TUCKER, MICHAEL v. the State of Texas

• Court: Court of Criminal Appeals of Texas
• Decided: February 12, 2026
• Docket: PD-1059-24
• Status: Published

Opinions

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-1059-24

MICHAEL TUCKER, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TRAVIS COUNTY

SCHENCK, P.J., delivered the opinion of the Court in which RICHARDSON, NEWELL, KEEL, and MCCLURE, JJ., joined. NEWELL, J., filed a concurring opinion. FINLEY and PARKER, JJ., concurred. YEARY, J., filed a dissenting opinion. Walker, J., dissented.

OPINION TUCKER–2

Appellant, Michael Tucker, was convicted under a predecessor statute of

super-aggravated sexual assault of a child, among other offenses. The minimum

term of confinement was twenty-five years, and Appellant was ineligible for parole

because the victim was under six years old at the time of the offense. 1

Appellant challenged the sufficiency of the evidence of one of his other

convictions. Tucker v. State, 706 S.W.3d 379, 387 (Tex. App.—Austin 2024) (op.

on reh’g) (en banc). While the case was pending at the court of appeals, the State

requested a judgment nunc pro tunc to reflect Appellant’s victim was under six

years old at the time of the offense by adding (f)(1) as a subsection in the “Statute

for Offense” box. 2 Id. at 390. The court of appeals held there was no error in the

judgment to modify because Section 22.021(f)(1) is not an element of the offense

but a punishment issue. 3 Id.

1 See TEX. PENAL CODE § 22.021(a)(2)(B), (f)(1) (2017); TEX. GOV’T CODE § 508.145(a)(4) (2017). In 2025, the legislature amended Section 22.021(f)(1) and changed the age from under six years old to under ten years old. Act of May 27, 2025, 89th Leg., R.S., ch. 557, § 21, sec. 22.021(f)(1), 2025 TEX. SESS. LAW SERV. 1313, 1323 (codified at TEX. PENAL CODE § 22.021(f)(1)). 2 The trial court did not have jurisdiction to enter a nunc pro tunc judgment because the case was on appeal. See TEX. R. APP. P. 25.2(g) (“Once the record has been filed in the appellate court, all further proceedings in the trial court – except as provided otherwise by law or by these rules – will be suspended until the trial court receives the appellate-court mandate.”). 3 The judgment includes a reference to the victim being under six years old at the time of the offense, but it is in the sex-offender registration part of the judgment. TUCKER–3

The State filed a petition for discretionary review challenging the denial of

its request for a judgment nunc pro tunc, which we granted. After the court of

appeals decided this case and after we granted review, this Court held the under-

six-years-old provision is an element of the offense. See Gutierrez v. State, 710

S.W.3d 804, 809 (Tex. Crim. App. 2025). The parties now agree the State is

entitled to relief. Given Appellant’s concession, we need not decide whether

subsection (f)(1) must be included in the judgment’s “Statute for Offense” box.

We reverse the court of appeals’s judgment, remand the cause to the trial

court, and order the trial court to modify the judgment of conviction for Count I in

appellate cause number 03-22-00697-CR (trial court cause number D-1-DC-21-

904045) to show “PC 22.021(a)(2)(B), (f)(1)” in the “Statute for Offense” box.

Delivered: February 12, 2026

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