Opinion
No. 05-06-00563-CR
Opinion Filed May 7, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F94-44527-HI.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
OPINION
Larry D. Lindsey appeals the trial court's nunc pro tunc judgment adjudicating guilt. In three issues, appellant contends the trial court's nunc pro tunc judgment is improper because it corrected a judicial error and is prohibited by laches and collateral estoppel. We affirm. Appellant was indicted in 1995 for burglarizing a habitation "with the intent to commit a felony other then theft, namely, sexual assault." As part of a plea agreement, ultimately disapproved by the trial court, appellant signed a judicial confession in which he pleaded nolo contendere "to the offense of Burg of Habitation exactly as alleged in the charging instrument. . . ." Appellant also signed a stipulation of evidence stipulating that he unlawfully, knowingly, and intentionally entered the complainant's habitation without her effective consent with the intent to commit felony sexual assault. After the trial court refused to accept the plea agreement, appellant entered an open guilty plea. The trial court placed him on deferred adjudication community supervision for ten years and assessed a $1,000 fine. The trial court's deferred adjudication order reflects appellant's offense as "Burglary of a Habitation" and "Degree: First." In 1997, the State filed a motion to proceed with adjudication of guilt in the present case and in an unrelated aggravated assault. Appellant entered a plea of true to one of the State's allegations alleging he had committed a theft. In pronouncing him guilty, the trial court stated: "I do proceed to find you guilty of burglary of a habitation and aggravated assault as charged in each of those indictments." The trial court's judgment reflected appellant was convicted of burglary of a habitation. In 2006, the State filed a motion for judgment nunc pro tunc asking the trial court to correct the judgment to reflect appellant's conviction of burglary of a habitation with intent to commit a felony other than theft, namely, sexual assault. After conducting a hearing on the motion, the trial court issued a nunc pro tunc judgment changing the offense description to "burglary of a habitation as charged in the indictment." In his first issue, appellant contends the trial court's entry of the nunc pro tunc judgment is improper because it corrects a judicial error. Appellant contends the error involved "is not the type of omission that is so divorced from judicial reasoning as to fall within the ambit of a clerical error." The State responds the error is merely clerical and, thus, capable of correction. We agree with the State's position. The purpose of a nunc pro tunc order is to correctly reflect from the records of the court a judgment actually made by it, but which for some reason was not entered of record at the proper time. Ex parte Poe, 751 S.W.2d 873, 876 (Tex.Crim.App. 1988); see also Ex Parte Madding, 70 S.W.3d 131, 135 (Tex.Crim.App. 2002) (in case of conflict, oral pronouncement of sentence prevails over written judgment). The State's motion cites Poe as its authority for the relief it sought. In Poe, the indictment alleged the defendant committed murder by shooting the complainant with a handgun, a deadly weapon. A jury found him guilty as charged in the indictment. Later, the trial court ordered a judgment nunc pro tunc reflecting an affirmative finding of a deadly weapon. The court of criminal appeals upheld the judgment of the trial court noting the trial judge was required to enter a judgment that correctly reflected what the trier of fact had determined. Appellant contends Poe is distinguishable from the present case for three reasons. First, appellant contends the jury in Poe found "the defendant guilty as charged in the indictment" and no similar finding was made in this case at the time appellant was initially placed on probation. In this case, appellant was placed on deferred adjudication. Placing a defendant upon deferred adjudication does not result in a judgment of conviction. See Donovan v. State, 68 S.W.3d 633, 636 (Tex.Crim.App. 2002). The trial court had no opportunity to find appellant guilty as charged at the time he was placed upon deferred adjudication. See id. However, the record reflects that the trial court did find appellant guilty "as charged in each of those indictments" at the time he was adjudicated guilty. Thus, the present case is indistinguishable from Poe on this ground. Second, appellant contends Poe is distinguishable because the trial court in Poe was statutorily required to correct the judgment to incorporate a deadly weapon finding. In this case, the trial court, like the jury in Poe, actually found appellant guilty as charged in the indictment. The trial court acted to correct an error to reflect what actually happened at the adjudication hearing. We conclude this correction falls within the doctrine announced in Poe and relied upon by the State in this case. See Poe, 751 S.W.2d at 876. Finally, citing Fanniel v. State, appellant contends Poe is distinguishable because it involved regular probation rather than deferred adjudication. See Fanniel v. State, 73 S.W.3d 557, 560 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (concluding trial court could not correct judgment to add affirmative finding of deadly weapon because omission from original judgment was result of judicial reasoning rather than clerical error). We conclude it is Fanniel that is distinguishable. In Fanniel, after pleading guilty to possession of a controlled substance and true to the enhancement paragraph alleging the use of a deadly weapon, the defendant was placed on deferred adjudication and subsequently adjudicated guilty. See id. at 558. At the time of adjudication, the trial court did not make an affirmative deadly weapon finding. See id. More than thirty days after adjudication, the trial court entered a judgment nunc pro tunc reflecting the deadly weapon finding. See id. At the nunc pro tunc hearing, the trial court confessed it had not entered a deadly weapon finding because it was unaware of the existence of the deadly weapon paragraph or appellant's plea of true. See id. at 558-59. Thus, in Fanniel, the purpose of the nunc pro tunc judgment was to add a deadly weapon finding not made at the adjudication hearing. The Fanniel court emphasized the trial court had never made an affirmative deadly weapon finding before inserting one into the nunc pro tunc judgment. See id. at 560. In contrast, the nunc pro tunc judgment in this case reflects the trial court's actual finding that appellant was guilty as charged in the indictment. Because the trial court's nunc pro tunc judgment does no more than correct a clerical error so that the judgment reflects the pronouncement orally made by the trial court at the adjudication hearing, we overrule appellant's first issue. See Poe, 751 S.W.2d at 876; see also Pickett v. State, 440 S.W.2d 853, 853-54 (Tex.Crim.App. 1969) (allowing corrected judgment to reflect defendant's actual conviction for "assault with intent to murder with malice aforethought" rather than "assault with intent to murder"). In his second issue, appellant contends the doctrine of laches bars the nunc pro tunc judgment. Laches operates to bar relief when the applicant neglects to assert its right or claim which, taken together with lapse of time and other circumstances, causes prejudice to the adverse party. Ex parte Carrio, 992 S.W.2d 486, 487 n. 2 (Tex.Crim.App. 1999), citing Black's Law Dictionary 875 (6th ed. 1990). The State contends appellant was not prejudiced by the judgment nunc pro tunc. Appellant contends the decade-long delay in bringing the State's motion did prejudice him because it impacts his prospects for parole. The doctrine of laches focuses on prejudice, rather than the length of the delay, and often concerns the ability of a party to recall events after the passage of many years. See Carrio, 992 S.W.2d at 488 n. 3. Appellant was properly convicted of burglary of a habitation as charged in the indictment. The mere passage of time in correcting the error does not prejudice appellant in the manner contemplated by the doctrine of laches. Correcting the trial court's clerical error at any time during the intervening decade would have had the same effect upon appellant's parole prospects. Although appellant contends he and the parole board relied upon the judgment as written, appellant does not show how he has been harmed by either his reliance or the parole board's alleged reliance. We conclude appellant has not shown the necessary prejudice to invoke the doctrine of laches. See id. We overrule appellant's second issue. In his third issue, appellant contends the State is barred by collateral estoppel from seeking the nunc pro tunc judgment. See Ashe v. Swenson, 397 U.S. 436, 443 (1970) (concluding parties may not relitigate in a future lawsuit ultimate facts already once determined by a valid and final judgment); Ex parte Watkins, 73 S.W.3d 264, 267 (Tex.Crim.App. 2002) (collateral estoppel bars retrial of specific and discrete facts that have been fully and fairly adjudicated). Appellant contends the trial court found him "guilty" but did not find him "guilty as charged in the indictment" when it adjudicated his guilt. In fact, the record shows the trial court did pronounce him guilty "as charged in each of those indictments." We conclude the judgment nunc pro tunc is not barred by collateral estoppel. We overrule appellant's third issue. We affirm the trial court's nunc pro tunc judgment adjudicating guilt.