Opinion
13-23-00059-CR
10-16-2024
AMADO MARTINEZ JR. A/K/A AMADO MARTINEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2(b).
ON APPEAL FROM THE 357TH DISTRICT COURT OF CAMERON COUNTY, TEXAS
Before Contreras Chief Justice and Longoria and Peña Justices.
ORDER OF ABATEMENT
PER CURIAM
A jury convicted appellant Amado Martinez Jr. a/k/a Amado Martinez of the offense of aggravated assault with a deadly weapon, a first-degree felony, and sentenced him to twenty-five years' imprisonment. See Tex. Penal Code Ann. § 22.02(b)(1). On appeal, Martinez asserts three issues, which we construe as five. In his fifth issue, Martinez complains that the trial court dismissed the charge upon which he was convicted at trial by written order. Because the error alleged in his fifth issue implicates principles of double jeopardy, we abate the appeal and remand the case for a hearing for the purpose of determining the circumstances underlying the trial court's action.
Martinez was indicted by a grand jury for committing aggravated assault of a deadly weapon, Count I; burglary of a habitation, Count II; and attempted murder, Count III. On January 9, 2023, a jury was selected, and trial commenced. Prior to jury selection, the trial court conducted a hearing on Martinez's motion for change of venue and motion to suppress. While addressing Martinez's motion for change of venue, the trial court asked if Martinez's "suppressions" were on "all three cases." The State responded, "Just on this one, Judge." The trial court asked "What is this one?" and the State responded "The aggravated assault case," and "We're only going to go on that count." The trial court then suspended the hearing on Martinez's motion for change of venue and proceeded to conduct a hearing on his motion to suppress. After the trial court ruled on both motions, the case proceeded to jury selection. After the jury was selected, the trial court called the case and the State read the indictment, which solely consisted of the aggravated assault with a deadly weapon charge. Martinez pled "not guilty" and the parties presented opening statements. After the parties presented evidence and closing statements, the jury found Martinez guilty of aggravated assault with a deadly weapon and sentenced him to twenty-five years' imprisonment. The trial court signed and entered its written judgment of conviction on January 12, 2023.
The clerk's record contains a combined "State's Motion to Dismiss Count(s) 2 & 3 of the Indictment" and "Order Dismissing Count(s) 2 & 3 of the Indictment." The motion portion of the combined filing indicates the State sought to dismiss Counts II and III of the indictment. The order portion of the combined filing indicates that the trial court considered the State's motion "asking for permission of the Court to dismiss Count(s) 2 & 3 against [Martinez]" on January 9, 2023, and stated that "the Court is of the opinion that the reason(s) so state is/are good and sufficient to authorize dismissal." The order further stated "IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED by the Court, that the State's Motion to Dismiss Count(s) I of the Indictment heretofore filed herein be and the same is hereby GRANTED" and contained a hand-written signature of the trial judge. Notably, the roman numeral "I" of the quoted language was also handwritten. The reporter's record indicates that neither the trial court nor the parties addressed the motion or order on the record. It was not until Martinez filed his appellate brief that he raised an issue concerning the trial court's order. In response to this issue, the State has suggested that the order contains a clerical error.
Clerical errors in both judgments and orders are subject to being corrected. English v. State, 592 S.W.2d 949, 955-56 (Tex. Crim. App. 1980); Smith v. State, 801 S.W.2d 629, 633 (Tex. App.-Dallas 1991, no pet.). An error is clerical in nature if it did not come about as the product of judicial reasoning. Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980). Whether an error is judicial or clerical in nature is a question of law. Id. The purpose of a nunc pro tunc order is to reflect correctly the judgment or order actually rendered by the court, which for some reason was not entered of record at the proper time, and to reflect the truth of what actually occurred. Alvarez, 605 S.W.2d at 617; Smith, 801 S.W.2d at 633.
Several courts have found signed orders that conflicted with oral pronouncements to be clerical errors. English, 592 S.W.2d at 954-55 (trial court's mistakenly signing order form granting a new trial was clerical error; "[t]he signing of an order form is not all there is to granting a new trial"); Galvan v. State, 995 S.W.2d 764, 765 (Tex. App.-San Antonio 1999, no pet.) (finding clerical error where court orally denied plea of double jeopardy, but signed a written order with the "granted" line checked-off, and "evidence in the record indicate[d] that the oral pronouncement was the correct manifestation of the court's intention"); Jiminez v. State, 953 S.W.2d 293, 295 (Tex. App.-Austin 1997, pet. ref'd) (finding clerical error where "record clearly reflect[ed] that the district court overruled the motion to quash and that the written order granting the motion was mistakenly signed by the court"). Generally, those cases involved a nunc pro tunc order and a hearing in which the trial court explained the circumstances making the judgment or order a clerical error. See English, 592 S.W.2d at 955 (hearing was held in which judge testified he signed order by mistake); Jiminez, 953 S.W.2d at 295 (record included nunc pro tunc order reciting that written order was signed inadvertently).
As shown above, the reporter's record indicates that the trial court was made aware on the record that the State was proceeding only on Count I, though neither the trial court nor the parties expressly addressed the State's motion to dismiss or the trial court's order granting dismissal on the record. Furthermore, the State's motion specifically requested dismissal of Counts II and III, and trial commenced solely on Count I, the aggravated assault with a deadly weapon charge, which resulted in a conviction by the jury. Thus, the record contains some indication that the trial court's order granting dismissal of Count I resulted from clerical error. However, there has been no determination at the trial court level that the order granting dismissal of Count I was erroneously entered and the parties never raised the issue before the trial court. Therefore, if the order was erroneously entered, the circumstances making the error clerical and not judicial have not been shown in the record before us. Accordingly, we remand this case to the trial court for it to conduct a hearing, not later than thirty days from the date of this order, to determine whether its entry of the written order purporting to grant dismissal of Count I was a clerical error. See Smith, 801 S.W.2d at 633 (remanding for trial judge to make fact determinations as to whether order reflected what actually occurred; acknowledging that although determining whether error is clerical or judicial is question of law, appellate courts do not make fact determinations); Rodriguez v. State, 42 S.W.3d 181, 186 (Tex. App.-Corpus Christi-Edinburg 2001, no pet.) (remanding for trial court to conduct a hearing in order to determine whether its entry of a written order purporting to grant a motion to quash was a clerical error). If it is determined that the order was the result of a clerical error, the trial court should correct the erroneous order so that the record speaks the truth by entering an appropriate nunc pro tunc order. See Smith, 801 S.W.2d at 633; Rodriguez, 42 S.W.3d at 181.
Accordingly, we abate and remand this matter to the trial court. The trial court shall cause notice to issue and shall hold a hearing on the foregoing matters. We further direct the trial court to issue findings of fact and conclusions of law regarding these issues. The trial court is directed to cause a supplemental clerk's record and a supplemental reporter's record to be prepared regarding these matters on remand, and such records shall be filed with the Clerk of this Court within thirty days from the date of this order.