in Re: Johnica Lynn Pryor ( 2014 )

NO. 12-14-00048-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
JOHNICA LYNN PRYOR, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
Relator, Johnica Lynn Pryor, seeks a writ of mandamus directing the trial court to require
its clerk to comply with the court‟s October 4, 2012 order granting a judgment nunc pro tunc.
Relator also implicitly argues that mandamus should issue directing the trial court to vacate the
sentence portion of its judgment of conviction because the jury verdict form on punishment
specified an incorrect trial court number. We deny the petition.
BACKGROUND
Relator was convicted of aggravated kidnapping for which he was sentenced to
imprisonment for thirty-eight years. The trial court signed its judgment on August 25, 2004, and
this court affirmed Relator‟s conviction. See generally Pryor v. State, No. 12-04-00301-CR,
2006 WL 2106791 (Tex. App.–Tyler July 31, 2006, pet. ref‟d) (mem. op., not designated for
publication). The trial court‟s judgment stated that Relator was convicted of “AGGRAVATED
KIDNAPPING (22.04 T.P.C.).” Approximately eight years later, the State filed, and the trial
court granted, a motion for judgment nunc pro tunc. As requested by the State in its motion, the
trial court ordered that “[t]he Judgment should read: „Aggravated Kidnapping TPC 20.04.‟”
PREREQUISITES TO MANDAMUS
The court of criminal appeals has characterized mandamus as a “drastic remedy,” and
cautioned that it is to be invoked only in “extraordinary situations.” State ex rel. Sutton v. Bage,
822 S.W.2d 55, 57 (Tex. Crim. App.1992) (orig. proceeding). Consequently, mandamus relief is
available in a criminal case only when a relator establishes that he has no adequate remedy at law
to redress his alleged harm, and 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
at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
JUDGMENT NUNC PRO TUNC
In his first issue, Relator contends that the trial court clerk has not complied with the trial
court‟s order granting the judgment nunc pro tunc and mandamus should issue against the trial
court directing the court to require her compliance. Relator asserts that the trial court has
declined to require compliance even after being made aware of the trial court clerk‟s failure to
perform her ministerial duty. Relator cites no authority supporting his conclusion that
mandamus relief is available against the trial court under the facts as Relator has alleged them
here. Nevertheless, for purposes of analysis only, we will assume Relator‟s request is a proper
one and address the merits of his petition.
The purpose of a nunc pro tunc judgment is to provide a method for trial courts to correct
the record when there is a discrepancy between the judgment as pronounced in court and the
judgment reflected in the record. Blanton v. State, 369 S.W.3d 894, 897-98 (Tex. Crim. App.
2012). Thus, errors in the entry of judgment and sentence can be corrected by a nunc pro tunc
entry made in the trial court so that the court‟s records correctly reflect the judgment required
under the law and actually made by the trial court. Collins v. State, 240 S.W.3d 925, 928 (Tex.
Crim. App. 2007); Ex parte Hatfield, 238 S.W.2d 788, 791 (Tex. Crim. App. 1951). Only
clerical errors can be corrected by a judgment nunc pro tunc. Collins, 240 S.W.3d at 928.
To support his request for relief, Relator has provided a certified copy of the 2004
judgment of conviction. He points out that the copy was certified more than six months after the
trial court granted the judgment nunc pro tunc, but the penal code section has not been changed.
We interpret this as an argument that the trial court clerk was required to obtain a new judgment
which included the correct penal code section.
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To be effectual, a judgment or order in a criminal case must be entered in the trial court‟s
minutes. Burns v. State, 814 S.W.2d 768, 771 (Tex. App.–Houston [14th Dist.] 1991), rev’d on
other grounds, 861 S.W.2d 878 (Tex. 1992). The making of this entry is a purely ministerial act
by the trial court clerk. See Barber v. State, 374 S.W.2d 246, 247 (Tex. Crim. App. 1963) (op.
on reh‟g). In this case, the trial court ordered that a judgment nunc pro tunc be “entered”
changing the penal code section to “TPC 20.04.” Relator does not contend that the trial court
clerk failed to make the entry. And we are not aware of any procedural rule or other authority
requiring a new judgment when a judgment nunc pro tunc is granted. Therefore, Relator has not
shown any noncompliance by the trial court clerk. Consequently, he has not shown any further
action by the trial court was necessary to make the judgment nunc pro tunc effective.
ERROR IN VERDICT FORM
In his second issue, Relator calls our attention to the jury verdict form for the punishment
phase of his trial. He complains that the trial court case number was 4036, but the verdict form
shows it to be 3924.
Relator first states that a judgment of conviction must include “the title and number of the
case.” See TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1(1) (West Supp. 2014). Relying on the
placement of these two requirements in the same subsection, he contends that the title and case
number are “intertwined.” Therefore, his argument continues, “[a]s the Verdict of the Jury
stands, [the jury verdict form] being an integral portion of the judgment, [the judgment] does not
comport to Article 42.01 § 1.1 of the Texas Code of Criminal Procedure” because of the
incorrect case number. As a result of this error, he implicitly urges that the trial court did not
have jurisdiction over the punishment phase of the trial and therefore the sentencing portion of
its judgment is void.
We first note that, as required by Article 42.01, the judgment in this case correctly states
the trial court case number. Moreover, no Texas appellate court has held that an incorrect case
number on a jury‟s verdict form is a jurisdictional defect. In fact, the cases addressing error
preservation illustrate that an error in the case number on the jury verdict form is not
jurisdictional. Compare State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009) (holding
that trial court jurisdiction over case is absolute systemic requirement to which ordinary
preservation rules are inapplicable) with Haagensen v. State, 346 S.W.3d 758, 767 (Tex. App.–
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Texarkana 2011, no pet.) (holding that incorrect case number in verdict form in not absolute
error and complaint can be forfeited by failure to object). Consequently, we cannot conclude
that the sentence portion of the trial court‟s judgment is void.
CONCLUSION
Based on the foregoing analysis, we hold that Relator has not shown an abuse of
discretion by the trial court. Consequently, he has not shown that he is entitled to mandamus
relief. Accordingly, we deny Relator‟s petition for writ of mandamus. All pending motions are
dismissed as moot.
SAM GRIFFITH
Justice
Opinion delivered October 22, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 22, 2014
NO. 12-14-00048-CR
JOHNICA LYNN PRYOR,
Relator
v.
HON. EDDIE NORTHCUTT,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed
by JOHNICA LYNN PRYOR, who is the defendant in Cause No. 4036, pending on the docket
of the 8th Judicial District Court of Rains County, Texas. Said petition for writ of mandamus
having been filed herein on February 12, 2014, and the same having been duly considered,
because it is the opinion of this Court that a 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.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.