PD-1454-15 PD-1454-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/6/2015 1:12:59 PM Accepted 11/9/2015 4:16:29 PM ABEL ACOSTA CAUSE NUMBER __________________ CLERK
IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS
RAYMOND EARL BARNETT PETITIONER
v.
THE STATE OF TEXAS
PETITION FOR DISCRETIONARY REVIEW IN TRIAL COURT CAUSE NUMBER: 20922 FROM THE 336TH JUDICIAL DISTRICT COURT OF FANNIN COUNTY, TEXAS AND FROM THE THE COURT OF APPEALS FOR THE SIXTH COURT OF APPEALS IN TEXARAKANA, TEXAS CASE NUMBER: 06-14-00149-CR
STEVEN R. MIEARS State Bar of Texas No.: 14025600 211 North Main November 9, 2015 Bonham, Texas 75418 Tel: 903-640-4963 Fax: 903-640-4964 Email: SteveMiears@msn.com
ORAL ARGUMENT IS REQUESTED
1|Page Identity of Parties and Counsel
Under Rule 68.4(a), Rules of Appellate Procedure, the following is a
complete list of the names and addresses of all parties to the trial court’s final
judgment and their counsel in the trial court, and appellate counsel, so the members
of the court may at once determine whether they are disqualified to serve or
should recuse themselves from participating in the decision of the cases and so
the Clerk of the Court may properly notify the parties to the trial court’s final
judgment or their counsel of the judgment and all orders of the Court of Criminal
Appeals.
Trial Judge: THE HONORABLE JUDGE LAURINE BLAKE, 336TH JUDICIAL
DISTRICT COURT
Appellant .................................... RAYMOND EARL BARNETT
TDC, Polunsky Unit Inmate number 1332873 3872 FM 350 South, Livingston, Texas 77351
Steven R. Miears (Counsel on Appeal) SBOT# 14025600 211 North Main POB 736 Bonham, Texas 75418 903 640 4963 fax: 903 640 4964 SteveMiears@msn.com
2|Page Mr. Joe Moss (Counsel at Trial) SBOT # 14587400 518 N Main St Bonham, TX 75418-3718
THE STATE OF TEXAS Richard E. Glaser SBOT# 08000000 Criminal District Attorney 101 East Sam Rayburn Drive Bonham, Texas 75418
3|Page TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL...................................................2 TABLE OF CONTENTS .................................................................................... ...... 4
INDEX OF AUTHORITIES........................................................................................ 5
STATEMENT REGARDING ORAL ARGUMENT....................................................6
STATEMENT OF THE CASE .....................................................................................6
STATEMENT OF PROCEDURAL HISTORY...............................................................7
GROUNDS FOR REVIEW STATED:
1. The Court of Appeals errs in holding that Petitioner waived his right to appeal the trial court’s denial of his motion for a new trial on sentencing on the remaining charge of indecency with a child. p.8.
2. At what stage of the post-trial proceedings should claims of a prejudicial spillover effect onto an affirmed charge from charges reversed on appeal, and then dismissed by the State, be cognizable? p. 8; 13.
ARGUMENT
GROUND ONE....................................................................................................8
GROUND TWO.................................................................................................13
PRAYER FOR RELIEF.........................................................................................17 APPENDIX (Copies of Opinion from Court of Appeals) CERTIFICATE OF SERVICE...........................................................................................18
CERTIFICATE OF WORD COUNT...............................................................................19
4|Page INDEX OF AUTHORITIES
Rules
Tex. R. App. P. Rule 66.3 (b). p. 12
Tex. R. App. P. Rule 66.3(f). p. 12
Tex. Penal Code § 3.04 (West 2011). pp. 10, 12.
Cases
Barnett v. State, No. 06-05-00281-CR, 2007 Tex. App. LEXIS 2724 (Tex. App.— Texarkana 2007, pet. ref’d.). pp.6; 9.
Ex parte Marascio, 2015 Tex. Crim. App. LEXIS 1052 (Tex. Crim. App. Oct. 7, 2015). p.15.
Ex parte Mills, 795 S.W.2d 203, 203 (Tex. Crim. App. 1990). p.15
In Re: Raymond Earl Barnett, 06-14-00132-CR (2014). pp. 7;9.
Thrift v. State, 176 S.W.3d 221, 223 (Tex. Crim. App. 2005). pp. 13; 14.
United States v. Cross, 308 F.3d 308 (3d Cir. 2002). p.12.
United States v. Pelullo, 14 F.3d 881 (3d Cir. 1994). p.13.
5|Page STATEMENT REGARDING ORAL ARGUMENT
Oral argument is requested.
STATEMENT OF THE CASE Petitioner was convicted by a jury of two counts of sexual assault of a child,
and one case of indecency with a child. His range of potential punishment was
enhanced by two prior felonies, and the jury sentenced him to seventy-five years in
prison on each count. The trial court ordered the sentences to run concurrently. He
met with some success on direct appeal. The Court of Appeals reversed two of his
three convictions for factual insufficiency. Review for factual insufficiency was
viable in those days. After this court denied his PDR the Petitioner’s case was
remanded back to the trial court with the mandate he be given a new trial on the
sexual assault charges. See Barnett v. State, No. 06-05-00281-CR, 2007 Tex. App.
LEXIS 2724 (Tex. App.—Texarkana 2007, pet. ref’d.). For several years the trial
court ignored the mandate. During that interim this Court abandoned review for
factual sufficiency. Petitioner ultimately filed a writ of mandamus with the Court of
Appeals demanding that it order the trial court take action to retry him on the
sexual assault charges. Before the writ was considered by the Court of Appeals the
State pre-emptively moved for the trial court to dismiss the two sexual assault
cases. The trial court then dismissed those cases and entered a nunc pro tunc
6|Page judgment reflecting the single conviction for indecency with a child, and a seventy-
five year sentence. The writ of mandamus was dismissed as being moot. In Re:
Raymond Earl Barnett, 06-14-00132-CR (2014).
Petitioner then filed a pro-se motion with the trial court for a new trial on
punishment on the indecency case which had been affirmed. CR p. 122. The
Petitioner’s motion was denied. From the denial of this motion for a new trial on
punishment he appealed. The Court of Appeals held that he had waived his right to
appeal that issue by not raising it in his original direct appeal. He disagrees with
this holding and asks this Court to grant review.
STATEMENT OF PROCEDURAL HISTORY
The procedural history relevant to this PDR is:
1. The date that the original opinion from this appeal to the Sixth Court
of Appeals was handed down was July 24, 2015. Petitioner timely moved for
rehearing on August 3, 2015.
2. A supplemental opinion was handed down in reply to the Petitioner’s
motion for rehearing was handed down on October 15, 2015. The date that the
Court of Appeals Opinion became final was October 15, 2015.
7|Page 3. Petitioner filed a motion with the Court of Appeals to designate their
opinion as “published” instead of being non-published memorandum opinion.
The Court overruled that motion on October 27, 2015.
4. This Petition is timely if filed by November 15, 2015.
GROUNDS FOR REVIEW
1. The Court of Appeals errs in holding that Petitioner waived his right to appeal
the trial court’s denial of his motion for a new trial on sentencing on the remaining
charge of indecency with a child.
2. At what stage of the post-trial proceedings should claims of a prejudicial
spillover effect onto an affirmed charge from charges reversed on appeal, and then
dismissed by the State, be cognizable?
SUMMARY OF PETITION
The Court of Appeals erred in holding that the Petitioner waived his right to
appeal his claim of a spillover effect on his sentence for indecency with a child.
The claim was not even cognizable until the State strategically dismissed those
charges after they were remanded for a new trial. The correct time to seek a new
punishment hearing because of a spillover effect is when the claim first arises. Here
that occurred when the State dismissed the sexual assault charges.
8|Page ARGUMENTS
GROUND NUMBER 1
The Court of Appeals errs in holding that Petitioner waived his right to
appeal the trial court’s denial of his motion for a new trial on sentencing on the
remaining charge of indecency with a child.
The procedural history is set forth by the Court of Appeals. Barnett v. State
of Texas, No. 06-14-00149-CR (Tex. App. - Texarkana 2015) pp. 2 – 4. In
summary, the Petitioner was convicted by a jury of two counts of sexual assault of
a child, and one count of indecency with a child. He was sentenced to seventy-five
years on each count by the jury. The sentences were ordered to run concurrently.
On original direct appeal, the Court of Appeals reversed the two convictions for
sexual assault for factual insufficiency1 and remanded those cases back to the trial
court for a new trial. The indecency conviction was affirmed. Barnett v. State, No.
06-05-00281-CR, 2007 Tex. App. LEXIS 2724 (Tex. App.—Texarkana 2007, pet.
ref’d.). The remand order for a new trial on the sexual assault charges was ignored
for several years.
Petitioner ultimately filed a writ of mandamus with the Court of Appeals
seeking enforcement of the remand order. In Re: Raymond Earl Barnett, 06-14-
00132-CR. In reply to the writ, the State of Texas dismissed the two sexual assault
1 During the delay this Court abandoned review for factual insufficiency.
9|Page cases. The appellate court then dismissed the writ as moot. In Re: Raymond Earl
Barnett, 06-14-00132-CR. The trial court then entered a judgment nunc pro tunc,
attempting to reflect the current status of the case; that is, the Petitioner was only
convicted of indecency with a child. (CR Vol. 1, pp. 114 – 115.)
In response to the State’s dismissal of the sexual assault charges, and the
entry of the new judgment, the Petitioner filed a motion with the trial court for a
new trial on punishment on the remaining indecency charge. CR Vol. 1. p. 122 –
123; pp. 127. No relief from the trial court came. Petitioner gave notice of appeal.
CR Vol 1. p. 127.
On appeal, the Petitioner raised the issue that the trial court erred in not
granting him a new sentencing hearing on the indecency charge.2 His argument
was that the jury’s sentence of seventy-five years had been illegally affected by the
spillover of the two sexual assault cases. The Court of Appeals held that he had
waived the right to appeal that issue by not timely raising it in his direct appeal
from the original convictions. Barnett, id., p. 2; In this holding, the Court errs.
The Court of Appeals says that Petitioner waived the unlawful spillover
affect by: (a) not complaining at his original trial of the joinder of all cases, Barnett,
id., p. 13; or, (b) not raising it in his original direct appeal of all convictions,
2 The Court of Appeals agreed with Petitioner that the entry of the nunc pro tunc judgment by the trial court was error, and vacated that judgment. This leaves the original incorrect judgment showing convictions for two counts of sexual assault and indecency with a child in place. Of course this is wrong since two of those charges were dismissed. The Court of Appeals apparently holds that neither it nor the trial court has jurisdiction to enter a judgment which correctly recites Petitioner’s actual conviction. See Barnett, No. 06-14-00149-CR, pp 8- 11.
10 | P a g e Barnett, id., pp. 4-5; Neither of these reasons have any support in law, logic, or
reason.
The State was entitled to join all of these charges of child sexual abuse
together. TEX. PENAL CODE ANN. § 3.04 (West 2011). The Petitioner was not
entitled to a severance unless, as the Court of Appeals points out, he can show he
would be would be “unfairly prejudiced by a joinder of offenses.” Barnett, id. p. 13.
TEX. PENAL CODE ANN. § 3.04(c). The Court of Appeals reasons that the
Petitioner should have foreseen that it would hold on appeal that the evidence
would not convict him of the two charges of sexual assault. This is ludicrous. Next,
the Court of Appeals reasons that the Petitioner “could have argued during his
original appeal that if we found the evidence insufficient to support any of the
charges, then the remaining charges should have been reversed as well under the
spillover doctrine.” This proposition is equally comical.
To avoid waiving the valuable right of appeal the Court of Appeals would
hold Petitioner to the standards of Nostradamus. Pre-cognition requirements aside,
the claims of the illegal spillover effect were never cognizable on the original direct
appeal because they did not exist. They only came into existence when the State
dismissed the two sexual assault charges. Appellant’s first opportunity to appeal the
claim that his right to a fairly imposed punishment on the indecency case only
became viable once the State belatedly dismissed the sexual assault cases. Those
11 | P a g e charges were dismissed only when a writ of mandamus was filed to compel the
trial court to follow the appellate Court’s mandate issued years before. Logically,
and legally, Petitioner could not have even raised these issues in his direct appeal.
For these same reasons the Petitioner could not have pursued relief by way of a
writ of habeas corpus to this Court regarding the spillover issue.
In finding he waived his right to appeal, the Court of Appeals errs. In this
error, the Court “has so far departed from the accepted and usual course of judicial
proceedings, or so far sanctioned such a departure by a lower court, as to call for an
exercise of the Court of Criminal Appeals' power of supervision.” Tex. R. App. P.
Rule 66.3 (f).
Petitioner would show that the Court of Appeals has decided an important
question of state law that has not been, but should be, settled by the Court of
Criminal Appeals. Tex. R. App. P. Rule 66.3 (b). A spillover effect will arise most
commonly in the context of offenses joined for trial like indecency and sexual
assault of a child. This is due to the practical inability to sever these charges during
trial under section 3.04 (b) of the Penal Code. The opinion of the Court of Appeals
suggests that in every case joined under Texas Penal Code section 3.03(b) counsel
for an accused should anticipate the potential of a reversal of one of the charges on
appeal, and move for a severance under Penal Code section 3.04(c). Presumably,
12 | P a g e failure to do this gives rise to yet another area to claim ineffective assistance of trial
or appellate counsel. See United States v. Cross, 308 F.3d 308 (3d Cir. 2002).
Petitioner asks this Court to hold he was denied a fair trial on his
punishment, and to remand this case to the trial court for a new punishment hearing
on the indecency charge. Petitioner requests this Court hold he did not waive his
right to appeal, and remand the case to the Court of Appeals for it to consider
whether he was denied a fair punishment hearing.
GROUND NUMBER 2 (Question Presented)
At what stage of the post-trial proceedings should claims of a prejudicial
spillover effect onto an affirmed charge from charges reversed on appeal, and then
In United States v. Pelullo, the Court noted that although the invalidation
of the conviction on one count will not generally lead to reversal on other
counts, there is a possibility of a spillover effect from the tainted count that
could be sufficiently prejudicial to require reversal of all counts. United States
v. Pelullo, 14 F.3d 881 (3d Cir. 1994). In Thrift v. State, 176 S.W.3d 221, 223
(Tex. Crim. App. 2005), this Court, citing Pelullo, acknowledged that an unfair
spillover effect on charges remaining after appellate reversal of a joined
prosecution can occur.
13 | P a g e In Thrift, the Defendant was tried for sexual assault of a child and
indecency with a child. The State offered several pornographic photographs as
being relevant to the indecency charge. The trial court admitted the
photographs, but instructed the jury to consider them as evidence only on the
indecency case. The Court of Appeals held that the pornographic photographs
should not have been admitted into evidence, found harm, and reversed the
conviction for indecency. The sexual assault conviction was affirmed. This
Court granted a review of Thrift’s claim that the harm from the pornography
had a spillover effect on the conviction in the sexual assault case. Thrift id. at
221. After granting a review, this Court concluded that no unfair spillover
effect had occurred because an instruction limiting the jury’s consideration of
the evidence to the indecency charge had been given. Thrift id. at 221.
Thrift dealt with whether inadmissible evidence resulting in a reversal of
one charge could cause a spillover effect on a remaining conviction affirmed.
The issue was held to have been raised in the original direct appeal. The Court
of Criminal Appeals wrote:
The appellant's brief on original submission was ambiguous as to whether he was claiming error only in the conviction for indecency with a child or in both convictions. This ambiguity caused one justice on the court of appeals and the State to argue that the appellant waived his right to further review. Out of an abundance of caution and because the appellant's brief on original submission arguably encompassed the issue, the court of appeals considered the
14 | P a g e merit of the appellant's claim of a spillover effect from the evidence that may have influenced the jury's deliberation on the count of sexual assault of a child. Just as the court of appeals addressed this issue despite the ambiguity of the appellant's claim, we also will consider the merits of this case in order to clarify the ruling of the court of appeals. Thrift v. State, 176 S.W.3d 221, 223 (Tex. Crim. App. 2005)
Perhaps the Court of Appeals reads, without citing, Thrift as supporting
its holding that the Petitioner waived his Pelullo claim by not raising it in the
original direct appeal. If so, this would be in error because on its facts Thrift
concerned tainted evidence, not a subsequent strategic dismissal of charges by
the State.
A case more like Petitioner’s case is Ex parte Mills, 795 S.W.2d 203,
203 (Tex. Crim. App. 1990). In Mills, the defendant was tried on two counts of
theft, found guilty on both, and sentenced to 65 years. One of the counts was
reversed on appeal for insufficient evidence. The defendant contended that he
deserved a new trial on punishment on the remaining charge because of an
unfair spillover effect on his sentence from the jury’s consideration of the
reversed theft case. After granting a review, this Court found that no unfair
spillover effect had occurred in the sentencing.
In 1990, the applicant in Mills brought his claim of an unfair spillover
effect through the vehicle of a post-conviction writ of habeas corpus. This
Court had no concerns at that time about whether his claim was cognizable by
15 | P a g e way of a habeas writ. It is not so clear today. See e.g., Ex parte Marascio, 2015
Tex. Crim. App. LEXIS 1052 (Tex. Crim. App. Oct. 7, 2015). It is unclear
when someone in Petitioner’s position must, or can, bring his claim of an
illegal spillover effect, and request a new hearing on punishment.
Petitioner’s view is that a spillover effect claim can, and should, be
brought at the first time it becomes cognizable. In his case this first occurred
when the State dismissed the sexual assault charges. He filed a motion with the
trial court for a new sentencing trial on the indecency charge. When that was
denied he appealed to the Sixth Court of Appeals. That Court held that he had
waived, presumably forever, any right to bring that claim by not foreseeing that
the appeals court would hold the evidence insufficient, and, that years later the
State might ultimately dismiss those charges.
Bringing the claim at the time, and how Petitioner has is good policy for
several reasons:
1. It gives the trial court who heard the trial evidence the first shot at
considering the merits of the claim, and make findings of fact;
2. It allows for the potential of developing a record at an evidentiary
hearing at the trial court on the motion for a new punishment trial;
16 | P a g e 3. It allows the same Court of Appeals that originally reviewed the trial
record to re-examine the issue because of the State’s dismissal of the remanded
charges;
4. The defendant and alleged victim need not wait until the defendant’s
direct appeals are exhausted for the issue to be reviewed by a writ of habeas
corpus with this court.
5. Finally, for someone in Petitioner’s position who has already pursued
a writ regarding his case prior to the spillover claim arising, it would not
subject him to a claim of filing a successive writ.
In conclusion, by choosing a strategy of dismissing the remanded sexual
assault charges the State garnered an unfair advantage violating his rights to
due process of law. The State secured a sentence of seventy-five years based
upon harmful evidence that should not have been heard by the jury. The
Petitioner’s claim he would not have received the seventy-five year sentence
had the jury not also considered the evidence of two cases of sexual assault of
a child is one with merit. He raised it at the first available opportunity. He did
not waive his right to appeal that issue. He has done everything he can to
preserve it. He is entitled to have it reviewed on appeal.
PRAYER FOR RELIEF
17 | P a g e Petitioner prays this Court reverse the Court of Appeals holding he
waived his right to appeal. The case should be remanded to the Court of
Appeals for it to consider his claim that the trial court erred in not granting him
a new punishment hearing.
APPENDIX
A copy of the opinion of the Court of Appeals is attached.
RESPECTFULLY SUMITTED, ____________________ Steven R. Miears 211 North Main Bonham, Texas 75418 Stevemiears@msn.co m Tel. 903-640-4963 Fax: 903-640-4964 State Bar Card No. 14025600 Attorney for Appellant
Certificate of Service
This is to certify that a true and correct copy of the above and foregoing
petition for discretionary review was delivered by electronic filing to Richard
18 | P a g e E. Glaser, Fannin County Criminal District Attorney; 101 East Sam Rayburn
Drive; Bonham, Texas 75418; on November 6, 2015; and to the State
Prosecuting Attorney, LISA C. McMINN, P.O. Box 13046, Capitol Station,
Austin, Texas 78711 by electronic filing, and that a copy was mailed to the
Petitioner Raymond Earl Barnett.
_________________________________ Steven R. Miears CERTIFICATE OF WORD COUNT
Counsel for the Appellant certifies that the word count of this brief is less than 3,585
words and within the limitations for length of PETITIONS FOR DISCRETIONARY REVIEW.
_________________________ Steven R. Miears
19 | P a g e In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-14-00149-CR
RAYMOND EARL BARNETT, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court Fannin County, Texas Trial Court No. 20922
Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Burgess MEMORANDUM OPINION Raymond Earl Barnett appeals from the trial court’s entry of a judgment nunc pro tunc.
Barnett presents four points of error: 1) that the trial court erred by not granting him a complete
new trial on count two of the indictment, charging indecency with a child by sexual contact; 2) that
the trial court erred by not granting him a new sentencing hearing on count two of the indictment;
3) that the trial court erred in entering a judgment nunc pro tunc; and 4) that the trial court erred
by entering a judgment nunc pro tunc in a felony case without Barnett being present. We find that
Barnett failed to timely appeal his first and second points of error and, therefore, overrule those
points of error. We find that Barnett’s fourth point of error is legally flawed and overrule it.
Finally, we find that the trial court erred in entering the judgment nunc pro tunc, and we vacate
that judgment.
I. Procedural History
This case has a procedural history spanning more than eight years. Barnett was convicted
of two counts of sexual assault of a child and one count of indecency with a child by sexual contact
on October 13, 2005. He was sentenced to serve a term of seventy-five years’ incarceration in the
Texas Department of Criminal Justice Correctional Institutions Division on each count with the
sentences running concurrently. On October 13, 2005, the trial court entered a single judgment of
conviction covering all three counts. On direct appeal of his convictions, we reversed the two
sexual assault convictions, finding that the evidence was factually insufficient. Barnett v. State,
2 No. 06-05-00281-CR, 2007 Tex. App. LEXIS 2724 (Tex. App.—Texarkana 2007, pet. ref’d.).1
Because those convictions were reversed for factual insufficiency, we remanded the two sexual
assault charges to the trial court for retrial.2
Barnett then filed a petition for review with the Texas Court of Criminal Appeals, which
was denied on September 12, 2007. On October 23, 2007, we issued our mandate to the trial court.
Subsequently, Barnett filed an application for a writ of habeas corpus with the Court of Criminal
Appeals, which was denied on May 21, 2008. Barnett filed a second application for a writ of
habeas corpus with the Court of Criminal Appeals, which was dismissed on March 18, 2009.
Barnett then filed an application for a writ of habeas corpus with the Federal district court, which
was denied on October 12, 2011. Barnett v. Director, TDCJ-CID, 2011 U.S. Dist. LEXIS 117647
(E.D. Tex. 2011). Accordingly, Barnett’s conviction and seventy-five year sentence for indecency
with a child by sexual contact became final.
Between 2011 and 2014, the State took no action to retry Barnett on the two sexual assault
counts. Consequently, Barnett filed an application for writ of mandamus with us requesting us to
direct the trial court to immediately conduct a new trial on the two counts of sexual assault of a
child. In response to Barnett’s application for a writ of mandamus, the State moved to dismiss the
two sexual assault counts, and on July 30, 2014, the trial court granted the State’s motion. In turn,
1 Factual insufficiency review has since been abolished in criminal cases. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (holding that “legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt”). 2 When a case is reversed for factual insufficiency rather than legal insufficiency, the double jeopardy clause of the Fifth Amendment does not bar the State from retrial. Tibbs v. Florida, 457 U.S. 31, 42–43 n.19 (1982). 3 on August 12, 2014, we dismissed Barnett’s application for a writ of mandamus as being moot.
The trial court entered a judgment nunc pro tunc on July 29, 2014, reflecting that Barnett was
convicted of the offense of indecency with a child by sexual contact, enhanced with prior
convictions, and imposing a sentence of seventy-five years’ incarceration with no fine, and Barnett
filed this appeal.
II. Appealability of Barnett’s Points of Error
Rule 26.2 of the Texas Rules of Appellate Procedure provides that to perfect appeal in a
criminal case, a defendant must file a notice of appeal,
(1) Within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.
TEX. R. APP. P. 26.2. An appellate court lacks jurisdiction to hear an appeal in the absence of a
timely notice of appeal. Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988). The clerk’s
record indicates that no motion for new trial was filed in this case. The record also reflects that
the trial court entered its judgment on October 13, 2005, and the docket indicates that sentences
were imposed by the trial court in open court on that same date. Accordingly, Barnett’s window
of opportunity to appeal anything related to his original convictions and sentences expired on
November 12, 2005.
Of course, Barnett did timely file a notice of direct appeal from his original convictions
and sentences on November 1, 2005, which was the subject of our opinion in Barnett v. State, No.
06-05-00281-CR, 2007 WL 1053379 (Tex. App.—Texarkana Apr. 10, 2007, pet. ref’d) (mem. op.,
not designated for publication). Accordingly, any substantive issues not raised in Barnett’s 4 original appeal were waived. See TEX. R. APP. P. 38.1(h). Nevertheless, a judgment nunc pro tunc
is appealable, and a defendant has the right to appeal from the entry of a judgment nunc pro tunc
within the time limits established by Rule 26.2. Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim.
App. 2009). In this case, the judgment nunc pro tunc was entered on July 30, 2014, and Barnett
filed his notice of appeal on August 20, 2014. Accordingly, Barnett’s appeal of the judgment nunc
pro tunc is timely. That said, the scope of an appeal from the entry of a nunc pro tunc judgment is
limited.
A judgment nunc pro tunc may be entered only “to correct the record when there is a
discrepancy between the judgment as pronounced in court and the judgment reflected in the
record,” and “[c]orrections to the record are limited to clerical errors and are not appropriate for
errors involving judicial reasoning.” Id. at 898. Consequently, the appeal of a judgment nunc pro
tunc is limited to issues related to the clerical errors addressed therein; it does not provide the
appellant an opportunity to raise issues relating to the original conviction and sentence. Barnett’s
first and second points of error do not address issues regarding entry of the judgment nunc pro
tunc, but concern issues stemming from the original conviction and sentence. Accordingly, we
overrule Barnett’s first and second points of error.
III. Barnett’s Challenge to the Judgment Nunc Pro Tunc
Barnett’s third point of error challenges the entry of the judgment nunc pro tunc itself.
Barnett asserts that the judgment nunc pro tunc “was not proper because it did not simply correct
clerical errors, but instead entered a new judgment and sentence based upon changed
circumstances.” As noted above, judgments nunc pro tunc are entered to correct clerical errors,
5 not errors resulting from judicial reasoning. Id. at 904; see also Ex parte Dropps, 723 S.W.2d 669,
671 (Tex. Crim. App. 1986). “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.” Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980).
“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 v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007).
“Thus, before a judgment nunc pro tunc may be entered, there must be proof that the proposed
judgment was actually rendered or pronounced at an earlier time.” Wilson v. State, 677 S.W.2d
518, 521 (Tex. Crim. App. 1984).
The trial court’s nunc pro tunc judgment did not correct any clerical error in the court’s
original judgment. It is true that the nunc pro tunc judgment reflects a conviction on count two,
which was also recited in the original judgment. However, the judgment nunc pro tunc’s omission
of convictions on counts one and three does not reflect the judgment “actually rendered or
pronounced at an earlier time.” Id. at 521. The court’s original judgment “perfectly matches the
judgment pronounced in open court,” which was conviction on all three counts and concurrent
seventy-five year sentences for each conviction. The judgment nunc pro tunc in this case seeks to
memorialize events that occurred subsequent to rendering and entry of the original judgment.
Accordingly, a judgment nunc pro tunc was not the proper procedure to update the status of
Barnett’s case after dismissal of the two counts alleging sexual assault of a child.3 We sustain
Barnett’s third point of error.
3 Article 42.09, § 8(j) of the Texas Code of Criminal Procedure states: 6 IV. Barnett Has Failed to Show How he Was Harmed by Entry of the Judgment Nunc Pro Tunc in his Absence
In his fourth point of error, Barnett claims that the judgment nunc pro tunc should be set
aside because the trial judge entered that judgment without Barnett being present. Yet, we have
vacated the judgment nunc pro tunc by this opinion. Moreover, while we do not hold that Barnett’s
presence was required when the judgment nunc pro tunc was entered, Barnett has failed to
demonstrate how he was harmed by entry of the judgment in his absence. See McGinnis v. State,
664 S.W.2d 769, 771 (Tex. App.—Amarillo 1983, no pet.) (defendant unable to show harm by
trial court’s entry of judgment nunc pro tunc outside his presence). Accordingly, we overrule
Barnett’s fourth point of error.
V. Conclusion
For these reasons, we overrule Barnett’s first, second, and fourth points of error. We
sustain his third point of error and vacate the judgment nunc pro tunc.
Ralph K. Burgess Justice
Date Submitted: May 15, 2015 Date Decided: July 24, 2015
Do Not Publish
If after a county transfers a defendant or inmate to the Texas Department of Criminal Justice, the charges on which the defendant or inmate was convicted and for which the defendant or inmate was transferred are dismissed, the county shall immediately notify an officer designated by the department of the dismissal.
TEX. CODE CRIM. PROC. ANN. art. 42.09, § 8(j) (West Supp. 2014). 7 DENIAL OF MOTION FOR REHEARING
Barnett filed his Motion for Rehearing raising three issues. Pursuant to Rule 49.3 of the
Texas Rules of Appellate Procedure, we deny the Motion for Rehearing and dispose of the case
without rebriefing or oral argument. We write briefly to address two of the issues Barnett raises
in his motion.
In his first point of error in his Motion for Rehearing, Barnett alleges that we failed to
follow Rule 43.2 of the Texas Rules of Appellate Procedure, which states, “The court of appeals
may . . . (e) vacate the trial court’s judgment and dismiss the case.” See TEX. R. APP. P. 43.2(e).
Although he does not identify which case he wishes dismissed, he presumably asserts that because
we vacated the judgment nunc pro tunc, we are therefore required by Rule 43.2(e) to dismiss his
surviving 2005 conviction of indecency with a child and the corresponding seventy-five-year
sentence, thereby releasing him from prison. Yet, for the reasons discussed below, on appeal of a
judgment nunc pro tunc, there is no “case to be dismissed” for purposes of Rule 43.2(e). Therefore,
we properly vacated the judgment nunc pro tunc.
To understand why a judgment nunc pro tunc presents no case to be dismissed, one must
begin with a discussion of jurisdiction.
A trial court’s jurisdiction over a criminal case consists of “the power of the court over the ‘subject matter’ of the case, conveyed by statute or constitutional provision, coupled with ‘personal’ jurisdiction over the accused, which is invoked in felony prosecutions by the filing of [an] indictment or information if indictment is waived.”
State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009) (quoting Fairfield v. State, 610
S.W.2d 771, 779 (Tex. Crim. App. 1981)). Jurisdiction is “the right to adjudicate the subject matter
8 in a given case.” Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980). Such power
derives from “the Constitution or laws enacted thereunder.” Id. Once jurisdiction attaches to the
district court in a criminal matter, it “conveys upon that court the power to determine all essential
questions ‘and to do any and all things with reference thereto authorized by the Constitution and
statutes, or permitted district courts under established principles of law.’” Id. at 527–28 (quoting
Cleveland v. Ward, 285 S.W. 1063, 1069 (Tex. 1926)).
A trial court retains “plenary jurisdiction over a case for at least the first thirty days after
sentencing because it has the authority to receive a motion for new trial (or a motion in arrest of
judgment) within that time period and to resolve the merits of that motion within 75 days after
sentencing.” McClinton v. State, 121 S.W.3d 768, 769 n.1 (Tex. Crim. App. 2003) (Cochran, J.,
concurring). “Consequently, beyond that thirty-day period, ‘a source of jurisdiction must be found
to authorize the trial court’s orders.’” Dunbar, 297 S.W.3d at 780 (quoting State v. Patrick, 86
S.W.3d 592, 595 (Tex. Crim. App. 2002)). If no such source of jurisdiction is found, then the
judgment becomes final, and the trial court’s “jurisdiction is thereby exhausted.” Garcia, 596
S.W.2d at 528.
Nevertheless, a judgment nunc pro tunc can be issued after the trial court’s plenary
jurisdiction has expired to correct clerical errors. See Escobar v. Escobar, 711 S.W.2d 230, 231–
32 (Tex. 1986) (“After the trial court loses its jurisdiction over a judgment, it can correct only
clerical errors in the judgment by judgment nunc pro tunc.”). Although a judgment nunc pro tunc
can be characterized as a limited exception to the finality of judgments, in reality, a nunc pro tunc
judgment does not affect finality because it does not change the substance of the original final
9 judgment. Rather, a judgment nunc pro tunc “merely brings the court records into conformity
with” the court’s orally pronounced original, final judgment. Daniels v. Comm’n for Lawyer
Discipline, 142 S.W.3d 565, 572 (Tex. App.—Texarkana 2004, no pet.). Accordingly, when a
trial court correctly issues a judgment nunc pro tunc, it takes action in conformity with, rather than
contrary to, the original, final judgment. For this reason, a trial court’s entry of a judgment nunc
pro tunc does not reopen the merits of the original case, nor can it, because once the judgment
becomes final and the trial court loses plenary jurisdiction, it no longer has jurisdiction to do
anything except correct clerical errors.
Therefore, an appeal of a judgment nunc pro tunc does not present the entire “case” for
decision. Rather, an appeal of a judgment nunc pro tunc merely determines the limited issue of
whether the trial court had jurisdiction to render the judgment nunc pro tunc. If a trial court has
jurisdiction to issue a judgment nunc pro tunc, it may issue the judgment to correct clerical errors
without considering the merits of the underlying case. Likewise, if a trial court does not have
jurisdiction to enter the judgment nunc pro tunc, then it must deny the motion for entry of a
judgment nunc pro tunc without considering the merits of the underlying case. Either way, a trial
court considering a motion for judgment nunc pro tunc is without jurisdiction to reconsider the
merits of the underlying case, and an appeal from the entry of a nunc pro tunc judgment does not
confer jurisdiction on an appellate court to review the merits of the original conviction.
Barnett’s judgment and conviction became final years ago, and the trial court’s jurisdiction
was exhausted at that point. Also, the remaining two cases were previously dismissed by the trial
court. Consequently, there is no “case” before us to dismiss as that term is used in Rule 43.2(e).
10 Additionally, Barnett overlooks Rule 43.6, titled “Other Orders,” which states, “The court
of appeals may make any other appropriate order that the law and the nature of the case require.”
TEX. R. APP. P. 43.6. Also, Rule 43.3 states that when a court of appeals reverses a trial court’s
judgment, it “must render the judgment that the trial court should have rendered, except when:
(a) remand is necessary for further proceedings; or (b) the interests of justice require a remand for
another trial.” TEX. R. APP. P. 43.3. In this case, there is nothing further for the trial court to
decide. Additionally, “a trial court has the duty to vacate a void judgment at any time and has no
discretion to refuse to do so,” so the verdict we rendered is the one the trial court should have
rendered. In re Florance, 377 S.W.3d 837, 840 (Tex. App.—Dallas 2012, orig. proceeding) (citing
Thomas v. Miller, 906 S.W.2d 260, 262 (Tex. App.—Texarkana 1995, orig. proceeding)).
Consequently, we correctly vacated the judgment nunc pro tunc.
We overrule Barnett’s first point of error in his motion for rehearing.
In his second point of error, Barnett asserts that a new judgment must be issued because
the original judgment is incorrect. This point was raised, and we addressed it in our original
opinion above. Consequently, we deny Barnett’s second point of error.
In his third point of error, Barnett asserts that we erred in holding that he waived any
substantive issues arising out of the original trial when he did not appeal them at the time of his
first appeal. Specifically, Barnett asserts that because his indecency charge was tried together with
the two other subsequently reversed aggravated sexual assault charges, he was prejudiced by the
spillover effect of those two charges. Barnett raised this issue in his original brief, and we held
that it was waived because he did not raise it at the time of his original appeal. He argues here that
11 he could not have raised those arguments at the time because the arguments did not become viable
until after the charges were dismissed by the trial court’s order. Therefore, he reasons that he could
not have waived those claims and that we erred in so holding. He claims that we should grant
rehearing to allow him to appeal his spillover claim and that upon hearing that claim, we should
reverse the original conviction of indecency with a child and the corresponding seventy-five-year
sentence and order a new trial on that charge free from the taint of the now dismissed charges. 4
Barnett overlooks the fact that he could have raised his spillover argument at points prior
to and during his original appeal. First, Barnett had an opportunity to request separate trials at his
original trial. Section 3.04(a) of the Texas Penal Code states, “Whenever two or more offenses
have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a
severance of the offenses.” TEX. PENAL CODE ANN. § 3.04(a) (West 2011). Although
Section 3.04(c) states that the election permitted in subsection (a) “does not apply to a prosecution
for offenses described by Section 3.03(b)” of the Penal Code, and although Section 3.03(b) applies
to “an offense under [Penal Code] Section . . . 21.021 . . . committed against a victim younger than
17 years of age at the time of the commission of the offense,” Section 3.04(c) goes on to state that
a defendant can obtain the severance under Section 3.04(a) if “the court determines that the
4 It is questionable whether this is an appropriate argument for consideration on a motion for rehearing. As the Tyler Court of Appeals noted, “[T]he sole purpose of a motion for rehearing is to provide the appellate court an opportunity to correct any errors on issues already presented.” In re M.T., 290 S.W.3d 908, 910 (Tex. App.—Tyler 2009, no pet.). A motion for rehearing does not afford a party an opportunity to raise new issues.” Id. Moreover, as noted by the Ohio Court of Appeals, “An application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court.” State v. Owens, 678 N.E.2d 956, 957 (Ohio Ct. App. 1996). On the one hand, Barnett’s argument could be characterized as a mere disagreement with the court’s original decision. Yet, because we held that the argument was waived, because Barnett could not have known to address waiver until we issued our opinion, and because Barnett’s argument here specifically deals with the question of waiver, we will address the issue.
12 defendant . . . would be unfairly prejudiced by a joinder of offenses.” TEX. PENAL CODE ANN.
§ 3.04(c). Barnett failed to present any argument to the trial court that trial of all three offenses
together would unfairly prejudice him. Second, Barnett could have argued during his original
appeal that if we found the evidence insufficient to support any of the charges, then the remaining
charges should have been reversed as well under the spillover doctrine.
Consequently, Barnett’s spillover doctrine argument did not suddenly arise as a result of
the trial court’s dismissal of the reversed charges, and therefore, rehearing is not necessary to
resolve that issue. As we ruled in our opinion above, Barnett waived that point by failing to timely
raise it. Barnett’s third point of error in his motion for rehearing is overruled.
IV. Disposition
For the foregoing reasons, we overrule Barnett’s motion for rehearing.
Date Decided: October 15, 2015