Opinion
NO. 12-12-00013-CR
03-19-2012
In re: DANNY DALE WEISINGER, SR., RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
Relator Danny Dale Weisinger, Sr. seeks a writ of mandamus directing the trial court to vacate its order denying his motion for a judgment nunc pro tunc and either delete the deadly weapon finding from his judgment of conviction or conduct a "full and fair hearing." Alternatively, he requests that this court, on its own authority, reform the judgment so as to make the record "speak the truth." We deny the petition.
BACKGROUND
Relator was convicted of aggravated assault with a deadly weapon and sentenced to imprisonment for twenty years. He appealed pro se, and this court affirmed his conviction. See generally Weisinger v. State, No. 12-03-00274-CR, 2004 WL 3103643 (Tex. App.-Tyler Jan. 12, 2005, pet. ref'd) (mem. op., not designated for publication). Relator's judgment of conviction includes a deadly weapon finding. He filed a motion for a judgment nunc pro tunc informing the trial court that the jury did not make a deadly weapon finding and therefore the inclusion of the finding is a clerical error. The trial court denied the motion. Relator filed a petition for writ of mandamus in this court complaining of the trial court's order. This court denied the petition. See generally In re Weisinger, No. 12-11-00101-CR, 2011 WL 4549409 (Tex. App.-Tyler Sept. 30, 2011, orig. proceeding) (mem. op. on reh'g, not designated for publication). After filing a second motion for a judgment nunc pro tunc, which was also denied, Relator filed this original proceeding.
PREREQUISITES TO MANDAMUS
In a criminal case, mandamus relief is authorized only if the relator establishes that (1) he has no other adequate legal remedy to redress his alleged harm and that (2) what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). The second requirement is satisfied if the relator can show he has "'a clear right to the relief sought'—that is to say, 'when the facts and circumstances dictate but one rational decision' under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles." Id. (quoting Buntion v. Harmon, 827 S.W.2d 945, 947, 948 n.2 (Tex. Crim. App. 1992)). If the relator fails to satisfy either aspect of this two part test, relief should be denied. Id. "Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks." Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding).
DISCUSSION
Relator argues that the jury did not make an affirmative deadly weapon finding and therefore the trial court's entry of a deadly weapon finding in its judgment constitutes an unauthorized modification of the jury's verdict. He argues further that the trial court had a ministerial duty to correct the judgment, which it violated by denying his motion for judgment nunc pro tunc. We disagree.
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. Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980). A nunc pro tunc order may correct clerical errors in a judgment, but not errors that are a product of judicial reasoning or determination. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994); Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988) (en banc). Whether an error is clerical is a question of law. Alvarez, 605 S.W.2d at 617.
An affirmative finding concerning a deadly weapon is the trier of fact's express determination that a deadly weapon was actually used or exhibited during the commission of the offense. LaFleur v. State, 106 S.W.3d 91, 94 (Tex. Crim. App. 2003). As pertinent here, the trial court may make an affirmative finding of a deadly weapon when the indictment includes an allegation of a "deadly weapon," and the verdict states the defendant is "guilty as charged in the indictment." Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985).
Here, the grand jury alleged in the indictment that Appellant "intentionally, knowingly or recklessly cause[d] bodily injury" and that he "did then and there use or exhibit a deadly weapon, to-wit: [an] unknown object during the commission of said assault." The jury returned its verdict on the form provided, stating that "[w]e the jury, find the defendant, DANNY DALE WEISINGER A/K/A DANNIE WEISEINGER, "Guilty" of Aggravated Assault as charged in the Indictment."Thus, under Polk, the jury expressly determined that Appellant used or exhibited a deadly weapon during the commission of the assault. See Polk, 693 S.W.2d at 396. Because the jury made this determination, the trial court was required to enter an affirmative deadly weapon finding in the judgment of the court. See TEX. CODE CRIM. PROC. ANN. § 42.12 § 3(g)(a)(2) (West Supp. 2011).
An appellate court may take judicial notice of its own records in the same or related proceedings involving the same or nearly the same parties. Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987). Accordingly, we have taken judicial notice of our records in appellate cause number 12-03-00274-CR, styled Weisinger v. State, in which Relator appealed his conviction for aggravated assault.
In summary, the trial court's entry of the deadly weapon finding in its judgment was not a modification of the jury's verdict. Therefore, the clerical error Relator complains of did not occur, and the trial court had no ministerial duty to delete the deadly weapon finding from the judgment.
DISPOSITION
Relator has not shown that the trial court violated a ministerial duty in denying his motion for judgment nunc pro tunc. Therefore, he has not shown that he is entitled to mandamus relief. Accordingly, we deny his petition for writ of mandamus as well as his request for alternative relief.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
NO. 12-12-00013-CR
DANNY DALE WEISINGER, SR., Relator
v.
HON. PAM FLETCHER, Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by DANNY DALE WEISINGER, SR., who is the relator in Cause No. 03-CR-035, pending on the docket of the 349th Judicial District Court of Houston County, Texas. Said petition for writ of mandamus having been filed herein on January 9, 2012, and the same having been duly considered, because it is the opinion of this Court that the 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 DENIED.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.