in Re Nolan Rodriguez, Relator

• Court: Court of Appeals of Texas
• Decided: August 25, 2010
• Docket: 04-10-00564-CR
• Status: Published

Opinion

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MEMORANDUM OPINION

No. 04-10-00564-CR

IN RE Nolan RODRIGUEZ

Original Mandamus Proceeding1

PER CURIAM

Sitting: Phylis J. Speedlin, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: August 25, 2010

PETITION FOR WRIT OF MANDAMUS DENIED

On August 2, 2010, relator Nolan Rodriguez filed a petition for writ of mandamus,

complaining of the trial court’s order denying his motion for judgment nunc pro tunc. For the

foregoing reasons, we deny the petition for writ of mandamus.

On October 12, 1978, a jury convicted relator of attempted capital murder in Cause No. 78-

CR-1749, and relator contends he was orally sentenced to twenty years’ confinement. On December

4, 1978, relator plead guilty to possession of a prohibited weapon in Cause No. 78-CR-1748. Relator

complains the trial court sentenced him to ten years’ confinement in Cause No. 78-CR-1748, and

… This proceeding arises out of Cause No. 78-CR-1749, styled State v. Rodriguez, in the 144th Judicial 1

District Court, Bexar County, Texas, the Honorable Catherine Torres-Stahl presiding. 04-10-00564-CV

then improperly ordered the twenty year sentence imposed in Cause No. 78-CR-1749 to run

consecutively to the ten year sentence imposed in Cause No. 78-CR-1748. Relator subsequently

appealed Cause No. 78-CR-1749, and the conviction was affirmed by this court. See Rodriguez v.

State, 644 S.W.2d 200 (Tex. App.—San Antonio 1982, no pet.). Relator also filed a petition for writ

of habeas corpus in the Texas Court of Criminal Appeals, which was dismissed. See Ex parte

Rodriguez, No. WR-28, 015-04, 2010 WL 2113112 (Tex. Crim. App. May 26, 2010).

Relator then filed a motion for judgment nunc pro tunc in the trial court, seeking the deletion

of the cumulation order. On July 6, 2010, the trial court denied the motion for judgment nunc pro

tunc, concluding there was no error in the defendant’s judgment. Relator now seeks mandamus

relief from this court, requesting that we compel the trial court to reform the judgment and sentence

in Cause No. 78-CR-1749 by deleting the cumulation order.

We agree with the trial court’s denial of the motion for judgment nunc pro tunc because such

an entry is not appropriate. “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). An error

in the entry of a judgment is clerical as long as the error did not come about as the product of judicial

reasoning. Id. The judgment in this case accurately reflected the trial court’s action, and any error

here resulted from a judicial determination, not a clerical error. As a result, any error the trial court

made in the cumulation order cannot be remedied by a judgment nunc pro tunc.

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Therefore, we conclude the trial court did not err in denying relator’s motion for judgment

nunc pro tunc. Accordingly, the petition for writ of mandamus is DENIED. See TEX . R. APP . P.

52.8(a).

DO NOT PUBLISH

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