Weatherly, Rohn M

• Court: Court of Criminal Appeals of Texas
• Decided: February 26, 2020
• Docket: WR-61,215-09
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-61,215-09

EX PARTE ROHN M. WEATHERLY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-371-W011665-1380491-C IN THE 371ST DISTRICT COURT FROM TARRANT COUNTY

Per curiam.

ORDER

Applicant entered an open plea of guilty to unlawful restraint, and was sentenced to fifteen

years’ imprisonment. The Second Court of Appeals affirmed his conviction. Weatherly v. State, No.

02-16-00026-CR (Tex. App. — Fort Worth Dec. 8, 2016) (not designated for publication). After

Applicant’s conviction was final, the trial court entered a judgment nunc pro tunc, amending the

judgment to show that Applicant was required to register as a sex offender as a result of this

conviction. Applicant filed an application for writ of habeas corpus, pursuant to which this Court

granted relief in the form of deleting trial court’s order for judgment nunc pro tunc. Ex parte

Weatherly, No. WR-61,215-07 (Tex. Crim App. Sept. 11, 2019) (not designated for publication).

The State moved for a new judgment nunc pro tunc, which was opposed by Applicant. The 2

trial court entered another judgment nunc pro tunc on October 18, 2019. Applicant filed an appeal

from the new judgment nunc pro tunc, which is pending in the Second Court of Appeals in cause

number 02-19-00394-CR. On January 10, 2020, Applicant filed this application for a writ of habeas

corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE

CRIM . PROC. art. 11.07.

The State in its response to this application recommends that the application be dismissed

for want of jurisdiction because Applicant’s appeal from the new judgment nunc pro tunc is pending.

However, the appeal from the judgment nunc pro tunc is separate from the underlying conviction,

which is final for purposes of Article 11.07 habeas review. This Court does not lack jurisdiction to

consider Applicant’s habeas application. However, as the State points out, the validity of the

judgment nunc pro tunc does affect some (but not all) of the claims raised in this application for writ

of habeas corpus. Therefore, this Court will abstain from deciding Applicant’s habeas claims until

Applicant has exhausted his appellate remedies with regard to the judgment nunc pro tunc. This

application is dismissed without prejudice.

Filed: February 26, 2020 Do not publish