NUMBER 13-11-00019-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JESUS DAVID HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court of Cameron County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Perkes
Appellant, Jesus David Hernandez, appeals the trial court’s denial of his motion for
new trial and entry of two judgments nunc pro tunc, contending by one issue that the
judgments nunc pro tunc corrected judicial rather than clerical errors.1 We affirm.
1 The Texas Court of Criminal Appeals has now held that “nunc pro tunc judgments are appealable orders” so long as “the appeal is timely filed.” Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012). Given that appellant timely filed his appeal, we have jurisdiction to consider his challenge. I. FACTUAL AND PROCEDURAL BACKGROUND2
On January 29, 2001, appellant pleaded nolo contendere to indecency with a child.3
At appellant’s plea hearing, the court admitted two exhibits, one of which was appellant’s
statement to the police.4 In it, appellant discussed the events giving rise to the indecency
charge. Appellant recounted:
Eventually I got on top of her and was making out with her. We both had our clothes on. By making out I mean just kissing and touching each other. I was just rubbing her back and I think I also rubbed her between her legs but I did not touch her crotch area . . . . We went into the bathroom and we closed and locked the door. The lights were on at first but I eventually turned them off. We laid [sic] down on the floor and I was on top of [her]. I had unzipped my pants but did not pull them off. We were about to have sex when [she] told me no. So we did not have sex but we continued to make out. I remember rubbing her crotch area once over her shorts, [and she] had her arms around me.
On March 2, 2001, the trial court signed an order of deferred adjudication and
placement on community supervision. The court described the offense as “Aggravated
Sexual Assault of a Child / 1 Count Indecency (Lesser Included Offense)” and entered “First
Degree Felony” in the blank provided for “Degree or Class of Offense.”
On November 1, 2001, the trial court revoked appellant’s community supervision after
appellant pleaded true to violating several community-supervision conditions. In the court’s
judgment revoking supervision, the trial court described the offense as “Aggravated Sexual
Assault of a Child” and listed on a separate line, “1 Count Indecency (Lesser Included 2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 3 Appellant also pleaded nolo contendere to aggravated sexual assault of a child. This offense was heard at the same plea hearing, but involved a different victim. This appeal concerns only the indecency with a child conviction and judgment. 4 Appellant made two statements to the police. The statement germane to this appeal is appellant’s second statement, which is State’s Exhibit Number 2. 2 Offense).” In the blank provided for “Degree of Offense,” the court again entered: “First
Degree Felony.” The court sentenced appellant to ten years’ confinement in the Texas
Department of Criminal Justice, Institutional Division.
On March 22, 2010, the trial court signed the following: (1) Order of Deferred
Adjudication, Placement of Community Supervision, Nunc Pro Tunc; and (2) Judgment
Revoking Supervision, Sentence to Institutional Division, Nunc Pro Tunc. In each, the court
identically modified the respective offenses from the 2001 deferred-adjudication order and
the 2001 community-supervision-revocation judgment, so that the offenses appeared in two
distinct counts:
“Aggravated Sexual Assault of a Child - Count I and
Lesser Included Offense of Indecency of a Child - Count II.”
In each, the court again entered “First Degree Felony” as the “Degree or Class of Offense.”
On August 12, 2010, the trial court signed two additional judgments nunc pro tunc
adjudicating guilt, thereby separating the two distinct offenses into independent judgments
nunc pro tunc. In the judgment nunc pro tunc for the now-stand-alone indecency with a
child conviction, the court entered “21.11 Penal Code” and “3rd Degree Felony” in the
respective blanks.
On October 26, 2010, the trial court signed yet another judgment nunc pro tunc
adjudicating guilt regarding the indecency with a child offense. In this judgment nunc pro
tunc, the court changed the degree of the offense from a third degree felony to a second
degree felony.
On November 16, 2010, appellant filed a motion for new trial, complaining of the
October 26, 2010 judgment nunc pro tunc. Appellant argued that the trial court should set 3 aside its October 26, 2010 judgment nunc pro tunc because “there is no clear and
convincing evidence to demonstrate that the Court, at the time the original judgment was
entered, intended that the offense to which Defendant pleaded to regarding Count II in the
plea agreement was to be a second degree felony rather than a third degree felony.”
On December 8, 2010, the trial court held a hearing on appellant’s motion for new
trial. During the hearing, appellant argued that the October 26, 2010 judgment nunc pro
tunc improperly corrected a judicial error because there was no record evidence specifying
whether the indecency charge was by contact, a second degree felony, or by exposure, a
third degree felony. After the hearing, the court denied appellant’s motion for new trial.
However, the court entered a new judgment nunc pro tunc adjudicating guilt on appellant’s
indecency with a child offense, thereby changing the section reference from “21.11 Penal
Code” to “21.11(a)(1) Penal Code.”5 The new judgment retained the “2nd Degree Felony”
designation. Appellant appealed the trial court’s October 26, 2010 and December 8, 2010
nunc pro tunc judgments.6 The trial court certified his appeal.
II. STANDARD OF REVIEW AND APPLICABLE LAW
The purpose of a judgment nunc pro tunc is to provide a method for trial courts to
5 Subsection (a)(1) creates an offense for “contact,” whereas Subsection (a)(2) creates an offense for “exposure.” The statute reads, in relevant part:
A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person: (1) engages in sexual contact with the child or causes the child to engage in sexual contact; or (2) with intent to arouse or gratify the sexual desire of any person: (A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or (B) causes the child to expose the child's anus or any part of the child's genitals.
TEX. PENAL CODE ANN. § 21.11(a) (West 2011). “An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.” Id. § 21.11(d). 6 Appellant did not challenge any of the preceding four nunc pro tunc orders/judgments. 4 correct the record when there is a discrepancy between the judgment as pronounced in
court and the judgment reflected in the record. TEX. R. APP. P. 23.1; Blanton v. State, 369
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NUMBER 13-11-00019-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JESUS DAVID HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court of Cameron County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Perkes
Appellant, Jesus David Hernandez, appeals the trial court’s denial of his motion for
new trial and entry of two judgments nunc pro tunc, contending by one issue that the
judgments nunc pro tunc corrected judicial rather than clerical errors.1 We affirm.
1 The Texas Court of Criminal Appeals has now held that “nunc pro tunc judgments are appealable orders” so long as “the appeal is timely filed.” Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012). Given that appellant timely filed his appeal, we have jurisdiction to consider his challenge. I. FACTUAL AND PROCEDURAL BACKGROUND2
On January 29, 2001, appellant pleaded nolo contendere to indecency with a child.3
At appellant’s plea hearing, the court admitted two exhibits, one of which was appellant’s
statement to the police.4 In it, appellant discussed the events giving rise to the indecency
charge. Appellant recounted:
Eventually I got on top of her and was making out with her. We both had our clothes on. By making out I mean just kissing and touching each other. I was just rubbing her back and I think I also rubbed her between her legs but I did not touch her crotch area . . . . We went into the bathroom and we closed and locked the door. The lights were on at first but I eventually turned them off. We laid [sic] down on the floor and I was on top of [her]. I had unzipped my pants but did not pull them off. We were about to have sex when [she] told me no. So we did not have sex but we continued to make out. I remember rubbing her crotch area once over her shorts, [and she] had her arms around me.
On March 2, 2001, the trial court signed an order of deferred adjudication and
placement on community supervision. The court described the offense as “Aggravated
Sexual Assault of a Child / 1 Count Indecency (Lesser Included Offense)” and entered “First
Degree Felony” in the blank provided for “Degree or Class of Offense.”
On November 1, 2001, the trial court revoked appellant’s community supervision after
appellant pleaded true to violating several community-supervision conditions. In the court’s
judgment revoking supervision, the trial court described the offense as “Aggravated Sexual
Assault of a Child” and listed on a separate line, “1 Count Indecency (Lesser Included 2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 3 Appellant also pleaded nolo contendere to aggravated sexual assault of a child. This offense was heard at the same plea hearing, but involved a different victim. This appeal concerns only the indecency with a child conviction and judgment. 4 Appellant made two statements to the police. The statement germane to this appeal is appellant’s second statement, which is State’s Exhibit Number 2. 2 Offense).” In the blank provided for “Degree of Offense,” the court again entered: “First
Degree Felony.” The court sentenced appellant to ten years’ confinement in the Texas
Department of Criminal Justice, Institutional Division.
On March 22, 2010, the trial court signed the following: (1) Order of Deferred
Adjudication, Placement of Community Supervision, Nunc Pro Tunc; and (2) Judgment
Revoking Supervision, Sentence to Institutional Division, Nunc Pro Tunc. In each, the court
identically modified the respective offenses from the 2001 deferred-adjudication order and
the 2001 community-supervision-revocation judgment, so that the offenses appeared in two
distinct counts:
“Aggravated Sexual Assault of a Child - Count I and
Lesser Included Offense of Indecency of a Child - Count II.”
In each, the court again entered “First Degree Felony” as the “Degree or Class of Offense.”
On August 12, 2010, the trial court signed two additional judgments nunc pro tunc
adjudicating guilt, thereby separating the two distinct offenses into independent judgments
nunc pro tunc. In the judgment nunc pro tunc for the now-stand-alone indecency with a
child conviction, the court entered “21.11 Penal Code” and “3rd Degree Felony” in the
respective blanks.
On October 26, 2010, the trial court signed yet another judgment nunc pro tunc
adjudicating guilt regarding the indecency with a child offense. In this judgment nunc pro
tunc, the court changed the degree of the offense from a third degree felony to a second
degree felony.
On November 16, 2010, appellant filed a motion for new trial, complaining of the
October 26, 2010 judgment nunc pro tunc. Appellant argued that the trial court should set 3 aside its October 26, 2010 judgment nunc pro tunc because “there is no clear and
convincing evidence to demonstrate that the Court, at the time the original judgment was
entered, intended that the offense to which Defendant pleaded to regarding Count II in the
plea agreement was to be a second degree felony rather than a third degree felony.”
On December 8, 2010, the trial court held a hearing on appellant’s motion for new
trial. During the hearing, appellant argued that the October 26, 2010 judgment nunc pro
tunc improperly corrected a judicial error because there was no record evidence specifying
whether the indecency charge was by contact, a second degree felony, or by exposure, a
third degree felony. After the hearing, the court denied appellant’s motion for new trial.
However, the court entered a new judgment nunc pro tunc adjudicating guilt on appellant’s
indecency with a child offense, thereby changing the section reference from “21.11 Penal
Code” to “21.11(a)(1) Penal Code.”5 The new judgment retained the “2nd Degree Felony”
designation. Appellant appealed the trial court’s October 26, 2010 and December 8, 2010
nunc pro tunc judgments.6 The trial court certified his appeal.
II. STANDARD OF REVIEW AND APPLICABLE LAW
The purpose of a judgment nunc pro tunc is to provide a method for trial courts to
5 Subsection (a)(1) creates an offense for “contact,” whereas Subsection (a)(2) creates an offense for “exposure.” The statute reads, in relevant part:
A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person: (1) engages in sexual contact with the child or causes the child to engage in sexual contact; or (2) with intent to arouse or gratify the sexual desire of any person: (A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or (B) causes the child to expose the child's anus or any part of the child's genitals.
TEX. PENAL CODE ANN. § 21.11(a) (West 2011). “An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.” Id. § 21.11(d). 6 Appellant did not challenge any of the preceding four nunc pro tunc orders/judgments. 4 correct the record when there is a discrepancy between the judgment as pronounced in
court and the judgment reflected in the record. TEX. R. APP. P. 23.1; 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 properly entered into the record
at the time of the judgment. Blanton, 369 S.W.3d at 898; see also Smith v. State, 15
S.W.3d 294, 298 (Tex. App.—Dallas 2000, no pet.) (noting Latin phrase “nunc pro tunc”
means “now for then” and describes the trial court’s inherent power to make its records
speak the truth).
A judgment nunc pro tunc is improper if it modifies, changes, or alters the original
judgment pronounced in the court, or has the effect of making a new order. Blanton, 369
S.W.3d at 898. Furthermore, judgments nunc pro tunc may not be used by a court to
change the record to reflect what the court believes should have occurred in the original
proceeding. Id. Instead, corrections to the record are limited to clerical errors and are not
appropriate for errors involving judicial reasoning. Id.; see Maldonado v. State, No.
13-00-00353-CR, 2001 Tex. App. LEXIS 6087, at *5 (Tex. App.—Corpus Christi Aug. 31,
2001, no pet.) (not designated for publication). The determination of whether an error is
clerical or judicial is a matter of law, and a trial court’s finding or conclusion in this regard is
not binding on an appellate court. Fanniel v. State, 73 S.W.3d 557, 559 (Tex.
App.—Houston [1st Dist.] 2002, no pet.) (citing Alvarez v. State, 605 S.W.2d 615, 617 (Tex.
Crim. App. [Panel Op.] 1980)).
III. DISCUSSION
Appellant argues that the trial court improperly corrected a “judicial error” and not a
“clerical error” when it signed judgments nunc pro tunc which indicated that the indecency 5 with a child offense was by “contact.” We disagree.
No criminal offense exists for mere indecency with a child; indecency is by either
contact or exposure. See TEX. PENAL CODE ANN. § 21.11(a)(1)–(2). Thus, when the trial
court accepted appellant’s plea, deferred adjudication of his guilt, and revoked his
community supervision, its express reference to “indecency with a child” was either a
reference to indecency by contact or by exposure.
During the 2001 hearing, the trial court admitted appellant’s statement in which
appellant acknowledged that he made sexual contact with the minor who was the victim in
appellant’s indecency with a child conviction. “Sexual Contact” includes “any touching of
any part of the body of a child, including touching through clothing, with . . . any part of the
genitals of a person” and “any touching of any part of the body of a child, including touching
through clothing, with . . . any part of the genitals of a person.” Id. § 21.11(c)(1), (2). In
appellant’s statement, he admits that he had his pants unzipped and was on top of the minor
and “rubbed her crotch area once over her shorts . . . .” These statements show that
appellant engaged in “sexual contact with the child or cause[d] the child to engage in sexual
contact.” See Id. § 21.11(a)(1). Therefore, the record shows that the court’s omission in
the original judgment was clerical, and not judicial, given that the applicable evidence
consisted of an admission of indecency by contact and not by mere exposure.
We hold that the December 8, 2010 judgment nunc pro tunc adjudicating guilt
correctly reflects the judgment that was actually rendered but that for some reason was not
properly entered into the record at the time of the judgment. In so holding, we need not
further address the October 26, 2010 judgment nunc pro tunc adjudicating guilt. See TEX.
R. APP. P. 47.1. Appellant’s sole issue on appeal is overruled. 6 IV. Conclusion
We affirm the trial court’s December 8, 2010 judgment nunc pro tunc adjudicating guilt.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 15th day of November, 2012.