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 2018-08

in Re: Gary Wayne Warner ( 2018 )


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  • Denied and Opinion Filed August 6, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00855-CV
IN RE GARY WAYNE WARNER, Relator
Original Proceeding from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F91-41758-N
MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Stoddart
Relator was convicted of felony aggravated assault in 1991 pursuant to a plea agreement.
A condition of the plea was that there would be no affirmative finding of use of a deadly weapon.
In February 2018, relator filed a motion for judgment nunc pro tunc in which he asked the trial
court to modify the judgment to reflect that he was convicted of misdemeanor assault and not
aggravated assault. On April 12, 2018, the trial court denied the motion for judgment nunc pro
tunc. The trial court determined that the judgment accurately reflected the plea agreement, which
provided for a felony conviction with no affirmative finding of a deadly weapon. In this original
proceeding, relator challenges the denial of the motion for judgment nunc pro tunc.
“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); 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). “[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.).
The appropriate remedy to obtain review of the denial of a nunc pro tunc motion is by a
petition for writ of mandamus. Ex parte Florence,
    319 S.W.3d 695
    , 696 (Tex. Crim. App. 2010);
In re Holland, No. 05-17-00375-CV,
    2016 WL 8814362
    , at *1 (Tex. App.—Dallas Feb. 4, 2016,
orig. proceeding). To be entitled to mandamus relief in a criminal case, the relator must show (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). The second
requirement is satisfied if the relator can show he has a clear right to relief. Id. “A clear right to
relief is shown 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. (citing In re State ex rel. Weeks,
    391 S.W.3d 117
    , 122
(Tex. Crim. App. 2013)). If the relator fails to satisfy either aspect of this two-part test, relief
should be denied. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals,
    236 S.W.3d 207
    ,
210 (Tex. Crim. App. 2007) (orig. proceeding).
Under this record, we conclude relator has not shown a clear right to relief because the
record does not show a clerical error in the judgment. As such, the trial court did not have a
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ministerial duty to grant the motion and modify the judgment. Accordingly, we deny relator’s
petition for writ of mandamus.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
180855F.P05
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