Opinion
No. 08-19-00245-CR
02-25-2021
TOMAS ERNESTO GONZALEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 120th District Court of El Paso County, Texas (TC# 20190D00146) OPINION
Appellant Tomas Ernesto Gonzalez pleaded guilty to a single charge of aggravated assault with a deadly weapon. The indictment of that charge alleged that Gonzalez had threatened the complaining witness with a knife. Following entry of his plea of guilty, the trial court deferred adjudication of Gonzalez's guilt and placed him on community supervision pursuant to a plea agreement with the State. The State subsequently filed a motion to adjudicate guilt alleging several violations of the terms and conditions of community supervision. The trial court adjudicated Gonzalez's guilt of the original aggravated-assault charge and sentenced him to three (3) years' confinement. On the same date, the trial court entered a nunc pro tunc order of deferred adjudication. On appeal, Gonzalez contends in two issues that (1) there was insufficient evidence to support his original plea of guilt; and (2) that the entry of a nunc pro tunc order deprived him of his due process rights. Finding no error, we affirm.
I. BACKGROUND
By indictment, Gonzalez was charged with aggravated assault with a deadly weapon whereby it was alleged he threatened "Rocio Nevarez-Devasquez with imminent bodily injury," and he did use or exhibit a deadly weapon during the commission of said assault, "to wit: a knife . . . ." On May 2, 2019, Gonzalez pleaded guilty to the charge against him. During the hearing and without objection, the prosecutor orally summarized the State's evidence and submitted formal plea papers signed by Gonzalez in which he admitted all allegations of the indictment and confessed to having committed the offense charged.
Along with the clerk's record, an original and a supplemental transcript of the plea hearing were filed with this appeal, both prepared by the same court reporter. The two transcripts differ from each other in one respect. When the prosecutor summarized the State's evidence, the original transcript shows she stated the evidence at trial would establish that Gonzalez threatened "Rocio Nevarez Vasquez" with imminent bodily injury. The supplemental reporter's record (amended volume 2), however, shows that the prosecutor stated the victim's name as "Rocio Nevarez Devasquez," which is consistent with the spelling of the complainant's name as alleged in the indictment. Both transcripts otherwise show that the prosecutor next stated that Gonzalez used and exhibited a deadly weapon, "to wit[ ] a knife," during the commission of the assault.
When asked by the court whether the summary of the evidence heard by Gonzalez was true and correct, Gonzalez responded: "It's true." After confirming the terms of the plea agreement and Gonzalez's corresponding motion for deferred adjudication, the trial court found there was sufficient evidence to substantiate a finding of guilt at that time; but, pursuant to the agreement with the State, the court deferred adjudication and placed Gonzalez on three-years' community supervision with specified terms and conditions to include completion of a batterer's intervention and prevention program (BIPP). The trial court also made a deadly weapon finding, while further admonishing him that, pursuant to that finding, he could not possess or transfer a firearm nor ammunition.
On May 9, 2019, the court signed a written order of deferred adjudication reflecting that, on May 2, 2019, Gonzalez had entered a plea of guilty to the offense of aggravated assault with a deadly weapon. Although the first page of the order identified that the court had entered a deadly weapon finding, "AFFIRMATIVE TO WIT: A KNIFE," the second page of that order described the deadly weapon used or exhibited during the commission of the offense as "namely, A MOTOR VEHICLE . . . ."
On July 17, 2019, the State filed a motion to adjudicate Gonzalez's guilt asserting he had violated several terms and conditions of his supervision to include the commission of a new offense, an assault on a family member. On October 1, 2019, the court held a contested hearing on the State's motion. At the start of the hearing, counsel for Gonzalez argued that the court lacked jurisdiction "because there was not sufficient evidence to support his plea of guilty . . . ." When the trial court asked counsel to clarify whether an appeal of the plea and sentence had been filed, he confirmed he was not aware of any such appeal. Counsel next proceeded to point out that page 2 of the deferred judgment had incorrectly described the type of deadly weapon as a motor vehicle, rather than a knife, as charged by the indictment. Referring to the court's notes, the trial judge responded that there may be a need for "a nunc" of the judgment, as the notes had confirmed the court had made a finding of a knife.
Following this discussion, the State proceeded to call two witnesses in support of its motion, a probation officer and a police officer. Gonzalez presented testimony from himself and his wife, Rocio Nevarez. The State re-directed with a second police officer. At the conclusion of the October 1 hearing, the trial court found that Gonzalez had violated several terms and conditions of his probation, adjudicated him guilty of the offense of aggravated assault with a deadly weapon, and sentenced him in open court to three (3) years' confinement. That same day, the trial court also entered a nunc pro tunc order of deferred adjudication, which corrected the type of deadly weapon used or exhibited, on the second page of the original order, from a motor vehicle to a knife.
On October 7, 2019, Gonzalez filed his notice of appeal challenging "an appealable order against Appellant by judgment and sentence" entered on October 1, 2019.
II. DISCUSSION
In two issues on appeal, Gonzalez asserts (1) the evidence was insufficient to support his guilty plea; and (2) he was deprived of due process when the trial court entered a judgment nunc pro tunc, without notice, which was adverse to him.
We address each issue in turn.
A. Issue One: The original guilty plea
In his first issue, Gonzalez contends there was insufficient evidence to support his guilty plea because the "complete and actual" name of the complainant, as alleged in the indictment, was not introduced. Specifically, Gonzalez argues that, when the State summarized the evidence at the plea hearing, the prosecutor stated that the evidence would show at trial that he had threatened "Rocio Nevarez," whereas the indictment described the complainant-victim as "Rocio Nevarez-Devasquez." Pursuant to article 1.15 of the Texas Code of Criminal Procedure, he contends that the evidence was insufficient to support his original guilty plea because the State did not introduce evidence of the complete and actual name of the complainant as alleged in the indictment. TEX. CODE CRIM. PROC. ANN. art. 1.15. The State counters with a three-part argument: (1) that Gonzalez forfeited any sufficiency of evidence claim as to his original plea, (2) even if Gonzalez raises a proper appeal, no variance exists in the name in the indictment nor in the name read during the plea hearing, and (3) even if there is a variance, it was not material and did not render insufficient the evidence to support Gonzalez's plea or conviction.
Article 1.15 provides in part:
No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. TEX. CODE CRIM. PROC. ANN. art. 1.15.
We first address the timeliness of the appeal.
1. Timeliness of the appeal of the original plea
The State contends that, regardless of which version of the reporter's record of the plea hearing is considered, Gonzalez was required to raise any challenge to the sufficiency of the evidence supporting his original plea at the time when the deferred-adjudication community supervision was first imposed. We agree.
2. Analysis
Gonzalez complains here not of the revocation of his community supervision, but of the sufficiency of the evidence presented by the State in support of his original deferred adjudication proceeding. The Court of Criminal Appeals has specifically held that a defendant placed on deferred-adjudication community supervision may raise an issue relating to the original plea proceeding only in an appeal taken when the deferred-adjudication community supervision is first imposed. Riles v. State, 452 S.W.3d 333, 337 (Tex. Crim. App. 2015) (citing Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999)).
This limitation of the right to appeal includes issues relating to the sufficiency of the evidence supporting the guilty plea. Perez v. State, 424 S.W.3d 81, 85 (Tex. Crim. App. 2014); Wiley v. State, 410 S.W.3d 313, 319 (Tex. Crim. App. 2013). A defendant cannot wait until he is adjudicated guilty to bring issues related to the original plea hearing. Ramirez v. State, No. 08-09-00245-CR, 2011 WL 241954, at *1 (Tex. App.—El Paso Jan. 26, 2011, no pet.) (not designated for publication). Notwithstanding this restriction, a procedural default is premised on an appellant's knowledge of, and failure to challenge, issues that were known to him at the time of his original plea. Riles, 452 S.W.3d at 337; Wiley, 410 S.W.3d at 321.
Here, Gonzalez had the adjudication of his guilt deferred and was placed on community supervision pursuant to his plea agreement with the State. At the plea hearing, regardless of whether the original transcript is solely considered, Gonzalez admitted that the name of the victim was true and correct as presented by the State's summarization of the evidence. The trial court entered its order of deferred adjudication on May 2, 2019, but Gonzalez did not appeal that order until October 7, 2019 —or, 158 days later. Though he could have appealed from his plea of guilty and questioned the sufficiency of the evidence underlying the conviction, he did not. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); TEX. R. APP. P. 26.2(a)(1) (unless a motion for new trial is filed, the notice of appeal of a criminal case must be filed within 30 days after the day the sentence is imposed or suspended in open court); see also Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) ("A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction.").
Instead, he waited to do so until after the trial court had revoked his probation, adjudicated his guilt, and levied a sentence of confinement. In accord with Wiley and Manuel, we conclude that the delay caused Gonzalez to forfeit the claim he now advances. Wiley, 410 S.W.3d at 319; Manuel, 994 S.W.2d at 661-62. This procedural default prevents us from even addressing whether any alteration in the name resulted in an insufficiency of the evidence to support his original plea of guilty. Wiley, 410 S.W.3d at 321. Because Gonzalez did not bring his appeal at the time he was placed on deferred adjudication, we are without jurisdiction to consider this argument on appeal.
Having reached this conclusion, we need not address the merits of Gonzalez's first issue or the additional counterarguments made by the State.
Gonzalez's first issue is overruled.
B. Issue Two: The nunc pro tunc order
In his second issue, Gonzalez asserts a nunc pro tunc order was entered without notice to him and he was therefore deprived of due process. Specifically, Gonzalez argues the nunc pro tunc order of deferred adjudication, which corrected the deadly weapon finding to a knife from a motor vehicle, was entered without proper notice. The State counters (1) that Gonzalez failed to invoke this Court's jurisdiction to consider the merits of any issues relating to the nunc pro tunc order of deferred adjudication, (2) that Gonzalez's argument that he did not receive proper notice and opportunity to be heard is not supported by the record, and (3) the nunc pro tunc order corrected a clerical error, which was proper, and thus, remanding to the trial court would be a "useless task[.]"
1. Applicable Law
The purpose of a nunc pro tunc judgment is to allow trial courts a method to correct the trial record when there is a discrepancy between the pronounced judgment in court and the judgment reflected in the record. Blanton v. State, 369 S.W.3d 894, 897-98 (Tex. Crim. App. 2012). Any corrections made must reflect judgments actually rendered and are limited to clerical errors. Id. at 898. Nunc pro tunc orders are not appropriate for errors that involve judicial reasoning, or which seek to modify, change, or alter the original judgment to reflect what the court believes "should have occurred . . . ." Id. Determining whether the corrected error is clerical or judicial is a matter of law and depends on the nature of the error, not who made the error. Gomez v. State, 459 S.W.3d 651, 667 (Tex. App.—Tyler 2015, pet. ref'd). Before a trial court may enter an unfavorable nunc pro tunc order, the defendant must be given an opportunity to be present for the hearing and represented by counsel. Shaw v. State, 539 S.W.2d 887, 890 (Tex. Crim. App. 1976). Even still, if the trial court is properly changing or correcting a clerical error, remanding for a hearing could be deemed a "useless task . . . ." Homan v. Hughes, 708 S.W.2d 449, 454-55 (Tex. Crim. App. 1986).
2. Analysis
Initially, the State argues that Gonzalez's notice of appeal from the order of adjudication failed to invoke this Court's jurisdiction to consider any issues relating to the nunc pro tunc order of deferred adjudication. Because the State construes the notice of appeal too narrowly, we disagree.
A nunc pro tunc order is a stand-alone appealable order. See Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012) ("Rule 23.1 does not expressly provide for the appeal of nunc pro tunc judgments, but our caselaw and Legislative acceptance has provided that right.") As such, Rule 26.2 requires that a notice of appeal be filed within thirty days after the trial court enters the appealable order. See TEX. R. APP. P. 26.2(a)(1). Although the original deferred adjudication order was entered on May 2, 2019, the nunc pro tunc order subject of this appeal was not rendered until October 1, 2019. As a stand-alone order, the thirty-day filing period started the following day. Here, Gonzalez's notice of appeal filed on October 7, 2019, described his intention to challenge "an appealable order against Appellant by judgment and sentence" entered October 1, 2019. To the extent his appeal may be reasonably construed to apply to issues arising from the entry of the nunc pro tunc judgment, we conclude it is not an appeal of the original plea proceeding itself. See id.
Gonzalez asserts that the trial court entered a nunc pro tunc without notice to him and the nunc pro tunc was unfavorable as it sought to enter a deadly weapon finding not supported by sufficient evidence. Gonzalez has brought an issue of lack of notice, which we proceed to address. Shaw, 539 S.W.2d at 890; Juarez v. State, No. 02-18-00116-CR, 2019 WL 3955212, at *3 (Tex. App.—Fort Worth Aug. 22, 2019, pet. ref'd) (mem. op., not designated for publication). On review, the record establishes that Gonzalez himself brought up the purported error on the Order of Deferred Adjudication at the start of the revocation hearing. The trial court noted the error was a clerical error as the hearing of May 2 included the court's finding of a deadly weapon, which referred to a knife; and consequently, the court suggested the error could be resolved by a "nunc." The record of the plea hearing supports the trial court's finding of a deadly weapon, to-wit, a knife, following the prosecutor's summary that included use of such evidence during the commission of the charge. Gonzalez agreed at that hearing that such evidence was true and correct. At no time during the plea hearing, did Gonzalez object to the deadly weapon finding, and he was even admonished that he may not possess or transfer a firearm or ammunition due to that finding. The Order of Deferred Adjudication that followed named the deadly weapon finding as a knife on the first page but mistakenly placed the type of weapon as a motor vehicle on the second page.
Bringing the error to the court's attention, we conclude that Gonzalez was aware of the trial court's correction of the error that had been made regarding the type of deadly weapon used, and thus, the entry of the nunc pro tunc without prior notice did not deprive him of due process. Juarez, 2019 WL 3955212, at *2-3 (holding a nunc pro tunc order correcting that defendant was originally placed on "deferred-adjudication" as opposed to "straight" probation, entered at the same time as the Judgment Adjudicating Guilt, did not deprive the defendant of his due process rights when the record supported that he had notice of being placed on deferred adjudication probation from the beginning). Furthermore, even assuming the correction of the deadly weapon finding is unfavorable to Gonzalez (yet, only as to changing the second page from motor vehicle to knife), a hearing on the issue would be a "useless task." See Homan, 708 S.W.2d at 454 (useless tasks premise applied); see also Shaw, 539 S.W.2d at 890 (holding no reversible error when trial court corrected appellant's sentence to show the actual amount of time credit earned). A hearing would not change the outcome, as the record confirms the trial court did not err in correcting a mere clerical error. Juarez, 2019 WL 3955212, at *3.
Gonzalez's second issue is overruled.
III. CONCLUSION
We affirm. February 25, 2021
GINA M. PALAFOX, Justice Before Rodriguez, C.J., Palafox, and Alley, JJ. (Do Not Publish)