Opinion
05-20-00410-CR
06-22-2022
MARK JARED KNOWLES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-83651-2019
Before Justices Molberg, Nowell, and Goldstein
ORDER
ERIN NOWELL PRESIDING JUSTICE
Appellant was charged with possession of methamphetamine. A jury found him guilty and assessed punishment at six years in prison. The trial court orally pronounced appellant's conviction and sentence on March 12, 2020. On the same day, appellant filed his notice of appeal. The trial court reduced its judgment to writing on March 26, 2020, using the standard OCA "Judgment of Conviction by Jury" form. On April 3, 2020, the trial court entered a nunc pro tunc judgment, using another standard OCA form titled "Judgment of Conviction by Court- Waiver of Jury Trial Nunc Pro Tunc."
The purpose of a nunc pro tunc judgment is to correct clerical errors that appear of record. See Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007). A nunc pro tunc judgment supersedes the prior judgment, which ceases to have any legal function. See Blanton v. State, 369 S.W.3d 894, 897 (Tex. Crim. App. 2012) (trial court's second nunc pro tunc judgment superseded the first).
Article 42.01 of the Code of Criminal Procedure governs what information must be included in written judgments. See Tex. Code Crim. Proc. Ann. art. 42.01. Article 42.01 also requires, for felony cases, that trial courts use judgment forms promulgated by the Office of Court Administration (OCA). See id. § 4. The OCA has promulgated different judgment forms that vary in content based, for example, on whether the defendant was acquitted or convicted and whether the case was tried to a jury or the court.
Blank copies of these forms are available at https://www.txcourts.gov/rules-forms/forms/.
Here, the original judgment was entered using the correct form-i.e., the form titled "Judgment of Conviction by Jury"-as the record reflects that the case was tried to a jury and the defendant was convicted of the charged offense. The original judgment nevertheless contained two errors: (1) that Hunter Biederman represented appellant, and (2) that appellant's right to appeal was waived and no permission to appeal was granted. The judgment nunc pro tunc corrected the first error, retained the second, and added a host of new errors.
Biederman represents appellant on appeal. Appellant's trial counsel was Chris Fredericks. Fredericks withdrew on March 12, 2020, the same day the trial court orally pronounced its judgment. Biederman was appointed as appellant's "appeal attorney" on March 23, 2020. Thus, at the time the judgment was entered, Biederman was the only attorney representing appellant. The Code of Criminal Procedure requires that the judgment name "the attorney for the defendant, or, where a defendant is not represented by counsel, that the defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel." See Tex. Code Crim. Proc. Ann. art. 42.01, § 1(2). The statute does not specify whether the attorney so named should be the one who represented the defendant in the proceedings that gave rise to the judgment or the one who represented the defendant at the time the judgment was entered. By its language, however, the statute suggests that the purpose of including the name is related to the defendant's Sixth Amendment right to counsel. See, e.g., Ex parte Stanford, 571 S.W.2d 28 (Tex. Crim. App. 1978) (concluding that the defendant's right to counsel was violated where the judgment stated that the defendant was represented but the space for the attorney's name was blank, no other document in the record contained the attorney's name, and the judge and prosecutor had since died); see also Blanton v. State, No. 12-09-00448-CR, 2010 WL 4274774, at *2 (Tex. App.-Tyler Oct. 29, 2010, no pet.) (mem. op., not designated for publication) (granting the appellant's request to modify the judgment to reflect the name of his trial counsel rather than his appellate counsel).
The record contains the trial court's Certification of Defendant's Right of Appeal, in which the trial court certified that "this criminal case is not a plea-bargain case, and the defendant has the right of appeal." And the record supports the trial court's certification that appellant had a right to appeal. See Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005) (citing Tex.R.App.P. 25.2).
Many of the new errors were the result of the trial court using the wrong judgment form. For example, the form titled "Judgment of Conviction by Court- Waiver of Jury Trial" includes, as its name suggests, language indicating that appellant "waived the right of trial by jury" and, unlike the original judgment, does not include language indicating that a jury "was selected, impaneled, and sworn," "heard evidence," and "delivered its verdict." But the nunc pro tunc judgment also included an error in a fill-in field. Specifically, in the space provided for appellant's plea, the nunc pro tunc judgment states that he pleaded guilty.
Neither party addresses the issuance of the nunc pro tunc judgment or the errors contained therein. However, the Texas Rules of Appellate Procedure require that we not affirm or reverse a judgment or dismiss an appeal if (1) the trial court's erroneous action or failure to act prevents the proper presentation of a case to the court of appeals and (2) the court can correct its action or failure to act. See Tex. R. App. P. 44.4(a); Sanchez v. State, Nos. 05-16-01020-CR, 05-16-01021-CR, 05-16-01022-CR, & 05-16-01023-CR, 2017 WL 3276008, at *2 (Tex. App.-- Dallas July 31, 2017, no pet.) (mem. op., not designated for publication) (issuing order abating case and directing trial court to sign corrected judgment of conviction that contained all of the statutorily mandated information); Greenwood v. State, No. 05-16-00644-CR, 2017 WL 2590740, at *3 (Tex. App.--Dallas June 14, 2017, no pet.) (mem. op., not designated for publication) (issuing order abating this case and directing the trial court to sign corrected judgment of conviction that contained all of the statutorily mandated information); Felder v. State, No. 03-13- 00706-CR & 03-13-00707-CR, 2014 WL 3560426, at *1 (Tex. App.-Austin July 18, 2014, no pet.) (per curiam) (mem. op., not designated for publication) (abating appeals and remanding cases to trial court where the wrong judgment forms were used and directing trial court to sign corrected judgments of conviction that contain all of the statutorily mandated information).
The record is silent as to the need or basis for the subsequent issuance of the nunc pro tunc judgment.
Accordingly, we ORDER (1) the Honorable Andrea Thompson, Presiding Judge, 416th Judicial District Court, to sign a corrected judgment that contains all of the statutorily mandated information and reflects the trial court's oral pronouncements using a form normally used to memorialize a judgment rendered under the circumstances of this case; and (2) Lynne Finley, Collin County District Clerk to file a supplemental clerk's record with the corrected judgment WITHIN TEN DAYS of the date of this order.
We DIRECT the Clerk of this Court to send copies of this order to the Honorable Andrea Thompson, Presiding Judge, 416th Judicial District Court; to Lynne Finley, Collin County District Clerk; and to counsel for all parties.
This appeal is ABATED to allow the trial court to comply with this order. The appeal shall be reinstated when the supplemental clerk's record is received or when the Court deems it appropriate to do so.