in Re: Allen Miller ( 2009 )

NO. 12-09-00276-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
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IN RE: ALLEN MILLER,
RELATOR ' ORIGINAL PROCEEDING
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MEMORANDUM OPINION
Allen Roy Miller seeks a writ of prohibition to prevent the trial court from
amending, modifying, or revoking his probation in trial court cause number 05CR16469,
or taking any action to bench warrant him back to Shelby County for further proceedings
in that cause number. He further requests a writ of mandamus directing the trial court to
withdraw any warrants or detainers that have been issued in connection with the State’s
motion to revoke Miller’s probation in cause number 05CR16469.
A writ of prohibition is used to protect the subject matter of an appeal or to
prohibit an unlawful interference with the enforcement of a superior court’s order and
judgments. Sivley v. Sivley, 972 S.W.2d 850, 863-64 (Tex. App.–Tyler 1998, orig.
proceeding) (combined appeal and orig. proceeding). A party seeking a writ of
prohibition must demonstrate that (1) it has no other adequate remedy at law and that (2)
it is clearly entitled to the relief sought. In re State, 180 S.W.3d 423, 425 (Tex.
App.–Tyler 2005, orig. proceeding). That party must also show that the requested writ of
prohibition relates to a pending appeal over which the court of appeals has jurisdiction.
In re Salas, 994 S.W.2d 422, 422 (Tex. App.–Waco 1999, orig. proceeding). In the
instant proceeding, Miller has not shown that the writ of prohibition he requests relates to
a pending appeal over which this court has jurisdiction. Consequently, he has not shown
that he is entitled to a writ of prohibition.
Mandamus relief is authorized in a criminal case only if the relator establishes
that (1) he has no other adequate legal remedy and (2) under the facts and the law, the act
sought to be compelled is purely ministerial. State ex rel. Hill v. Fifth Court of Appeals,
34 S.W.3d 924, 927 (Tex. Crim. App. 2001). Miller alleges, and the record reflects, that
in cause number 05CR16469, the trial court orally pronounced sentence according to the
terms of a plea agreement whereby Miller pleaded guilty to aggravated assault on a
public servant in return for a ten year probated sentence. However, the judgment entered
in the case provides that the trial court deferred further proceedings without entering an
adjudication of guilt and placed Miller on deferred adjudication for ten years. Assuming
there are no other relevant facts, the discrepancy, as it is described by Miller, did not
result from judicial reasoning or determination and therefore is merely a clerical error.
Alvarez v. State, 605 S.W.2d 615, 616 (Tex. Crim. App. 1980). Thus, a judgment nunc
pro tunc is the appropriate remedy to correct the alleged discrepancy. See Ex parte
Madding, 70 S.W.3d 131, 135 n.8 (Tex. Crim. App. 2002). Because this remedy is
adequate, mandamus is not available to correct the alleged discrepancy.
Miller further contends that the alleged discrepancy renders the written judgment
void and therefore it cannot be enforced against him. Consequently, his argument
continues, he is entitled to mandamus requiring the withdrawal of any warrants or
detainers issued in furtherance of the State’s attempt to revoke his probation in the
subject cause number. As stated above, the discrepancy Miller has described is a mere
clerical error and can be corrected by judgment nunc pro tunc. See id. A judgment
containing an irregularity that can be corrected by nunc pro tunc entry is not void.
Hughes v. State, 493 S.W.2d 166, 170 (Tex. Crim. App. 1973). Because the judgment is
not void, it can be enforced, and Miller is not entitled mandamus directing the
withdrawal of any warrants or detainers relating to the revocation of his probation.1
Miller has not shown that he is entitled to a writ of prohibition or a writ of
mandamus. Accordingly, his petition for writ of prohibition and writ of mandamus is
denied.
1
According to Miller, the State acknowledges the discrepancy and has asked the trial court to modify the
“probation paperwork” to reflect the original agreement.
2
BRIAN HOYLE
Justice
Opinion delivered September 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
3