ORIGINAL PROCEEDING

MEMORANDUM OPINION

Relator Cedric Demond Atkins complains that the trial court signed an order granting the State's "Motion Nunc Pro Tunc," without notice or hearing, which changed the substance of the judgment of conviction. Specifically, he asserts that the trial court's order changed the judgment of conviction to reflect an offense that is different from the offense stated in his plea bargain agreement with the State. He seeks a writ of mandamus directing the trial court to vacate the order. We dismiss the petition.

BACKGROUND

On October 8, 2009, Relator, his attorney, and the attorney for the State signed various documents relating to a plea bargain agreement. According to the documents, the offense charged in the indictment was possession of a controlled substance, a third degree felony. The documents further reflect that Relator agreed to plead guilty to the offense and that he was admonished in writing that the range of punishment for the offense was imprisonment of not less than two years nor more than ten years and a fine of not more than $10,000. The agreed punishment was imprisonment for ten years, and the trial court would consider three other indicted but unadjudicated offenses in accordance with Texas Penal Code, Section 12.45. The "Felony Defendant's Plea of Guilty Waiver, Stipulation and Judicial Confession" included the following provision:

I do further admit and judicially confess that on or about the 29th day of September, 2008 in Cherokee County, Texas, I did then and there intentionally or knowingly possess a controlled substance, namely cocaine, in an amount of less than one gram and I committed the above offense within 1,000 feet of the premises of a school, to wit: Rusk Elementary School,
and I enter my Plea of Guilty to said offense. . . .

The plea documents and the judgment of conviction are consistent in their description of the offense as possession of a controlled substance, its classification as a third degree felony, and the agreed, and ultimately assessed, sentence. However, Relator's judicial confession describes the offense of possession of a controlled substance in a drug free zone. Also, the judgment reference to "481.115(d) Penal Code" appears to be erroneous. On the date of the offense, Texas Health and Safety Code Section 481.115, not Penal Code Section 481.115, defined offenses relating to possession of a controlled substance in penalty group 1. See Tex. Health & Safety Code Ann. § 481.115 (Vernon 2010). Cocaine, the substance Relator pleaded guilty to possessing, was included in penalty group 1. See id. § 481.102(3)(D) (West 2010). But Section 481.115(d) described a second degree felony offense, not than a third degree felony offense. See id. § 481.115(d).

On March 15, 2011, the State filed a "Motion Nunc Pro Tunc" requesting the trial court to "reform" the judgment of conviction to correctly reflect that the offense for which Relator was convicted was possession of a controlled substance in a drug free zone and that the statute proscribing the offense was "481.134(d)." Section 481.134(d) elevates an offense punishable under Section 481.115(b), a state jail felony, to a third degree felony if committed in a drug free zone. The trial court granted the motion, and signed the order on March 17, 2011. Thus, the judgment, as "reformed," provides that Relator was convicted of possession of a controlled substance in a drug free zone under Texas Health and Safety Code Section 481.134(d).

DISCUSSION

A judgment nunc pro tunc is the appropriate avenue to make a correction when the court's records do not mirror the judgment that was actually rendered. Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007). This means that a trial court can fix a clerical error in the record, but only errors that were not the result of judicial reasoning are considered clerical errors that can be fixed by a nunc pro tunc order. Id. The trial court cannot, through a nunc pro tunc order, change a court's records to reflect what it believes should have been done. Id. "Thus, before a judgment nunc pro tunc may be entered, there must be proof that the proposed judgment was actually rendered or pronounced at an earlier time." Id. (quoting Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim. App. 1984)). Nevertheless, in a criminal case, mandamus relief is authorized only if the relator establishes that (1) he has no other adequate legal remedy and (2) under the facts and the law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001).

Here, the trial court's nunc pro tunc order may be challenged by a postconviction application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Article 11.07. See generally Ex parte Dopps, 723 S.W.2d 669 (Tex. Crim. App. 1986) (per curiam) (addressing contention that trial court improperly used judgment nunc pro tunc to add finding not contemplated in plea bargain agreement and original plea proceeding). An application for writ of habeas corpus is generally an adequate remedy that will preclude mandamus relief. In re Piper, 105 S.W.3d 107, 109 (Tex. App.-Waco 2003, orig. proceeding) (citing Banales v. Thirteenth Court of Appeals, 93 S.W.3d 33, 36 (Tex. Crim. App. 2002) (orig. proceeding)). Therefore, Relator has not shown that he has no other adequate legal remedy.

Moreover, the habeas corpus procedure set out in Article 11.07 of the Texas Code of Criminal Procedure provides the exclusive remedy for felony postconviction relief in state court. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5 (West Supp. 2011); Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 484 (Tex. Crim. App. 1995) (en banc). There is no role for the courts of appeals in the procedure under Article 11.07. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3; Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 242 (Tex. Crim. App. 1991) (orig. proceeding). Accordingly, the petition for writ of mandamus is dismissed.

Sam Griffith

Justice

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

JANUARY 31, 2012

NO. 12-11-00180-cr

CEDRIC DEMOND ATKINS, Relator

v.

HON. BASCOM W. BENTLEY, III, Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by CEDRIC DEMOND ATKINS, who is the defendant in Cause No. 17363, pending on the docket of the 2nd Judicial District Court of Cherokee County, Texas. Said petition for writ of mandamus having been filed herein on February 23, 2011, and the same having been duly considered, because it is the opinion of this Court that writ of mandamus should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby DISMISSED.

Sam Griffith, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.