Homan v. Hughes

708 S.W.2d 449, 1986 Tex. Crim. App. LEXIS 848

• Court: Court of Criminal Appeals of Texas
• Decided: April 23, 1986
• Docket: 69556
• Status: Published

Opinions

OPINION

MILLER, Judge.

Applicant seeks to invoke this Court’s original jurisdiction to issue writs of mandamus and certiorari pursuant to Article 5, Sec. 5 of the Texas Constitution and Article 4.04, V.A.C.C.P.

Applicant is presently serving a life sentence at the Texas Department of Corrections for the offense of aggravated robbery. Applicant contends that respondent entered a “Probation Order and Deferred Adjudication of Guilt Nunc Pro Tunc” judgment improperly in that respondent did so ex parte, without allowing petitioner an opportunity to be heard. The procedural facts are as follow.

Applicant was charged with aggravated robbery alleged to have been committed on August 5, 1983. On September 23, 1983, a hearing was held before visiting Judge Don Humble of Milam County. The trial court asked the State’s attorney whether it moved to reduce the charge to robbery, and the State’s attorney responded that it did not. The trial court ascertained that applicant was charged with aggravated robbery, and asked applicant for his plea. Applicant voluntarily pled guilty to the offense of aggravated robbery. The record also reflects that applicant was represented by counsel, waived his right to a jury trial, and was fully admonished as to the punishment possible and that the court was not bound by any recommendation by the State. Applicant signed a judicial confession admitting commission of the offense of aggravated robbery, and was subsequently found guilty. The trial court deferred adjudication and placed applicant on supervised probation for a period of ten years. The “Probation Order and Deferment of Adjudication of Guilt,” filled out by the court clerk, as verified by her affidavit, stated that the offense was “aggravated robbery, but upon motion of the State, the offense was reduced to robbery, the defendant on trial for robbery.”

On July 26,1984, the State filed a motion to adjudicate guilt; an amended motion to adjudicate was filed on October 29, 1984. Both motions referred to the offense for which applicant’s guilt was deferred as aggravated robbery.

On April 25, 1985, respondent entered an “Entry of Probation Order and Deferment of Adjudication of Guilt Nunc Pro Tunc” stating that it had been brought to the attention of the court that the original deferred adjudication order had represented the offense to be “robbery” when the actual offense for which applicant’s guilt was deferred was “aggravated robbery.” The nunc pro tunc order contained the following statement by the trial court:

“The State has filed a motion to Correct the Probation Order and Deferment of Adjudication of Guilt Nunc Pro Tunc. The court having a recollection of said Order and being satisfied from its recollection and from the evidence that the statements on said State’s motion concerning said Order as hereinafter set out are true, is of the opinion that said motion of the State should be granted.”

The order was then changed to reflect that applicant was placed on deferred adjudication for the offense of “aggravated robbery.”

Applicant also filed a “MOTION TO SET ASIDE JUDGMENT [sic] NUNC PRO TUNC”, which was overruled by the court on May 10, 1985. The court proceeded with an adjudication hearing, and revoked applicant’s deferred adjudication that same day. Applicant was subsequently found guilty of aggravated robbery and sentenced to life imprisonment in the Texas Department of Corrections.

On May 23, 1985, applicant filed a written notice of appeal and affidavit of indi-gency. Anticipating the argument that the Texas Code of Criminal Procedure forbade an appeal after the hearing to adjudicate guilt, appellant in his notice of appeal specifically stated that applicant wanted only to appeal on grounds concerning the nunc pro tunc order and not the adjudication of guilt. Specifically, the notice of appeal stated:

“The Defendant realizes that Art. 42.12 Sec. 3d(b) does not permit the appeal of the adjudication hearing, but it is not the adjudication hearing that the. Defendant wishes, to appeal. The Defendant wishes to appeal the fact that there was a Nunc Pro Tunc order entered, to his detriment, without a hearing in violation of the due process clause....”

On May 24, 1985, the trial court entered an order denying applicant’s request for appeal, because:

“The Court finds that the Defendant is indigent, but that is of no consequence at this time because the Court further finds that Art. 42.12 Sec. 3d(b) bars the Defendant from appealing any issue to the Court of Appeals on direct appeal.”

Applicant contends that the trial court erred in entering the nunc pro tunc order without affording him an opportunity to be present for the hearing, represented by counsel, in order to accord him due process of law, citing Shaw v. State, 539 S.W.2d 887 (Tex.Cr.App.1976). Therefore, the trial court should not have overruled his request to appeal the entry of the nunc pro tunc order. Applicant requests by application for writ of mandamus, that the trial court be ordered to withdraw its denial of his request to appeal the entry of the nunc pro tunc order.

Since applicant entered a judicial confession and pled guilty to the offense, the trial court was correct in concluding that applicant had no right to appeal the court’s determination to proceed with an adjudication of guilt on the original charge, pursuant to the provisions in Art. 42.12, Sec. 3d(b), V.A.C.C.P. See also Contreras v. State, 645 S.W.2d 298 (Tex.Cr.App.1983); Richardson v. State, 617 S.W.2d 267 (Tex.Cr.App.1981); Daniels v. State, 615 S.W.2d 771 (Tex.Cr.App.1981); Joseph v. State, 614 S.W.2d 164 (Tex.Cr.App.1981); Wright v. State, 592 S.W.2d (Tex.Cr.App.1980). Thus, had applicant sought to appeal the adjudication of guilt, the trial court would have been authorized to overrule applicant’s request.

Applicant did not seek to appeal the adjudication of guilt, however. We think it apparent from the record that he sought to appeal his case urging the ground of error that concerned the trial court’s entry of the nunc pro tunc order. Nothing in Art. 42.-12, supra, prohibits appeal of matters unrelated to the determination of guilt after a deferred adjudication. In fact, a plain reading of the germane section indicates just the opposite.¹ If there is a prohibition against appealing a conviction that is in the posture of the present case, it must arise from some other source such as Art. 44.02, V.A.C.C.P., or the rule in Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972). No such source bars appeal in the case at hand, thus the trial court did not have the authority to “refuse” applicant’s request to appeal.

We must now determine whether applicant is entitled to a writ of mandamus. This Court has jurisdiction to issue writs of mandamus under Tex. Const. Art. V, Sec. 5, and Art. 4.04, Sec. 1, V.A.C.C.P. A writ of mandamus may be granted in order to set aside an unauthorized order entered by a trial court. State ex rel. Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App.1984); Ex parte Gray, 649 S.W.2d 640 (Tex.Cr.App.1983), at 642, citing State ex rel. Vance v. Hatten, 600 S.W.2d 828 (Tex.Cr.App.1980); State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978); State ex rel. Pettit v. Thurmond, 516 S.W.2d 119 (Tex.Cr.App.1974); and State ex rel. Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971). See also State ex rel. Wilson v. Harris, 555 S.W.2d 470 (Tex.Cr.App.1977). We may also issue writs of mandamus in order to protect our jurisdiction. Clawson, supra.

In the case before us, the trial court did not have the authority to prohibit applicant from appealing, as a ground of error, the court’s entry of a nunc pro tunc order. As previously stated, Art. 42.12, supra, prohibits appeal of the determination to adjudicate guilt; however, appeal on other matters is not proscribed. Thus, a writ of mandamus may lie in order to compel the trial court to vacate the improper order refusing applicant permission to appeal.

A party may obtain a writ of mandamus if he can establish two requirements: that the act sought to be compelled 'is purely ministerial, and that he has no other adequate remedy at law available. Holmes, supra at 899, citing Tex. Bd. of Pardons and Paroles v. Miller, 590 S.W.2d 142 (Tex.Cr.App.1979); Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980); and Routt, supra. See also Thurmond, supra and cases cited therein at 121.

In the case before us, since the trial court did not have the authority under law to refuse applicant “permission” to appeal the entry of the nunc pro tunc order, vacation of that order would be strictly ministerial in nature. See Harris, supra (requiring trial court to vacate an order requiring defendant to be released from jail eight hours daily for the purpose of working at a club held to be ministerial); Thurmond, supra (requiring trial court to vacate defendant’s sentence as misdemeanant when defendant could only be sentenced as a felon held to be ministerial); Clawson, supra (requiring trial court to vacate order granting defendant “good time” credit held to be ministerial).

Moreover, on the facts of this case, applicant has no other remedy at law. Since the trial court refused applicant “permission” to appeal, applicant was prevented from following the steps necessary to perfect his appeal under Art. 40.09, V.A.C. C.P. Since appellant’s sentence was pronounced on May 10, 1985, the Art. 40.09(3) and Art. 40.11 time limits for the court reporter to prepare the statement of facts has passed. Indeed, although there is no time limit imposed upon the clerk to prepare the transcript, under 40.09(1), we accept the fact that no transcript has been prepared; nor is one likely forthcoming as long as the trial judge’s ruling remains in effect. Thus the record has not been approved and no time limits for the preparation of briefs have commenced. Nevertheless, the appeal has been perfected by the giving of notice of appeal in a situation where appeal is allowed. Art. 44.08(a) and Art. 44.02.² No trial judge’s void order denying “permission” to appeal or “refusing” to allow an appeal can divest the appellate courts of their appellate jurisdiction once invoked by such a lawful giving of notice of appeal.

At this juncture it is appropriate to differentiate this type of case from others where the trial court has lost jurisdiction. Where, as here, appeal has been perfected, the trial court retains jurisdiction to supplement and approve the record, etc., for forwarding to the appropriate appellate court. See generally Chapters Forty and Forty-Four, V.A.C.C.P. Only when the record is filed in the appellate court are further proceedings in the trial court suspended. Art. 44.11. Contrast this situation with cases where the trial court loses jurisdiction and then later attempts to effectuate a return of that jurisdiction: i.e., Garcia v. Dial, supra, and Holmes, supra. In Garcia v. Dial, supra, the defendant sought a writ of mandamus directing the respondent to set aside an order reinstating a criminal case on the court’s docket. The case had previously been dismissed by the respondent on the basis that the State had not met the provisions of the Speedy Trial Act, Art. 32A.02, V.A.C.C.P. We held that once respondent dismissed the case, it lost jurisdiction entirely, and had no authority to reinstate the case at a later date. We also held that a writ of mandamus directing the respondent to dismiss the reinstated case was appropriate.

In Holmes, supra, the District Attorney of Harris County, as applicant, sought a writ of mandamus in order to compel a trial court judge, as respondent, to set aside a pre-trial order dismissing several indictments with prejudice. We stated:

“Since respondent has lost any jurisdiction over ... [the cases], and since the only manner in which respondent might re-obtain jurisdiction of these cases would be the return of grand jury indictments into respondent’s court, we hold that there is nothing to mandamus, ergo mandamus does not lie.”

Id. at 899.

In the preceding two cases, the trial courts lost all jurisdiction over the cases involved when the indictments were dismissed. This loss of jurisdiction encompassed the authority to have the cases reinstated in Garcia v. Dial, supra, and the authority to vacate an order dismissing the cases with prejudice in Holmes, supra. Thus, we could not order the respondent-trial courts to take action on cases which no longer existed.

The situation in the preceding two cases which affected our ability to require the trial courts to act is not present in the instant case. Since applicant’s case was never dismissed, there is still a case upon which respondent may act. We may therefore order respondent to vacate the improper order prohibiting applicant from appealing the entry of the nunc pro tunc order.

Applicant is entitled to relief with regard to the request for writ of mandamus to compel the trial court to vacate the improper order.³ Applicant’s timely notice of appeal, filed on May 23, 1985, was sufficient to confer jurisdiction upon the Court of Appeals. See Art. 44.08, V.A.C.C.P., and Penn v. State, 682 S.W.2d 881 (Tex.App.-Houston [14th], 1982). We note, however, that even if petitioner prevailed on appeal the trial court’s actions would, we can say with certainty, remain unchanged.⁴ We therefore will deny relief.

Such a decision flows from the premise that the law does not compel us to require courts to perform useless tasks. See Basaldua v. State, 558 S.W.2d 2 (Tex.Cr.App.1977), and cases cited therein at p. 5; Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977); and Henderson v. State, 552 S.W.2d 464 (Tex.Cr.App.1977). Based upon the facts of this case, the trial court did not err, except in the “ex parte” nature of his action, in correcting the original order deferring adjudication of guilt to reflect the proper offense for which applicant’s guilt was deferred. Thus, a hearing on the merits of the trial court’s action, even if ordered by an appellate court, would serve no purpose. Stated differently, even if applicant was successful in appealing his conviction on the ground that the trial judge erroneously entered the “ex parte” nunc pro tunc order, the outcome would not change since the trial court in all other ways properly changed the order. Since holding a hearing would be a “useless task,” we will not mandate an appeal whose sole ground of error⁵ and relief sought would result only in a remand of the case to the trial court for a hearing on the propriety of the entry of the order nunc pro tunc.

Relief is therefore denied.

TEAGUE, J., concurs to the granting of the writ, but dissents to this Court prematurely deciding the merits of the appellant’s appeal. W.C. DAVIS, J., not participating.

1 . Art. 42.12, Sec. 3d(b) states:

"On violation of a condition of probation imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 8 of this Article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and the defendant’s appeal continue as if the adjudication of guilt had not been deferred.” (emphasis added).

2 . See also Texas Rules of Appellate Procedure, Rule 30(b), wherein an appeal is perfected upon giving notice of appeal.

3 . The dissent would prefer that this case be handled under Art. 11.07, V.A.C.C.P. That would require of course that applicant’s conviction be final. Since his notice of appeal was given in open court, the conviction is of course still on appeal and certainly not final in spite of the trial judge’s "ruling”. As stated in Newsom v. State, 136 Tex.Cr.R. 114, 123 S.W.2d 887, 889 (1938).

“There are no further formalities necessary in order to cause an appeal in any criminal case other than to give notice of appeal in open court; and the failure of any officer to perform his plain duty cannot deprive a person convicted of crime of his legal right to have this court review the proceedings in his case.”

As to the dissent’s contention that we should defer to the Court of Appeals, the majority feels that a holding such as this should appropriately come from this Court and have statewide impact.

4 . The trial judge in his response to this Court contends that the entry of the nunc pro tunc order was appropriate. The records containing the plea papers all show that applicant pled guilty to aggravated robbery; the plea was to aggravated robbery, the terms and conditions of probation show the offense as aggravated robbery, and applicant’s application for probation shows aggravated robbery. Respondent continues:

"However, for some reason, the clerk entered on the docket and drew a judgment contrary to all these findings.

It became obvious when the motion to adjudicate was filed that there had been an error on the docket sheet and on the judgment. When this was called to my attention, I then inspected all of the above items [plea papers] and concluded that a Nunc Pro Tunc Order should be entered.

A Nunc Pro Tunc Order was entered and a hearing held on the motion to adjudicate. The defendant, Mr. Homan, was given life and a $20,000 fine. Neither Mr. Homan nor his counsel were present at the time the Nunc Pro Tunc Order was entered.

It was clear in my mind at that time that there were no defensible issues that could be raised.

Also contained in the trial judge’s response is an affidavit given by the Deputy District Clerk assigned to respondent’s court. In the affidavit, the witness states that she was working in her capacity as clerk on the date applicant entered his plea, and was present in the courtroom. She continues:

“The defendant, Mr. Homan, pled guilty to the offense of aggravated robbery. The Court withheld a finding of guilt and placed the defendant on 10 years deferred adjudication. The defendant signed his plea papers, Motion for Probation and Terms and Conditions of Probation reflecting his plea was to aggravated robbery.

For some reason, when I prepared the judgment and sentence in this case, I incorrectly showed the defendant pled to a reduced charge of robbery. At some later date, the defendant was charged with the offense of capital murder and filed on in another court. Subsequently, I discovered the mistake and promptly brought this error to the attention of Judge Jon Hughes.”

An affidavit was also filed by applicant’s counsel, who states:

“The defendant pled guilty to the charge of aggravated robbery without a recommendation or agreement from the State. He was given 10 years deferred adjudication.

The plea was entered to the charge of aggravated robbery not robbery, as the State was unable to offer probation or deferred adjudication for an aggravated offense. The only manner in which I could secure Mr. Homan's release from incarceration was by a plea without a recommendation to the Court. The State did not move to reduce the offense, and the Court did not do so on its on [sic] motion."

5 . We take applicant at his word that this is his sole ground of error since he has consistently maintained such throughout these proceedings.