Dana Alisha Wheatley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 24, 2022
• Docket: 13-21-00408-CR
• Status: Published

Opinion

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

2 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

3 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.