to set aside the judgments and (2) had no authority to correct the illegal sentences by nunc pro tunc. We agree with the State.
        With respect to Earnhart's complaint regarding the petitions for writ of coram nobis, the record does not show the trial court ever considered, much less ruled on, the petitions. Moreover, in the body of his brief, Earnhart has not provided any briefing regarding the writ of coram nobis. Under these circumstances, we conclude Earnhart has neither preserved nor adequately briefed this issue. See Tex. R. App. P. 33.1; 38.1(h).
        As for his motions to set aside the judgments, a trial court's plenary jurisdiction to modify or set aside its judgment expires thirty days after sentencing unless a defendant files a motion for new trial or a motion in arrest of judgment. See Tex. R. App. P. 21.4 & 22.3; see also Collins v. State, 240 S.W.3d 925, 927 n.2 (Tex. Crim. App. 2007). Here, Earnhart's motions to set aside the judgment were filed more than five years after he was sentenced; consequently, the trial court had no plenary authority to consider the motions.
        After the expiration of the trial court's plenary jurisdiction, the trial court retains authority to enter a judgment nunc pro tunc to correct clerical errors in the judgment. Smith v. State, 15 S.W.3d 294, 299 (Tex. App.-Dallas 2000, no pet.). 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. Collins, 240 S.W.3d at 928. A trial court can correct clerical errors in the record by nunc pro tunc. Only errors not the result of judicial reasoning are considered clerical errors. Id. The trial court cannot, through a judgment nunc pro tunc, change a court's record to reflect what it believes should have been done. Id. Thus, before a judgment nunc pro tunc may be entered, there must be proof that the proposed judgment was actually rendered or pronounced at the earlier time. Id. (quoting Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim. App. 1984)).
        Here, the record is clear that the nunc pro tunc judgments were not correcting clerical errors. Rather, the trial court attempted to correct the illegal ninety-day sentences by reducing them to terms within the statutory limit. Nunc pro tunc was not an appropriate remedy to achieve the result requested by Earnhart. See Ex parte Rich, 194 S.W.3d 508, 512 (Tex. Crim. App. 2006) (explaining that trial court's assessment of illegal sentence based on incorrect information provided to it is not clerical error that can be corrected by nunc pro tunc but is result of judicial reasoning or determination). Consequently, we vacate the trial court's nunc pro tunc judgments, which leave in place the earlier judgments.
        A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and is therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). A claim of illegal sentence is cognizable on a writ of habeas corpus. Ex parte Rich, 194 S.W.3d at 511. We recognize there are certain circumstances in which we could consider the proceeding below as a habeas proceeding and then consider Earnhart's complaint. See generally Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977). But this is not such a circumstance.
        Earnhart has not requested we construe the proceeding below as a habeas proceeding, and even if he had, we would decline to do so given the briefs and the record before us. In particular, the record is not clear as to whether Earnhart entered an open plea or negotiated plea of guilty. Because of this ambiguity, it is unclear what remedy, if any, Earnhart would be entitled to if relief were granted. See Ex parte Rich, 194 S.W.3d at 514-15 (explaining remedies on claim of illegal sentence when defendant sentenced pursuant to negotiated plea bargain agreement and when defendant pleads guilty without benefit of plea bargain).
        We vacate the judgments and sentences nunc pro tunc and dismiss the appeals.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090701F.U05