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In re Malone

Court of Appeals Fifth District of Texas at Dallas
Dec 2, 2014
No. 05-14-01458-CV (Tex. App. Dec. 2, 2014)

Summary

concluding Court lacked jurisdiction over complaint that trial court had failed to specifically enforce his plea agreement

Summary of this case from In re Benavides

Opinion

No. 05-14-01458-CV

12-02-2014

IN RE AARON MALONE, Relator


Original Proceeding from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F08-39160-I

MEMORANDUM OPINION

Before Justices Bridges, Fillmore, and Evans
Opinion by Justice Bridges

Relator filed this petition for writ of mandamus requesting that the Court order the trial court to delete the deadly weapons finding in the judgment of conviction in his case and that the Court further order the trial court to compel the State to amend the original indictment in his case to conform to his understanding of the plea bargain. We deny the petition in part and dismiss in part.

I. PROCEDURAL AND FACTUAL BACKGROUND

This petition for writ of mandamus arises from relator's conviction for aggravated assault. Relator was initially charged with aggravated sexual assault, but agreed to accept the State's offer of seven years' deferred adjudication on a reduced charge of aggravated assault. Malone v. State, No. 05-11-00157-CR, 2013 WL 427354, at *1 (Tex. App.—Dallas Feb. 5, 2013, no pet.) (not designated for publication). Two months later, the State filed a motion to adjudicate guilt alleging that appellant violated the conditions of his community supervision. Id. Following a hearing, the trial court found that appellant violated the conditions of community supervision, adjudicated guilt, and sentenced appellant to sixty years' imprisonment. Id. Relator appealed contending the State failed to prove by a preponderance of the evidence that he violated the conditions of community supervision. Id. at 3. He further argued the trial court erred in admitting two audio recordings of jail telephone calls. We affirmed the trial court's judgment. Id.

II. MOTION FOR JUDGMENT NUNC PRO TUNC

Relator now contends that the trial court erroneously included a deadly weapon finding, to which he had not agreed, in its judgment of conviction. Relator filed a pro se motion in the trial court for a judgment nunc pro tunc seeking to delete the deadly weapon finding. Malone v. State, No. 05-13-01234-CR, 2013 WL 5299279, at *1 (Tex. App.—Dallas Sept. 18, 2013, pet. ref'd) (mem. op.). The trial court denied relator's motion by written order on August 15, 2013, and relator appealed. Id. Without addressing whether relator's motion for judgment nunc pro tunc addressed a subject proper for a judgment nunc pro tunc, we dismissed the appeal for lack of jurisdiction because an order denying a motion for judgment nunc pro tunc is not an appealable order and must be challenged by mandamus. Id. Relator then filed this petition for writ of mandamus.

The Texas Rules of Appellate Procedure include specific requirements concerning the form and contents of a petition for writ of mandamus and relator's petition does not comply with those requirements. TEX. R. APP. P. 52.3. Relator does not certify his petition as required by rule 52.3(j) and he has not provided a mandamus record citing instead to the record from his prior appeal. Although the deficiencies in relator's petition would in themselves constitute sufficient reason to deny mandamus relief, in the interest of judicial economy, we address relator's contention the trial court improperly performed a ministerial task in failing to grant his motion for judgment nunc pro tunc and in failing to compel the State to amend the indictment.

In a criminal case, to be entitled to mandamus relief, the relator must show two things: (1) that he has no adequate remedy at law and (2) that what he seeks to compel is a ministerial act. In re Bonilla, 424 S.W.3d 528, 533 (Tex. Crim. App. 2014) (orig. proceeding). Denials of motions for judgment nunc pro tunc may be challenged by mandamus. See State v. Ross, 953 S.W.2d 748, 751-52 (Tex. Crim. App. 1997) (suggesting mandamus as way to seek relief from order denying motion for judgment nunc pro tunc). In this case the trial court properly denied the motion for judgment nunc pro tunc because the act relator requested the trial court to perform was not a ministerial act, but rather required the exercise of judicial discretion.

Nunc pro tunc orders are for correction of clerical errors. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994). "A clerical error is one which does not result from judicial reasoning or determination." Ex Parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). "[A] nunc pro tunc order can only be used to make corrections to ensure that the judgment conforms with what was already determined and not what should have been determined." State v. Garza, 442 S.W.3d 585, 588 (Tex. App.—San Antonio 2014, no pet.). A judgment nunc pro tunc cannot be rendered absent proof that the proposed judgment was actually rendered or pronounced in the purportedly correct fashion prior to the rendition of the erroneous judgment. Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim. App. 1984). Where the trier of fact has made a deadly weapon finding and the trial court erroneously fails to include the finding in the judgment, mandamus is an appropriate remedy because by law the trial judge is under a mandatory duty to include the finding in its judgment once the trier of fact has made such a determination. Poe, 751 S.W.2d at 876. Such a correction is therefore clerical in nature. Id. Because the State may not appeal the omission of a deadly weapons finding, the mandamus remedy offered in such a case affords the State a means of relief when the trial court "fails to do something it is required to do" by entering the mandatory affirmative finding in the judgment of conviction. Ross, 953 S.W.2d at 751.

The same reasoning does not apply in this case. Here the relator does not contend that the written judgment incorrectly reflects the judgment of the factfinder on the deadly weapon question. Rather he contends that the written judgment is incorrect either because it does not reflect his understanding that the plea agreement he had entered into would not include a deadly weapon finding or because the trial court could not properly make a deadly weapon finding under the facts of his case. The judgment cannot be "corrected" as he proposes by means of a judgment nunc pro tunc because the matter of which he complains requires judicial judgment. Such complaints are collateral attacks on the judgment rather than complaints regarding a clerical error. Accordingly, the trial court properly denied the motion for judgment nunc pro tunc. We deny the petition for writ of mandamus to the extent it contends the trial court failed to properly perform a ministerial task by denying relator's motion for judgment nunc pro tunc.

III. MOTION TO ENFORCE THE PLEA AGREEMENT

Relator further argues that the trial court must specifically enforce the plea agreement and require the State to amend the indictment to delete the deadly weapon allegation. A petition for writ of mandamus after conviction premised on failure to specifically enforce a plea agreement is an improper collateral attack on the judgment. See In re Jackson, No. 05-14-00988-CV, 2014 WL 3962822, at *1 (Tex. App.—Dallas Aug. 14, 2014, orig. proceeding) (concluding Court lacked jurisdiction over complaint that trial court had failed to specifically enforce his plea agreement). Any attempt to specifically enforce a plea agreement must be raised either before the defendant is convicted, by direct appeal or by petition for writ of habeas corpus. See id. The only proper means of collaterally attacking a final felony conviction is via petition for writ of habeas corpus under article 11.07 of the code of criminal procedure. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5 (West Supp. 2013) ("After conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner."); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (in granting writ of mandamus to vacate judgment of conviction, court of appeals usurped the exclusive authority of court of criminal appeals to grant post-conviction relief). We dismiss the petition for writ of mandamus to the extent it complains of the failure of the trial court to compel the State to amend the indictment to reflect his understanding of the plea agreement.

IV. CONCLUSION

For the foregoing reasons, we deny the petition in part and dismiss the petition in part. 141458F.P05

/David L. Bridges/

DAVID L. BRIDGES

JUSTICE


Summaries of

In re Malone

Court of Appeals Fifth District of Texas at Dallas
Dec 2, 2014
No. 05-14-01458-CV (Tex. App. Dec. 2, 2014)

concluding Court lacked jurisdiction over complaint that trial court had failed to specifically enforce his plea agreement

Summary of this case from In re Benavides

characterizing mandamus petition in similar case as impermissible "collateral attack[] on the judgment rather than complaint[] regarding a clerical error"

Summary of this case from In re Benavides
Case details for

In re Malone

Case Details

Full title:IN RE AARON MALONE, Relator

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Dec 2, 2014

Citations

No. 05-14-01458-CV (Tex. App. Dec. 2, 2014)

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