Jose Guadalupe Carmona v. State ( 2020 )

Affirmed as Modified and Majority Opinion and Concurring and Dissenting
Opinion filed October 27, 2020.
In the
Fourteenth Court of Appeals
NO. 14-19-00268-CR
JOSE GUADALUPE CARMONA, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1532290
CONCURRING AND DISSENTING OPINION
This case, which touches on a complex array of topics including the manner
in which criminal judgments are handled in Texas trial courts, the scope of the
State’s right to appeal those judgments, and what the defendant and State can (and
should) do when they disagree with some aspect of the trial court’s judgment,
ultimately raises significant and troubling questions concerning the appellate
court’s authority to use the Texas Rules of Appellate Procedure to “correct errors”
in the trial court’s judgment.
First, does Texas Rule of Appellate Procedure 43.2(b), which allows this
court to “modify the trial court’s judgment and affirm it as modified,” permit this
court to address an unpreserved and unbriefed issue of legal sufficiency, and
“un-find” and delete a finding of the trial court based on its inherent powers to
correct clerical errors?
Second, does Texas Rule of Appellate Procedure 43.6, which provides for
“Other Orders,” create a seventh type of judgment that is not included in the list of
six “Types of Judgments” in Rule 43.2? If there is a seventh type of judgment that
allows this court to render any appropriate judgment that the law and the nature of
the case require, then why did the Court of Criminal Appeals bother to identify six
specific types of judgments? The law requires this court to presume that all parts of
the Texas Rules of Appellate Procedure are intended to be effective and that none
is rendered meaningless, yet the court uses Rule 43.6 as a tool to render a novel
appellate judgment that “fixes” the trial-court judgment for the State when the
State has not shown reversible error on what appears to be a legal-sufficiency
challenge.
With minimal briefing that neither addresses whether error preservation is
required, nor presents a legal-sufficiency issue, the State asks this court to sustain
its cross-point and delete a finding by the trial judge. The State does not ask this
court to reverse the trial court’s judgment in part regarding the finding based on
legal sufficiency and render the judgment that the trial court should have rendered
on the finding. Tex. R. App. P. 43.2(d). Instead, the State asks this court to use
Rule 43.2(b) (“The court of appeals may . . . modify the trial court’s judgment and
affirm it as modified . . . .”). Does Rule 43.2(b) allow a path around traditional
legal-sufficiency review to achieve the same result of altering the trial court’s
judgment “to speak the truth” and delete the finding? While the court ultimately
2
relies on Rule 43.2, it is obviously squeamish about that path, and sua sponte turns
to Rule 43.6 (“The court of appeals may make any other appropriate order that the
law and the nature of the case require.”) to further justify deleting the finding. Is
Rule 43.6 the door to a seventh type of judgment?
Because (1) Rule 43.2(b) is not a substitute for determining legal sufficiency
and (2) the plain language of Rule 43.6 means what it says,1 i.e., that an appellate
court may make an order other than the six permissible types of judgments (such
as an order abating the appeal and remanding the case to the trial court for the
limited purpose of conducting a Faretta hearing),2 I respectfully dissent from the
portion of this court’s judgment that deletes the finding; I otherwise concur in the
remainder of this court’s judgment.
I. ANALYSIS
A. The State’s cross-point
The State brings a cross-point and cites to the following language in the trial
court’s judgment:
APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.
THE COURT FINDS THAT AT THE TIME OF THE OFFENSE,
DEFENDANT WAS YOUNGER THAN NINETEEN (19) YEARS
OF AGE AND THE VICTIM WAS AT LEAST THIRTEEN (13)
YEARS OF AGE. THE COURT FURTHER FINDS THAT THE
1
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
2
Faretta v. California, 422 U.S. 806 (1975). There are other examples of proceedings the
court of appeals could order, and the scope of the Rule 43.6 order is not limited to an ancillary
proceeding.
Perhaps it is necessary to state what is obvious: All judgments are orders, but not all
orders are judgments. It is therefore evident from the heading “Types of Judgments” followed by
the heading “Other Orders” that in a Venn diagram these two sets do not intersect. This is not an
absurd result, so the plain meaning of Rule 43.2 and Rule 43.6 should control under Boykin, 818
S.W.2d at 785.
3
CONVICTION IS BASED SOLELY ON THE AGES OF
DEFENDANT AND THE VICTIM OR INTENDED VICTIM AT
THE TIME OF THE OFFENSE. TEX. CODE CRIM. PROC., ART.
42.017.3
The State’s cross-point challenges both (1) the holding that the appeal has been
waived and (2) the trial judge’s finding for purposes of Code of Criminal
Procedure articles 42.017 and 62.301. See Tex. Code Crim. Proc. Ann. arts.
42.0174, 62.3015 (affirmative fact findings required for exemption from registration
3
Here is the State’s three-paragraph argument after stating its cross-point:
(CR – 181) See Tex. Code Crim. Proc. art. 42.017 (in the trial of an offense under
Texas Penal Code Section 21.11, the judge shall make, and enter in the judgment,
an affirmative finding of fact if the judge determines that: (1) at the time of the
offense, the defendant was not more than four years older than the victim or
intended victim and the victim or intended victim was at least 15 years of age; and
(2) the conviction is based solely on the ages of the defendant and the victim or
intended victim at the time of the offense); Tex. Code Crim. Proc. art. 62.301
(person required to register under Chapter 62 may petition for an exemption from
sex-offender registration if the person is required to register only as the result of a
single reportable conviction and the court has entered in the judgment an
affirmative finding described by Article 42.017).
These findings are contrary to the record. The certification states that
appellant’s is not a plea-bargain case, and he has the right of appeal. (CR – 185)
The evidence at trial established that the complainant was born in 2004, she
would have been seven years old in 2011, and she was around ten years old when
she disclosed appellant’s abuse in 2014. (RRIII – 143; RRIV – 110–11; RRV –
82) Appellant was born in 1975 and he would have been in his thirties between
2011 and 2014. (RRV – 17–18) Garza v. State, No. 07-15-00444-CV, 2016 WL
7634468, at *2 (Tex. App.—Amarillo Dec. 28, 2016, no pet.) (mem. op.)
(victim’s age precluded defendant from being eligible for sex-offender-
registration exemption under article 42.017).
This Court may modify a trial court’s judgment and affirm it as modified.
See Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Tex. R. App.
P. 43.2(b). Therefore, this Court should modify the judgment to delete the
abovementioned special findings.
The State does not argue that Texas Rule of Appellate Procedure 43.6 applies to this court’s
judgment.
4
Code of Criminal Procedure article 42.017 states:
FINDING REGARDING AGE-BASED OFFENSE. In the trial of an offense
4
for certain young adult sex offenders). The State requests that this court delete
these “findings” for being “contrary to the record,” and this court sustains the
cross-point.
B. Asberry/French “speak the truth” modification
Our authority to correct clerical errors in the judgment (a judgment nunc pro
tunc) without preservation of error in the trial court as normally required by Texas
Rule of Appellate Procedure 33.1(a) or presentation of error by an issue on appeal
by Rule 38.1(f) derives from our discretion to modify the judgment to “make the
record speak the truth.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992) (adopting reasoning of Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—
Dallas 1991, pet. ref’d) (en banc) (Onion, J., retired presiding judge of Court of
under Section 21.11 or 22.011, Penal Code, the judge shall make an affirmative
finding of fact and enter the affirmative finding in the judgment in the case if the
judge determines that:
(1) at the time of the offense, the defendant was not more than four
years older than the victim or intended victim and the victim or intended victim
was at least 15 years of age; and
(2) the conviction is based solely on the ages of the defendant and
the victim or intended victim at the time of the offense.
5
Code of Criminal Procedure article 62.301 states in part:
EXEMPTION FROM REGISTRATION FOR CERTAIN YOUNG ADULT SEX
OFFENDERS. (a) If eligible under Subsection (b) or (c), a person required to
register under this chapter may petition the court having jurisdiction over the case
for an order exempting the person from registration under this chapter at any time
on or after the date of the person’s sentencing or the date the person is placed on
deferred adjudication community supervision, as applicable.
(b) A person is eligible to petition the court as described by Subsection (a)
if:
(1) the person is required to register only as a result of a single
reportable conviction or adjudication, other than an adjudication of delinquent
conduct; and
(2) the court has entered in the appropriate judgment or has filed
with the appropriate papers a statement of an affirmative finding described by
Article 42.017 or 42A.105(c).
5
Criminal Appeals, sitting by designation and writing en banc court’s opinion). In a
criminal case, Rule 43.2(b) (court of appeals may “modify the trial court’s
judgment and affirm it as modified”) and its predecessors function in part as a
means for the appellate court to render judgment nunc pro tunc when the written
judgment does not reflect what occurred in open court at trial.6
In Asberry, the jury found the defendant guilty of murder and that the
defendant had used or exhibited a deadly weapon during the commission of the
offense. In orally imposing sentence the trial court included the affirmative
deadly-weapon finding. The judgment, however, contained the entry “no findings”
as to “Finding On Use of Deadly Weapon.” 813 S.W.2d at 529. The State did not
object at trial.
Because the Court of Criminal Appeals adopted the reasoning of the opinion
of Presiding Judge Onion, who was sitting by designation with the Fifth Court of
Appeals, the opinion is significant enough to quote at length:
This court has the power to correct and reform the judgment of
the court below to make the record speak the truth when it has the
necessary data and information to do so, or make any appropriate
order as the law and the nature of the case may require. See Tex. R.
App. P. 80(b) and (c). Where a judgment and sentence improperly
reflects the findings of the jury, the proper remedy is the reformation
of the judgment. Aguirre v. State, 732 S.W.2d 320, 327 (Tex. Crim.
App. [Panel Op.] 1982). Courts of appeals have the power to reform
6
It is hard to imagine Texas Rule of Appellate Procedure 43.2(b) ever being used in a
civil appeal as anything other than a polite way to correct minor reversible error in the trial
court’s judgment; accordingly, in a civil appeal modifying the trial court’s judgment and
affirming it as modified is identical to a Rule 43.2(c) judgment reversing the trial court’s
judgment in part and rendering the judgment that the trial court should have rendered, except
than the former is more diplomatic than the latter. This difference in practice is in large part
attributable to Texas Rules of Civil Procedure 305 and 306a. In his concurrence in Collier v.
State, Judge Keasler noted that in criminal appeals it cannot be right that subsections (b) and (c)
overlap in full. 999 S.W.2d 779, 785 (Tex. Crim. App. 1999) (Keasler, J., concurring) (Collier
was overruled by Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012)).
6
incorrect judgments. Harris v. State, 670 S.W.2d 284, 285 (Tex.
App.—Houston [1st Dist.] 1983, no pet.). Appellate courts have the
power to reform whatever the trial court could have corrected by a
judgment nunc pro tunc where the evidence necessary to correct the
judgment appears in the record. Rivera v. State, 716 S.W.2d 68, 71
(Tex. App.—Dallas 1986, pet. ref’d). And “there is authority that
there is a mandatory duty to do this.” Waters v. State, 137 Tex. Crim.
41, 127 S.W.2d 910, 910 (Tex. Crim. App. 1939).
The authority of an appellate court to reform incorrect
judgments is not dependent upon the request of any party, nor does it
turn on the question of whether a party has or has not objected in the
trial court. Cf. Tex. R. App. P. 52(a); Creeks v. State, 773 S.W.2d 334
(Tex. App.—Dallas 1989, pet. ref’d). The appellate court may act sua
sponte and may have the duty to do so. Appellate courts have
frequently reformed judgments to correct improper recitations or
omissions relating to punishment. See, e.g., Banks v. State, 708
S.W.2d 460, 462 (Tex. Crim. App. 1986) (cumulated sentences);
Tamez v. State, 620 S.W.2d 586, 590 (Tex. Crim. App. [Panel Op.]
1981) (reinstated fine); Harris v. State, 565 S.W.2d 66, 70 (Tex. Crim.
App. 1978) (reinstated punishment of fifteen years assessed by jury
rather than ten years reflected in original judgment); Garza v. State,
705 S.W.2d 818, 820 (Tex. App.—San Antonio 1986, no pet.)
(inserted habitual offender findings); Norman v. State, 642 S.W.2d
251, 253 (Tex. App.—Houston [14th Dist.] 1982, no pet.) (reformed
fine from $1,000 to $10,000).
More specifically, judgments have been reformed to include a
jury’s affirmative finding of the use of a deadly weapon. Herring v.
State, 752 S.W.2d 169, 175 (Tex. App.—Houston [1st Dist.] 1988),
remanded on other grounds, 758 S.W.2d 283 (Tex. Crim. App. 1988);
Rische v. State, 746 S.W.2d 287, 292 (Tex. App.—Houston [1st Dist.]
1988), remanded on other grounds, 755 S.W.2d 477 (Tex. Crim. App.
1988), on remand, 757 S.W.2d 518 (Tex. App.—Houston [1st Dist.]
1988, pet. denied); Johnson v. State, 712 S.W.2d 566, 567 (Tex.
App.—Houston [1st Dist.] 1986, no pet.); Sorenson v. State, 709
S.W.2d 321, 323 (Tex. App.—Texarkana 1986, no pet.). The failure
of the trial court to make the necessary entry as to an affirmative
finding is not an error of judicial reasoning “but rather an error of a
clerical nature.” Poe, 751 S.W.2d at 876; Clark v. State, 754 S.W.2d
499, 500–01 (Tex. App.—Fort Worth 1988, no pet.); Curry v. State,
7
720 S.W.2d 261, 263 (Tex. App.—Austin 1986, pet. ref’d); Johnson,
712 S.W.2d at 567.
Further, where an affirmative finding has been improperly
entered in the judgment, appellate courts may reform the judgment by
deleting the finding. See, e.g., Easterling v. State, 710 S.W.2d 569,
582 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 848, 107 S. Ct.
170, 93 L. Ed. 2d 108; Travelstead v. State, 693 S.W.2d 400, 402
(Tex. Crim. App. 1985); Perez v. State, 704 S.W.2d 499, 501 (Tex.
App.—Corpus Christi 1986, no pet.).
In light of the evidence available to this court, and the authority
invested in it, we reform the judgment to speak the truth. We are
aware that Creeks has seemingly been decided to the contrary. Creeks
involved an Anders-Gainous brief concluding that the appeal was
wholly frivolous and without merit. See Anders v. California, 386
U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Gainous v. State,
436 S.W.2d 137 (Tex. Crim. App. 1969). A panel of this court agreed.
The State in its brief labeled a request as a “counterpoint” seeking to
reform the judgment to include therein an affirmative finding by the
jury that the defendant had used a deadly weapon during the
commission of the offense. This was a regrettable choice of
terminology. The State obviously sought a correction of what it
deemed a clerical error and sought the appellate court’s action on its
own motion to reform the judgment to make it speak the truth. See
Tex. R. App. P. 80(b) and (c). The panel opinion on original
submission in Creeks viewed the insertion of “N/A” in the appropriate
block on the pre-printed judgment form relating to “Findings on use
of deadly weapon” not as a clerical error but one of judicial reasoning
in view of the pre-printed narrative recitation in the judgment form.
Such recitation read:
The court further makes its finding as to deadly weapon
as set forth above based on the jury’s verdict or the
findings of the Court when punishment fixed by the
court.
A careful reading of the pre-printed recitation, general in
nature, shows it was primarily designed and applicable when there
had been an affirmative finding by judge or jury. Despite the jury’s
verdict, the panel opinion on original submission decided that there
had been judicial error which could not be corrected upon the State’s
8
complaint. Observing that the State had only a limited right of appeal
and none in the Creeks appeal, the panel applied Rule 52 of the Texas
Rules of Appellate Procedure and held that the failure of the State (the
non-appealing party) to complain or object to the judgment in the trial
court waived any error.
On rehearing the State relied upon Poe, arguing that the failure
of the trial court was not an error of judicial reason “but rather an
error of clerical nature.” Poe, 751 S.W.2d at 876. The “lead” opinion
on rehearing sought to distinguish between Poe and other cases on the
basis that the judgments in those cases were silent as to the use of a
deadly weapon, whereas the Creeks’ judgment made a finding of
“N/A” even though it was contrary to the jury’s verdict. The
concurring opinion on rehearing could not agree on the “undue
emphasis on any distinction between this case and Ex parte Poe . . . .”
Creeks, 773 S.W.2d at 336 (Thomas, J., concurring). It relied, instead,
upon the failure of the State (as a non-appealing party) to make a
timely request, objection, or motion in the trial court, Texas Rule of
Appellate Procedure 52(a), or move for a judgment nunc pro tunc in
the trial court prior to the appeal. There was also a dissenting opinion
on rehearing indicating the three-member panel was badly split.
What was overlooked, as earlier discussed, is the fact that an
appellate court, on its own motion, can reform the judgment to make
the record speak the truth. In fact, it has a duty to do so, and such duty
is not dependent upon a request by either party or whether they
objected and preserved error in the trial court. Reliance on Rule 52(a)
was misplaced in Creeks. Further, it is universally known that
judgments in criminal cases, unlike those in civil cases, are generally
prepared by clerks or other court personnel, and are not normally
submitted to the parties for approval as to form. Often the parties learn
of the judgment’s recitations for the first time when the record is
examined for appellate purposes and after the trial court has lost
jurisdiction of the cause. At that time it is too late for either party to
call the error to the trial court’s attention or to move for a nunc pro
tunc judgment there. See Stevens v. State, 371 S.W.2d 398 (Tex. Crim.
App. 1963).
For an appellate court to ignore its duty to correct the record to
speak the truth when the matter has been called to its attention by any
source, and when it has the necessary data to do so, and to force a
later nunc pro tunc proceeding in the trial court ensuring the
9
possibility of another appeal in the same case, as happened here, does
nothing to aid judicial economy. See Creeks v. State, 807 S.W.2d 853
(Tex. App.—Dallas, 1991, no pet. h.). We find that the failure of the
trial court to enter the necessary affirmative finding as to the use or
exhibition of a deadly weapon is a clerical error; we overrule Creeks
to the extent of any conflict.
Asberry, 813 S.W.2d at 529–31 (citing former 1986 Texas Rule of Appellate
Procedure 80(b) (court of appeals may “modify the judgment of the court below by
correcting or reforming it”), now current Tex. R. App. P. 43.2(b) (court of appeals
may “modify the trial court’s judgment and affirm it as modified”)).7
Judge Onion pointed out a serious issue in criminal procedure that remains
unaddressed—that judgments in criminal cases, unlike those in civil cases, are not
normally submitted to the parties for approval as to form. See Tex. R. Civ. P. 305
(proposed judgments in civil cases). Due to legislative inaction to amend the Code
of Criminal Procedure to require criminal judgments to be submitted to both the
defendant and the State for review, all manner of mistakes occur on a not
7
Asberry cites to both former 1986 Texas Rule of Appellate Procedure 80(b) and (c).
813 S.W.2d at 529. The authority Asberry cites is Aguirre v. State, 732 S.W.2d 320, 327 (Tex.
Crim. App. [Panel Op.] 1982), which relied on former Code of Criminal Procedure article
44.24(b). Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 133, art. 44.24(b), 1981 Tex. Gen.
Laws 761, 816 (“The courts of appeals and the Court of Criminal Appeals may affirm the
judgment of the court below, or may reverse and remand for a new trial, or may reverse and
dismiss the case, or may reform and correct the judgment or may enter any other appropriate
order, as the law and nature of the case may require.”). As discussed later, the promulgation of
the 1986 Texas Rules of Appellate Procedure substantively changed former Code of Criminal
Procedure article 44.24(b) by dividing “may reform and correct the judgment or may enter any
other appropriate order, as the law and nature of the case may require” into former 1986 Texas
Rule of Appellate Procedure 80(b) and (c). As Asberry contains no substantive discussion of
former 1986 Texas Rule of Appellate Procedure 80(c) (“Other Orders. In addition, the court of
appeals may make any other appropriate order, as the law and the nature of the case may
require.),” the substantive procedural rule discussed in Asberry is former 1986 Texas Rule of
Appellate Procedure 80(b)(2). See Tex. R. App. P. 80(b), (c), 11 Tex. Reg. 1939, 2003–04, 49
Tex. B.J. 558, 581 (Tex. Crim. App. Apr. 10, 1986, eff. Sept. 1, 1986) (“(b) Types of
Judgment. The court of appeals may: . . . (2) modify the judgment of the court below by
correcting or reforming it . . . .”).
10
infrequent basis that require Asberry/French nunc pro tunc modification under
current Texas Rule of Appellate Procedure 43.2(b). Whether a judgment that has
not been reviewed by the defendant and the State contains an incorrect (1)
designation of the trial court, (2) punishment range, (3) plea on an enhancement
paragraph, (4) finding, (5) statement that defendant has no right of appeal, and/or
(6) et cetera, it is unquestionably a very poor use of resources to set up a system in
which judgments nunc pro tunc must be done in the appellate court, assuming the
erroneous judgments are appealed.8 There is an obvious solution—allow the trial
court to fix such errors before it signs the judgment. Because the legislature has not
yet entrusted the Court of Criminal Appeals with rulemaking authority like that of
the Supreme Court of Texas, only the legislature can fix this problem. Until then,
the appellate courts must spend their time correcting such nunc pro tunc errors.
C. Is the finding subject to Asberry/French “speak the truth” modification?
The State makes the following legal argument for modifying the finding in
this case: “This Court may modify a trial court’s judgment and affirm it as
modified. See Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Tex.
R. App. P. 43.2(b).”
The Court of Criminal Appeals in Bigley stated, “Nothing in the text of Rule
8
In addition, criminal procedure still clings to the concept that everything essential to the
conviction and sentence is orally rendered in open court, with the written judgment seemingly a
mere memorial of what the trial judge said. The Supreme Court of Texas long ago recognized the
complexity of judgments and abandoned this practice by adopting Texas Rule of Civil Procedure
306a, requiring the date of the signing of the judgment as the beginning of the time for
post-judgment motions and appeals. Judgments in criminal cases are no longer simple, and the
Code of Criminal Procedure and other codes continue to require the expansion of such
judgments. Perhaps the time has arrived when this complexity requires that criminal deadlines
for post-judgment motions and appeals run from the signing of a judgment that has been
reviewed as to form and substance by both the defendant and the State. This would allow the
courts of appeals to use a consistent standard for clerical error and judicial error in both criminal
and civil judgments.
11
80, however, so limits the power of the court of appeals to reform a judgment of
the court below. Therefore, we refuse to limit the authority of the courts of appeals
to reform judgments to only those situations involving mistakes of a clerical
nature.” 865 S.W.2d at 27. Clearly, Rule 43.2(b) functions as more than merely a
means to render a judgment nunc pro tunc. In Bigley, however, the question was
whether the court of appeals had the authority to reform a judgment to reflect a
conviction for a lesser-included offense when there was insufficient evidence to
convict the defendant for the offense of possession of at least 400 grams of
methamphetamine, but sufficient evidence of a less than 400 grams. Id. at 26–27.
We know from cases like Bigley and Bowen v. State, 374 S.W.3d 427 (Tex. Crim.
App. 2012) that Rule 43.2(b) can be used to modify the trial court’s judgment to
convict the defendant on a lesser-included offense and affirm that judgment as
modified. In this appeal, the State is not asking this court to modify the judgment
to convict the defendant on a lesser-included offense. The only Rule 43.2(b) basis
is Asberry/French “speak the truth” modification—nunc pro tunc error correction.
There is no question that this court must delete the language “APPEAL
WAIVED. NO PERMISSION TO APPEAL GRANTED.” The record reveals this
to be a clerical error in the judgment, given that appellant has a right to appeal
under Code of Criminal Procedure article 44.02, so this finding must be deleted to
make the record “speak the truth.” Tex. Code Crim. Proc. Ann. art. 44.02. But
there is no path to applying Asberry/French modification to correct error in the
affirmative finding of fact by the trial judge pursuant to Code of Criminal
Procedure article 42.017. First, the State specifically raised the error on appeal, but
neither preserved error in the trial court nor argued why preservation was
unnecessary. See Tex. Code Crim. Proc. Ann. art. 44.01 (State’s appeal); Tex. R.
App. P. 33.1(a). Second, the State argues, “The findings are contrary to the
12
record.” This is materially different, however, from the circumstance regarding the
defendant’s right of appeal because the record does not reflect a reason why
appellant has no right to appeal, so the judgment did not properly reflect what
happened in the trial court. Regarding the article 42.017 findings, however, there is
no indication as to the trial court’s intentions; rather, the State’s argument is simply
that the finding is not supported by sufficient evidence.
Were the State raising a conventional issue claiming error in the trial court’s
judgment, this presumably would be an issue that no evidence exists to support the
trial judge’s required finding. Where in this appeal is the discussion of the
deference we give to the fact finder for credibility and weight determinations and
the consideration of all the evidence in the light most favorable to the finding? If
Jackson v. Virginia and Brooks v. State do not apply and Rule 43.2(b) allows this
court to “fix” the finding without the bother of an evidentiary review that Rule
43.2(c) requires, that would be a massive and unprecedented expansion of this
court’s “error correction” powers, because this looks more like a sua sponte
legal-sufficiency review and subsequent nullification of a fact finding rather than a
nunc pro tunc correction of a clerical error. See Jackson, 443 U.S. 307, 319 (1979);
Brooks, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010).
Assuming (1) the State’s cross-point is permissible under Code of Criminal
Procedure article 44.01 and (2) the State had no burden to preserve error in the trial
court under Rule 33.1(a)(1), none of which is briefed by the State, the State
nonetheless makes no substantive argument for expanding Asberry/French
modification to correct error to what appears to be a no-evidence issue. See Tex. R.
App. P. 48.1 (“brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authority and to the record.”). Faced with no
legal-sufficiency argument, what should this court do?
13
That question is not addressed. What the court does is fix the State’s
problem. First, the court describes the findings as “incorrect.” The problem is the
court engages in no discussion regarding whether the trial court’s finding is error,
and if it is error, whether it is clerical error subject to nunc pro tunc modification or
judicial error that should be reversed under Rule 43.2(c). It takes more than merely
“incorrect” findings to invoke our authority to modify the judgment to make it
speak the truth. See Asberry, 813 S.W.2d at 530. Neither French, Asberry, or Rule
43.2 (“Types of Judgment”) give the appellate court carte blanche to alter the trial
court’s judgment to “fix things” and achieve whatever result the appellate court
thinks is “correct.”
D. Does Rule 43.6 allow this court to delete the finding?
What this court also cites, but with no substantive discussion, is Texas Rule
of Appellate Procedure 43.6 for the additional justification that this court can use
that rule to alter the trial court’s judgment: “The court of appeals may make any
other appropriate order that the law and the nature of the case require.” Tex. R.
App. P. 43.6. That is not a plain reading of the rule, as the types of judgments are
listed in Rule 43.2; the “other appropriate order” this court may make must
accordingly be distinct from the modification of judgment allowed under Rule
43.2. Accordingly, under Boykin v. State, the interpretation of Rule 43.6 can stop
here because the plain meaning of “Other Orders” prohibits the court’s reliance on
that rule in this case, and this reading does not lead to an absurd result. 818 S.W.2d
782, 785 (Tex. Crim. App. 1991). However, it is useful to understand how we got
to Rule 43.2 and 43.6 because there have been substantive changes over the 164
years since the adoption of the Old Code, when the legislature enacted the Code of
Criminal Procedure and article 742 used the phrase “as the law and the nature of
14
the case require.”9
9
1856 Code of Criminal Procedure, 6th Leg., Adj. S., § 1, art. 742, 1856 Tex. Crim. Stat.
4, 141 (“The judgment in a criminal action, upon appeal, may be wholly reversed and dismissed
when brought up by the defendant, or affirmed and dismissed when brought up by the State ; the
judgment may be reformed and corrected, or the cause may be remanded for further proceedings
in the District Court, as the law and the nature of the case may require.”), recodified and
repealed by 1879 Penal Code and Code of Criminal Procedure, 16th Leg., R.S., § 2, art. 869, § 3,
1879 Tex. Crim. Stat. n.p. (Penal Code), n.p. (Code of Criminal Procedure), 103 (“The court of
appeals may affirm the judgment of the court below, or may reverse and remand for a new trial,
or may reverse and dismiss the case, or may reform and correct the judgment as the law and the
nature of the case may require.”), 157 (repealer), replaced and repealed by Act approved Apr.
13, 1892, 22d Leg., 1st C.S., ch. 16, § 41 (replacement), § 67 (repealer), 1892 Tex. Gen. Laws
34, 39 (“The court of criminal appeals may affirm the judgment of [sic] the court below, or may
reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and
correct the judgment as the law and the nature of the case may require. . . .”) 42 (repealer),
recodified and repealed by 1895 Penal Code and Code of Criminal Procedure, 24th Leg., R.S.,
§ 2, art. 904, § 3, 1895 Tex. Crim. Stat. 2 (Penal Code), 2 (Code of Criminal Procedure), 124
(“The court of criminal appeals may affirm the judgment of the court below, or may reverse and
remand for a new trial, or may reverse and dismiss the case, or may reform and correct the
judgment, as the law and the nature of the case may require. . . .”), 182 (repealer), amended by
Act approved Mar. 3, 1897, § 1, art. 904, 1897 Tex. Gen. Laws 11, 11 (“The Court of Criminal
Appeals may affirm the judgment of the court below or may reverse and remand for a new trial,
or may reverse and dismiss the case, or may reform and correct the judgment, as the law and the
nature of the case may require. . . .”), recodified by 1911 Penal Code and Code of Criminal
Procedure, 24th Leg., R.S., § 2, art. 938, § 3, 1911 Tex. Crim. Stat. n.p. (Penal Code), n.p. (Code
of Criminal Procedure), 268 (“Judgment on appeal.—The court of criminal appeals may affirm
the judgment of the court below, or may reverse and remand for a new trial, or may reverse and
dismiss the case, or may reform and correct the judgment, as the law and the nature of the case
may require . . . .”) (no repealer of 1895 Code of Criminal Procedure; see Berry v. State, 156
S.W. 626, 635 (Tex. Crim. App. 1913)), recodified and repealed by 1925 Penal Code and Code
of Criminal Procedure, 39th Leg., R.S., § 2, art. 847, § 3, art. 1, 1925 Tex. Crim. Stat. 2 (Penal
Code), 2 (Code of Criminal Procedure), 134 (“Presumptions on appeal.—The Court of
Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a
new trial, or may reverse and dismiss the case, or may reform and correct the judgment, as the
law and nature of the case may require. . . .”), 181 (repealer for both 1895 and 1911), recodified
and repealed by 1965 Code of Criminal Procedure of the State of Texas, 59th Leg., R.S., ch.
722, § 1, arts. 44.24, 54.02, sec. 1(a), [2] 1965 Tex. Gen. Laws 317, 317, 516 (“The Court of
Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a
new trial, or may reverse and dismiss the case, or may reform and correct the judgment, as the
law and nature of the case may require. . . .”), 563 (repealer), amended by Act of May 25, 1973,
63d Leg., R.S., ch. 460, § 1, art. 44.24, 1973 Tex. Gen. Laws 1260, 1260 (“ . . . (b) The Court of
Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a
new trial, or may reverse and dismiss the case, or may reform and correct the judgment, as the
law and nature of the case may require.”), article 44.24(b) amended by Act of June 1, 1981, 67th
15
Originally, article 742 specified that the phrase “as the law and the nature of
the case require” modified both “[1] the judgment may be reformed and corrected,
or [2] the cause may be remanded.” The second part (“the cause may be remanded,
as the law and the nature of the case require”) allowed the appellate court10 to
Leg., R.S., ch. 291, § 133, art. 44.24(b), 1981 Tex. Gen. Laws 761, 816 (“The courts of appeals
and the Court of Criminal Appeals may affirm the judgment of the court below, or may reverse
and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the
judgment or may enter any other appropriate order, as the law and nature of the case may
require.”), codification and repeal authorized by Act of May 27, 1985, 69th Leg., R.S., ch. 685,
§ 4, 1985 Tex. Gen. Laws 2472, 2472 (authorizing repeal if Court of Criminal Appeals
promulgates comprehensive body of rules of posttrial, appellate, and review procedure in
criminal cases) and codified and repealed by Tex. R. App. P. 80(b), (c), 11 Tex. Reg. 1939,
2003–04, 49 Tex. B.J. 558, 581 (Tex. Crim. App. Apr. 10, 1986, eff. Sept. 1, 1986) (“(b) Types
of Judgment. The court of appeals may: (1) affirm the judgment of the court below, (2) modify
the judgment of the court below by correcting or reforming it, (3) reverse the judgment of the
court below and dismiss the case or render the judgment or decree that the court below should
have rendered, or (4) reverse the judgment of the court below and remand the case for further
proceedings. (c) Other Orders. In addition, the court of appeals may make any other appropriate
order, as the law and the nature of the case may require.”), amended by Tex. R. App. P. 43.2,
43.6, 60 Tex. B.J. 878, 923 (Tex. Crim. App. Aug. 15, 1997, eff. Sept. 1, 1997) (“43.2 Types of
Judgment. The court of appeals may: (a) affirm the trial court’s judgment in whole or in part;
(b) modify the trial court’s judgment and affirm it as modified; (c) reverse the trial court’s
judgment in whole or in part and render the judgment that the trial court should have rendered;
(d) reverse the trial court’s judgment and remand the case for further proceedings; (e) vacate the
trial court’s judgment and dismiss the case; or (f) dismiss the appeal.”) (“43.6 Other Orders.
The court of appeals may make any other appropriate order that the law and the nature of the
case require.”) (apparently no publication in Texas Register; see Tex. Gov’t Code Ann.
§ 22.108(c)).
Current Texas Rules of Appellate Procedure 43.2 and 43.6 are discussed in 43B George
E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure §§ 56.213
(reformation to conviction of lesser included offense), .216 (reformation or modification of
judgment—in general) (3d ed. 2011).
10
The appellate court from 1856 to the 1876 effective date of the current Texas
Constitution was the Supreme Court of Texas; the appellate court after the effective date of the
current Texas Constitution was the Court of Appeals. See Tex. Ord. no. 1, § 1 (Nov. 22, 1875),
reprinted in 8 H.P.N. Gammel, The Laws of Texas 1822–1897, at 775, 775 (Austin, Gammel
Book Co. 1898) (“If a majority of all the votes cast at said election, and returned to the Secretary
of State, shall be in favor of ratification, the Governor shall, within five days next succeeding the
return day, issue his proclamation declaring the fact, and then the new Constitution shall, on the
third Tuesday in April, A. D., 1876 [April 18, 1876], become, and thereafter be, the organic and
fundamental law of the State.”); Tex. Const. art. V, §§ 5–6 (among other things, creating Court
of Appeals and setting term of court as first Monday of October until last Saturday of June).
16
remand for further proceedings without action on the judgment of the court below:
[1856] The judgment in a criminal action, upon appeal, may be
wholly reversed and dismissed when brought up by the defendant, or
affirmed and dismissed when brought up by the State ; the judgment
may be reformed and corrected, or the cause may be remanded for
further proceedings in the District Court, as the law and the nature of
the case may require.11
Beginning in 1879, the legislature limited “as the law and the nature of the
case may require” to modifying “the court of appeals may . . . reform and correct
the judgment” by removing the appellate court’s power to order that “the cause
may be remanded for further proceedings in the District Court”:
[1879] The court of appeals may affirm the judgment of the court
below, or may reverse and remand for a new trial, or may reverse and
dismiss the case, or may reform and correct the judgment as the law
and the nature of the case may require.12
Other than changing “court of appeals” to “Court of Criminal Appeals,” the
legislature in 1892, 1895, 1897, 1911, 1925, 1965, and 1973 kept “as the law and
the nature of the case may require” as a modification of the appellate court’s power
to “reform and correct the judgment”:
[1892] The court of criminal appeals may affirm the judgment of of
[sic] the court below, or may reverse and remand for a new trial, or
may reverse and dismiss the case, or may reform and correct the
judgment as the law and the nature of the case may require. . . .13
[1895] The court of criminal appeals may affirm the judgment of the
court below, or may reverse and remand for a new trial, or may
11
1856 Code of Criminal Procedure, 6th Leg., Adj. S., § 1, art. 742, 1856 Tex. Crim.
Stat. 4, 141.
12
1879 Penal Code and Code of Criminal Procedure, 16th Leg., R.S., § 2, art. 869, 1879
Tex. Crim. Stat. n.p. (Penal Code), n.p. (Code of Criminal Procedure), 103.
13
Act approved Apr. 13, 1892, 22d Leg., 1st C.S., ch. 16, § 41, 1892 Tex. Gen. Laws 34,
39.
17
reverse and dismiss the case, or may reform and correct the judgment,
as the law and the nature of the case may require. . . .14
[1897] The Court of Criminal Appeals may affirm the judgment of the
court below or may reverse and remand for a new trial, or may reverse
and dismiss the case, or may reform and correct the judgment, as the
law and the nature of the case may require. . . .15
[1911] Judgment on appeal.—The court of criminal appeals may
affirm the judgment of the court below, or may reverse and remand
for a new trial, or may reverse and dismiss the case, or may reform
and correct the judgment, as the law and the nature of the case may
require . . . .16
[1925] Presumptions on appeal.—The Court of Criminal Appeals
may affirm the judgment of the court below, or may reverse and
remand for a new trial, or may reverse and dismiss the case, or may
reform and correct the judgment, as the law and nature of the case
may require. . . .17
[1965] The Court of Criminal Appeals may affirm the judgment of the
court below, or may reverse and remand for a new trial, or may
reverse and dismiss the case, or may reform and correct the judgment,
as the law and nature of the case may require. . . .18
[1973] The Court of Criminal Appeals may affirm the judgment of the
court below, or may reverse and remand for a new trial, or may
reverse and dismiss the case, or may reform and correct the judgment,
as the law and nature of the case may require.19
In 1981, the legislature substantively extended the scope of “as the law and
14
1895 Penal Code and Code of Criminal Procedure, 24th Leg., R.S., § 2, art. 904, 1895
Tex. Crim. Stat. 2 (Penal Code), 2 (Code of Criminal Procedure), 124.
15
Act approved Mar. 3, 1897, § 1, art. 904, 1897 Tex. Gen. Laws 11, 11.
16
1911 Penal Code and Code of Criminal Procedure, 24th Leg., R.S., § 2, art. 938, 1911
Tex. Crim. Stat. n.p. (Penal Code), n.p. (Code of Criminal Procedure), 268.
17
1925 Penal Code and Code of Criminal Procedure, 39th Leg., R.S., § 2, art. 847, 1925
Tex. Crim. Stat. 2 (Penal Code), 2 (Code of Criminal Procedure), 134.
18
1965 Code of Criminal Procedure of the State of Texas, 59th Leg., R.S., ch. 722, § 1,
arts. 44.24, [2] 1965 Tex. Gen. Laws 317, 317, 516.
19
Act of May 25, 1973, 63d Leg., R.S., ch. 460, § 1, art. 44.24, 1973 Tex. Gen. Laws
1260, 1260.
18
the nature of the case may require” to allow the Court of Criminal Appeals and the
new courts of appeals to “reform and correct the judgment” or “enter any other
appropriate order”:
[1981] The courts of appeals and the Court of Criminal Appeals may
affirm the judgment of the court below, or may reverse and remand
for a new trial, or may reverse and dismiss the case, or may reform
and correct the judgment or may enter any other appropriate order, as
the law and nature of the case may require.20
The 1981 power of the appellate courts to “enter any other appropriate order” “as
the law and the nature of the case may require” resurrected the power of Old Code
1856 Code of Criminal Procedure article 742 to remand for further proceedings
without affecting the lower court’s judgment “as the law and the nature of the case
may require.” The 1981 power of the appellate courts to “enter any other
appropriate order” “as the law and the nature of the case may require” also
extended beyond the Old Code’s grant of power to order a remand for further
proceedings to other orders that did not affect the judgment of the court below.
After the legislature in 1985 authorized the Court of Criminal Appeals to
promulgate rules of posttrial, appellate, and review procedure in criminal cases, the
Supreme Court of Texas and Court of Criminal Appeals jointly adopted the 1986
Texas Rules of Appellate Procedure. Former 1986 Rule 80 recodified the former
criminal statutes as follows:
[1988] (b) Types of Judgment. The court of appeals may: . . .
(2) modify the judgment of the court below by correcting or reforming
it. . . .
(c) Other Orders. In addition, the court of appeals may make any other
20
Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 133, art. 44.24(b), 1981 Tex. Gen.
Laws 761, 816.
19
appropriate order, as the law and the nature of the case may require.21
This is what Presiding Judge Onion interpreted in Asberry. 813 S.W.2d at 531.
Former 1986 Rule 80 made a substantive change, restricting “as the law and the
nature of the case may require” to modifying only Rule 80(c). Whether there was a
specific reason for removing “as the law and the nature of the case may require” as
a modifier of “reform and correct the judgment” is uncertain; however, the plain
language of the 1986 Texas Rules of Appellate Procedure shows that the change
was made. Former 1986 Rule 80 also clearly distinguished between “Types of
Judgments” and “Other Orders” that the courts of appeals were authorized to make,
clearly indicating that former Rule 80(c) orders were different from judgments.
The final step in this evolution is current Texas Rules of Appellate
Procedure:
[1997] 43.2 Types of Judgment. The court of appeals may: . . . (b)
modify the trial court’s judgment and affirm it as modified; . . . .
43.6 Other Orders. The court of appeals may make any other
appropriate order that the law and the nature of the case require.22
Other than simplifying the language in Rule 43.2, there is no significant change.
The statutory history confirms that this court cannot rely on Rule 43.6 to
justify the action it takes in this case, but also sheds light on the problematic nature
of, and possible solutions to, the issues situations like these present to the
defendant and State and to appellate courts. If there is anything to learn from this
history, it is that one arguable “other order” is something like the remand the Old
Code allowed under 1856 Code of Criminal Procedure article 742. The State could
21
Tex. R. App. P. 80(b), (c), 11 Tex. Reg. 1939, 2003–04, 49 Tex. B.J. 558, 581 (Tex.
Crim. App. Apr. 10, 1986, eff. Sept. 1, 1986).
22
Tex. R. App. P. 43.2, 43.6, 60 Tex. B.J. 878, 923 (Tex. Crim. App. Aug. 15, 1997, eff.
Sept. 1, 1997).
20
have asked for this court to order the cause remanded to the trial court for further
proceedings limited to a hearing on the affirmative finding of fact by the trial judge
pursuant to Code of Criminal Procedure article 42.017. But the State has not
requested that, nor argued if that is a proper use of Rule 43.6. The case has been
submitted and allowing a party—whether appellant or the State—to raise new
arguments at this time would be extraordinary.
II. CONCLUSION
There is no legal basis on which to grant the relief the State requests in its
cross-point to delete the Code of Criminal Procedure article 42.017 finding, and
the court errs in sustaining that portion of the cross-point. Accordingly, I dissent to
that portion of this court’s judgment. I also strongly disagree with the court’s
opinion insofar as it casually and wrongly expands the scope of Asberry/French
“speak the truth” modification and misconstrues the plain language of Texas Rule
of Appellate Procedure 43.6 to fix a fact finding contrary to established law under
Jackson v. Virginia and Brooks v. State. I concur in the remainder of the judgment.
I also hope the legislature will do something to allow defendants and the State an
opportunity to review draft criminal judgments in advance of the trial court signing
those judgments. While the civil practice is not perfect, the current criminal
practice, which allows all sorts of errors affecting the defendant and State to slip
through the cracks, seems to have no justification other than “we’ve always done it
that way.” Texas deserves better.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Frost and Justices Jewell and Spain (Frost, C.J.,
majority).
Publish — TEX. R. APP. P. 47.2(b).
21