James Bilbro v. State

• Court: Court of Appeals of Texas
• Decided: January 24, 2018
• Docket: 05-17-00120-CR
• Status: Published

Opinion

AFFIRM; and Opinion Filed January 24, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00120-CR

JAMES BILBRO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F15-23845-K

MEMORANDUM OPINION Before Justices Lang-Miers, Fillmore, and Stoddart Opinion by Justice Fillmore James Bilbro was charged by indictment with manufacture or delivery of a controlled

substance, methamphetamine, in an amount of 400 grams or more. The indictment also alleged

Bilbro used or exhibited a deadly weapon during the offense. Bilbro entered an open plea of guilty

to the charged offense, and pleaded true to the deadly weapon allegation. The trial court found

Bilbro guilty of the offense, made an affirmative deadly weapon finding, and assessed punishment

of fifteen years’ confinement. On November 1, 2016, Bilbro filed a motion for new trial, which

the trial court granted on the same day. On December 19, 2016, the trial court entered an order

rescinding its November 1, 2016 order on the grounds “[t]he Court inadvertently granted

Defendant’s Motion for New Trial,” and denying Bilbro’s motion for new trial. In response, Bilbro

filed a motion to reconsider, which was denied. In a single issue, Bilbro contends the trial court erred in rescinding its November 1, 2016 order granting a new trial without conducting a hearing.

We affirm the trial court’s judgment.

“A judge may commit clerical error as well as judicial error.” Moore v. State, 446 S.W.2d

878, 880 (Tex. Crim. App. 1969); Smith v. State, 801 S.W.2d 629, 631 (Tex. App.—Dallas 1991,

no pet.). “[C]lerical error . . . can be corrected” by the trial court. English v. State, 592 S.W.2d

949, 956 (Tex. Crim. App. 1980); see also Rodriguez v. State, 42 S.W.3d 181, 186 (Tex. App.—

Corpus Christi 2001, no pet.) (“Clerical errors in both judgments and orders are subject to being

corrected.”). Judicial error is the product of judicial reasoning arising from a mistake in law or

fact. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994); Cornealius v. State, 870 S.W.2d

169, 176 (Tex. App.—Houston [14th Dist.] 1994), aff’d, 900 S.W.2d 731 (Tex. Crim. App. 1995).

Clerical error does not arise from judicial reasoning. Collins v. State, 240 S.W.3d 925, 928 (Tex.

Crim. App. 2007). The trial court may correct the entry of an order that incorrectly states the

court’s intent. English, 592 S.W.2d at 955–56. The trial court’s inadvertent grant of a motion for

new trial is a clerical error the trial court may rescind and correct. Id. (trial court may correct order

“signed by inadvertence and mistake . . . [where judge] had no intention of granting a new trial.”);

see also Kirk v. State, 454 S.W.3d 511, 513 n.10 (Tex. Crim. App. 2015) (recognizing trial court’s

authority to rescind an order granting a new trial that was the result of clerical error).

The December 19, 2016 order states that because “[the] Court inadvertently granted

Defendant’s [November 1, 2016] Motion for New Trial . . . the Court’s order granting Defendant’s

Motion for New Trial is RESCINDED and Defendant’s Motion for New Trial is DENIED.” No

hearing was held on the motion for new trial; no evidence was adduced from which the trial court

could have knowingly granted a new trial. English, 592 S.W.2d at 955 (“The signing of an order

form is not all there is to granting a new trial.”). The trial court did not intend to grant Bilbro’s

motion for new trial, and properly corrected its clerical error without holding a hearing. Stepan v.

–2– State, 244 S.W.3d 642, 643 (Tex. App.—Austin 2008) (concluding trial court did not err in

rescinding order granting a motion for new trial for which no hearing was held with a “nunc pro

tunc order sua sponte correcting the previous order signed by mistake” and affirming trial court’s

judgment without requiring further hearing). Requiring the trial court to hold a hearing concerning

the propriety of rescinding its December 19, 2016 order in this case would be a “useless task”

because the outcome would not change. See Homan v. Hughes, 708 S.W.2d 449, 454–455 (Tex.

Crim. App. 1986) (requiring trial court to hold a hearing on the propriety of entering an order nunc

pro tunc would be a “useless task” because trial court’s actions would remain unchanged).

/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE

Do Not Publish TEX. R. APP. P. 47

170120F.U05

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES BILBRO, Appellant On Appeal from the Criminal District Court No. 4, Dallas County, Texas, No. 05-17-00120-CR V. Trial Court Cause No. F15-23845-K. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Lang-Miers and Stoddart participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 24th day of January, 2018.

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