in Re David Cornett

• Court: Court of Appeals of Texas
• Decided: June 29, 2022
• Docket: 10-22-00195-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00191-CR No. 10-22-00192-CR No. 10-22-00193-CR No. 10-22-00194-CR No. 10-22-00195-CR No. 10-22-00196-CR No. 10-22-00197-CR No. 10-22-00198-CR No. 10-22-00199-CR No. 10-22-00200-CR No. 10-22-00201-CR No. 10-22-00202-CR No. 10-22-00203-CR

IN RE DAVID CORNETT

Original Proceeding

From the 40th District Court Ellis County, Texas Trial Court Nos. 37235CR, 37236CR, 37237CR, 37238CR, 37239CR, 37240CR, 37241CR, 37242CR, 37243CR, 37244CR, 37245CR, 37246CR, and 37247CR

MEMORANDUM OPINION

After pleading guilty and waiving his right to appeal 13 convictions, David

Cornett, relator in these proceedings, challenged the convictions by filing a “Motion for

Nunc Pro Tunc Order to Remove the Improper Cumulation Order and Illegal Sentence in Cause No. 37235-37247CR” in each case. When the trial court, respondent in these

proceedings, denied the motions, relator appealed. We dismissed the appeals because

we have no jurisdiction of the appeal of a denial of a motion for judgment nunc pro tunc.

See Cornett v. State, 2022 Tex. App. LEXIS 3229, at *1 (Tex. App.—Waco May 11, 2022, no

pet. h.). Consequently, relator’s Petitions for Writ of Mandamus regarding the 13

convictions were filed on June 13, 2022, and in those petitions, relator requests we order

respondent to grant relator’s Motion for Nunc Pro Tunc Order in each case. 1

There are procedural problems with these petitions, such as, the respondent (the

trial court judge) and the real party in interest (the State) were not served as required by

the Texas Rules of Appellate Procedure, and the appendices attached to the petitions

were not properly certified. See TEX. R. APP. P. 9.5, 52.3 (k)(1)(A), and 52.7. However, to

expedite this decision, we use Rule 2 to suspend the operation of these rules. TEX. R. APP.

P. 2.

The purpose of a nunc pro tunc judgment is to provide a method for trial courts to

correct the record when there is a discrepancy between the judgment as pronounced in

court and the judgment reflected in the record. Blanton v. State, 369 S.W.3d 894, 897-98

(Tex. Crim. App. 2012). The corrections must reflect the judgment that was actually

rendered but that for some reason was not accurately entered into the record at the time

of the judgment. Id at 898. Further, nunc pro tunc judgments are limited to clerical

mistakes or errors in a judgment; not for errors involving judicial reasoning. Id.; see State

1 Technically, in his prayer, relator asked us to order respondent to rule on relator’s motions. Respondent has already ruled on the motions, and relator’s disagreement with those rulings is the subject of these proceedings. In re Cornett Page 2 v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (applying former Texas Rule of

Appellate Procedure 36); Jackson v. State, 362 S.W.3d 817, 819-20 (Tex. App.—Amarillo

2012, no pet.). There is nothing in this record to suggest respondent would be correcting

a clerical mistake if respondent granted relator’s motion. See Wilson v. State, 677 S.W.2d

518, 521 (Tex. Crim. App. 1984) (there must be proof that the proposed judgment was

actually rendered or pronounced at an earlier time).

Relator raised four issues in his Motion for Nunc Pro Tunc Order. They are as

follows:

1. Improper cumulation/stacking order in trial court cases numbers 37235 through 37247CR;

2. Double jeopardy in trial court case numbers 37236, 37237, 37240, 37241, 37245, and 37246CR;

3. Unauthorized sentence in trial court case number 37247CR; and

4. Prohibited Sexual Conduct Time-barred in trial court case number 37237CR.

These complaints are not requests for the correction of clerical errors. They are post-

conviction complaints about the propriety of sentences and various provisions in the

felony judgments relating to stacking, double jeopardy, unauthorized sentence, and

statute of limitations; not clerical errors. In other words, these are post-conviction attacks

on otherwise final judgments of felony convictions. Relator’s remedy, if any, is by the

route he has already used to attack at least one of those judgments, which he

acknowledges was unsuccessful, namely an application for a writ of habeas corpus,

specifically an article 11.07 writ. See TEX. CRIM. PROC. art. 11.07.

In re Cornett Page 3 Accordingly, because relator has an alternative legal remedy via an article 11.07

writ proceeding, over which we have no jurisdiction, see Olivo v. State, 918 S.W.2d 519,

525 n.8 (Tex. Crim. App. 1996) (jurisdiction); see also TEX. CODE CRIM. PROC. arts. 11.05,

11.07; Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex. App.—Waco 2006, no pet.), his

petitions for a writ of mandamus are denied.

Relator’s motions for leave to file the petitions are dismissed as moot.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Petitions denied Motions dismissed as moot Opinion delivered and filed June 29, 2022 Do not publish [OT06]

In re Cornett Page 4