in Re: Don Whatley

• Court: Court of Appeals of Texas
• Decided: August 15, 2002
• Docket: 01-02-00795-CV
• Status: Published

Opinion

Opinion issued August 15, 2002

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-02-00795-CV

IN RE DON WHATLEY, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator filed in this Court a pro se petition for writ of mandamus asking that we order the respondent ⁽¹⁾ to grant his motion for judgment nunc pro tunc and remove from the judgment in cause number 17007 the affirmative finding that a deadly weapon was used in the commission of the offense. We deny the petition.

The petition does not meet the requirements of the Texas Rules of Appellate Procedure. It does not include a certificate of service indicating that respondent was served with a copy of the petition. See Tex. R. App. P. 9.5.

In addition, relator has not provided us with a sufficient record that shows he is entitled to relief. See Tex. R. App. P. 52.7. Such a record would have to demonstrate that relator's motion for judgment nunc pro tunc was to correct a mere clerical error. A nunc pro tunc order may correct clerical errors in a judgment, but not judicial omissions or errors resulting from judicial reasoning. Compare Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988) (trial court's entry of judgment nunc pro tunc to reflect jury's finding of deadly weapon was proper because omission in original judgment was clerical error), with Fanniel v. State, 73 S.W.3d 557, 559 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (trial court's entry of judgment nunc pro tunc to include affirmative finding of deadly weapon was improper because absence of such finding in original judgment was result of judicial reasoning, rather than clerical error).

The petition for writ of mandamus is denied.

PER CURIAM

Panel consists of Justices Hedges, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.

1.

Respondent is the Honorable William McAdams, Judge, 12th District Court, Walker County.