in Re Trey Davis

• Court: Court of Appeals of Texas
• Decided: March 16, 2011
• Docket: 10-11-00004-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00004-CR

IN RE TREY DAVIS

Original Proceeding

MEMORANDUM OPINION

The trial court denied a motion for judgment nunc pro tunc filed by Trey Davis

which sought the entry of a judgment that reflected the oral pronouncement of his

sentence relating to the order his consecutive sentences would be served. Davis pled

guilty to robbery and burglary of a habitation with the intent to commit aggravated

assault. The plea agreement stipulated that the twenty-year sentence on each were to

be served consecutively, with the burglary conviction to be served prior to the robbery

conviction. In its oral pronouncement of sentence, the trial court stated that the robbery

sentence would be served prior to the burglary sentence. However, in the written

judgments, the trial court ordered that the burglary sentence would be served prior to

the robbery sentence. Davis filed a motion for judgment nunc pro tunc with the trial

court, which the trial court denied. Davis has filed a petition for writ of mandamus to compel the trial court to grant the motion for judgment nunc pro tunc and enter a

judgment in accord with its oral pronouncement. We will conditionally grant the writ.

Availability of Mandamus

To obtain mandamus relief in a criminal matter, the relator must establish that

the act sought to be compelled is ministerial rather than discretionary in nature and that

there is no other adequate remedy at law. Dickens v. Second Court of Appeals, 727 S.W.2d

542, 548 (Tex. Crim. App. 1987). A trial court’s failure to issue a nunc pro tunc order to

correct a wrongly executed ministerial duty is correctable by writ of mandamus. Ex

parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App. 2004); see also Castor v. State, 205

S.W.3d 666, 667 (Tex. App.—Waco 2006, no pet.) (denial of motion for judgment nunc

pro tunc is not appealable order). We find that mandamus relief is available to Davis.

Oral Pronouncement versus Written Judgment

It is mandatory that in a case such as this, a defendant’s sentence must be

pronounced orally in his presence. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West

2006); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte Madding, 70

S.W.3d 131, 135 (Tex. Crim. App. 2002). The judgment, including the sentence assessed,

is just the written declaration and embodiment of that oral pronouncement. TEX. CODE

CRIM. PROC. ANN. art. 42.01, § 1; Taylor, 131 S.W.3d at 500; Madding, 70 S.W.3d at 135.

When there is a conflict between the oral pronouncement of sentence and the sentence

in the written judgment, the oral pronouncement controls. Taylor, 131 S.W.3d at 500;

Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Madding, 70 S.W.3d at

135; Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). The rationale for this

In re Davis Page 2 rule is that the imposition of sentence is the crucial moment when all of the parties are

physically present at the sentencing hearing and able to hear and respond to the

imposition of sentence. Madding, 70 S.W.3d at 135. Once he leaves the courtroom, the

defendant begins serving the sentence imposed. Id. Thus, “it is the pronouncement of

sentence that is the appealable event, and the written sentence or order simply

memorializes it and should comport therewith.” Id., quoting Coffey, 979 S.W.2d at 328.

Judgment Nunc Pro Tunc

A judgment nunc pro tunc is appropriate to correct clerical errors when the trial

court’s records do not mirror the judgment actually rendered. Collins v. State, 240

S.W.3d 925, 928 (Tex. Crim. App. 2007). A nunc pro tunc order is not appropriate to

correct judicial errors or omissions, however. Ex parte Poe, 751 S.W.2d 873, 876 (Tex.

Crim. App. 1988) (en banc). Before a judgment nunc pro tunc may be entered, there

must be proof that the proposed judgment was actually rendered or pronounced at an

earlier time. Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim. App. 1984).

Analysis

Davis has provided a copy of the transcript from his plea hearing before the trial

court where the trial court clearly stated that the robbery sentence would be served

prior to the burglary sentence. Neither Davis nor the State objected. We sought a

response to Davis’s petition; however, the State did not respond. Based on the record

before us, there is no question that the written judgment does not reflect the oral

rendition. As such, the trial court’s denial of the motion for judgment nunc pro tunc

was erroneous. We sustain Davis’s issue.

In re Davis Page 3 Conclusion

We conditionally grant Davis’s mandamus petition. A writ will issue only if

Respondent fails to withdraw his order denying Davis’s motion for judgment nunc pro

tunc and fails to enter a judgment granting his motion within fourteen days after the

date of this opinion.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Writ Conditionally Granted Opinion delivered and filed March 16, 2011 Do not publish [OT06]

In re Davis Page 4