Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00291-CV
IN THE INTEREST OF N.S., a Child
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 1997-PA-01542
Honorable John D. Gabriel Jr., Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: August 19, 2015
AFFIRMED
Appellant Marco Sanchez appeals the trial court’s 2014 order granting his ex-wife’s motion
for judgment nunc pro tunc. The nunc pro tunc judgment added a SAPCR cause number to a 1998
order that, inter alia, denied Marco’s petition to terminate his parental rights to N.S. Marco argues
the trial court erred because it corrected a judicial error, not a clerical one. Because the evidence
was legally and factually sufficient to support the 2014 trial court’s finding that the 1998 trial court
heard and ruled on motions from the termination and SAPCR causes, we conclude that omitting
the SAPCR cause number from the 1998 order was merely a clerical error that was correctable by
judgment nunc pro tunc. Therefore, we affirm the trial court’s order.
04-14-00291-CV
BACKGROUND
In 1992, the trial court signed a divorce decree for cause number 92-CI-02148, In the
Matter of Marriage of Marco F. Sanchez and Lisa Sanchez and in the Interest of Danielle Sanchez,
Christopher Sanchez, and Nicholas Sanchez, Children.
In 1997, Lisa sought an increase in child support for her three children. That same year,
Marco filed an original petition to terminate his parental rights to N.S. Marco’s petition was filed
in the same trial court but was given a separate cause number: 97-PA-01542. Thereafter, the trial
court 1 signed an order dated February 6, 1998, and titled “Order on Motion to Terminate Parental
Rights and Motion to Modify Child Support.” The heading on the order listed only one cause
number—the one from Marco’s parental rights termination suit.
In 2013, Marco moved the court to stop withholding child support for N.S. Thereafter,
Lisa moved for judgment nunc pro tunc to include the SAPCR cause number in the 1998 order. In
2014, the trial court 2 denied Marco’s motion and granted Lisa’s motion. Marco appeals the order
granting Lisa’s motion for judgment nunc pro tunc; he challenges the sufficiency of the evidence. 3
MARCO’S ARGUMENTS
Marco argues the trial court’s March 10, 2014 Findings of Fact and Conclusions of Law
“contain a number of conclusory statements not supported by any evidence.” Challenging the trial
court’s finding regarding a January 30, 1998 hearing, Marco contends there is no evidence to show
any hearing was held on that date. He acknowledges the February 6, 1998 order sets child support
at $600.00 per month, but denies there is any evidence to support the trial court’s 2014 finding that
the 1998 order “granted [Lisa’s] Motion to Modify Child Support by ordering that child support
1
The Honorable Michael Peden signed the February 6, 1998 order.
2
The Honorable John D. Gabriel Jr. signed the June 20, 2014 order.
3
Marco’s brief repeatedly asserts the findings of fact are “not supported by evidence” or “not supported by any
evidence.” We construe Marco’s assertions as challenging the factual and legal sufficiency of the evidence.
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be increased to $600.00 per month.” He also contends there is no evidence to show the $600.00
per month “child support was set for any other child other than [N.S.].” Before we address Marco’s
arguments, we briefly recite the applicable standards of review for evidentiary challenges in the
context of a nunc pro tunc judgment.
STANDARD OF REVIEW
The questions of whether a trial court rendered judgment, and if so, what the rendered
judgment actually contained, are questions of fact. Escobar v. Escobar, 711 S.W.2d 230, 232
(Tex. 1986). If an appellant challenges the sufficiency of the evidence supporting a judgment nunc
pro tunc, we apply a clear and convincing evidence standard. In re R.P.T., No. 04-03-00475-CV,
2005 WL 418220, at *2 (Tex. App.—San Antonio Feb. 23, 2005, pet. denied) (mem. op.);
Thompson v. Tex. Dep’t of Human Res., 859 S.W.2d 482, 485 (Tex. App.—San Antonio 1993, no
writ).
A. Legal Sufficiency
When a clear and convincing evidence standard applies, a legal sufficiency review requires
a court to “look at all the evidence in the light most favorable to the finding to determine whether
a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); accord In re J.L., 163 S.W.3d 79, 85 (Tex. 2005).
If the court “determines [a] reasonable factfinder could form a firm belief or conviction that the
matter that must be proven is true,” the evidence is legally sufficient. See In re J.L., 163 S.W.3d
at 85; In re J.F.C., 96 S.W.3d at 266.
B. Factual Sufficiency
Under a clear and convincing standard, evidence is factually sufficient if “a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re C.H.,
89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San
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Antonio 2004, no pet.). We must consider “whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96
S.W.3d at 266; accord In re C.H., 89 S.W.3d at 25.
C. Findings of Fact, No Reporter’s Record
If the appellate record contains the trial court’s findings of fact and conclusions of law but
does not contain the reporter’s record, we presume that sufficient evidence was introduced to
support the trial court’s findings of fact and the judgment. See Mays v. Pierce, 281 S.W.2d 79, 82
(Tex. 1955); Nelkin v. Panzer, 833 S.W.2d 267, 268 (Tex. App.—Houston [1st Dist.] 1992, writ
dism’d w.o.j.).
NUNC PRO TUNC JUDGMENT
“After the trial court loses its jurisdiction over a judgment, it can correct only clerical errors
in the judgment by judgment nunc pro tunc.” Escobar, 711 S.W.2d at 231; see TEX. R. CIV. P.
316; America’s Favorite Chicken Co. v. Galvan, 897 S.W.2d 874, 876 (Tex. App.—San Antonio
1995, writ denied).
A. Clerical Error
“‘A clerical error is one which does not result from judicial reasoning or determination.’”
Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 167 (Tex. 2013) (quoting
Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986)). The clerk’s function in entering judgment
highlights the difference between a clerical error and an error in judicial reasoning. See Burrell v.
Cornelius, 570 S.W.2d 382, 384 (Tex. 1978) (“Judges render judgment[s]; clerks enter them on
the minutes.” (emphasis added)). A clerical error is an “error made in entering final judgment.”
Escobar, 711 S.W.2d at 231; see Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970).
Evidence of a clerical error may include “written documents, previous judgments, [and] docket
entries.” Hernandez v. Lopez, 288 S.W.3d 180, 185 (Tex. App.—Houston [1st Dist.] 2009, no
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pet.); accord Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 683 (Tex. App.—
Houston [1st Dist.] 1997, no writ).
B. Judicial Error
In contrast, “[a] judicial error is one made by the court in rendering judgment, as opposed
to a failure to accurately recite the judgment rendered.” Stock v. Stock, 702 S.W.2d 713, 716 (Tex.
App.—San Antonio 1985, no writ); accord Escobar, 711 S.W.2d at 231. If the trial court renders
judgment incorrectly, but the written judgment precisely reflects the judgment the court actually
rendered, the error is judicial and the trial court may not alter its written judgment after its plenary
power has expired. See Escobar, 711 S.W.2d at 231–32; Hernandez, 288 S.W.3d at 184–85.
JUDGMENT, CONTENTS
Before deciding whether the nunc pro tunc judgment corrected a clerical or a judicial error,
we must determine whether the 1998 trial court rendered judgment on both causes. See Escobar,
711 S.W.2d at 232.
A. Findings of Fact
Here, the 2014 trial court filed findings of fact and conclusions of law addressing the 1998
trial court’s order. The 2014 trial court’s findings identify the three children of the marriage, note
that the initial child support monthly amount was “$220.00 per month for all three children,” and
include the following:
5. On January 30, 1998, a hearing was held on both the Original Petition for
Termination of Parental Rights and the Motion to Modify Child Support in Final
Decree of Divorce before Judge Michael Peden.
6. On February 6, 1998, Judge Michael Peden signed an Order on Motion to
Terminate Parental Rights and Motion to Modify Child Support that denied
Petitioner’s Motion for Termination of Parental Rights and granted Respondent’s
Motion to Modify Child Support by ordering that child support be increased to
$600.00 per month. By mistake, the cause number and caption used on this Order
only included the one from the Termination case and did not include the caption
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and cause number from the SAPCR case even though Judge Peden heard and ruled
on motions from both cases.
...
10. On January 22, 2014, this Court held a hearing on Marco F. Sanchez’s Motion
to Terminate Order for Withholding and Lisa Sanchez’s Motion for Judgment Nunc
Pro Tunc. On January 27, 2014, this Court made the following rulings: 1) Marco
F. Sanchez’s Motion to Terminate Order for Withholding was denied and 2) Lisa
Sanchez’s Motion for Judgment Nunc Pro Tunc was granted.
B. Presumption, Evidence in Record
Because no reporter’s record was filed in this appeal, 4 we presume there was sufficient
evidence to support the trial court’s finding that the 1998 trial court heard and ruled on motions
from both causes. See Mays, 281 S.W.2d at 82; Nelkin, 833 S.W.2d at 268.
1. 1998 Order in Appellate Record
The appellate record shows that in the 2014 hearing on the motion for judgment nunc pro
tunc, the trial court considered the evidence and took judicial notice of its file. The file includes a
copy of the February 6, 1998 order. The order is titled “Order on Motion to Terminate Parental
Rights and Motion to Modify Child Support”; it states the following:
On January 30, 1998, the matter of terminating parental rights and modification
of child support came to be heard . . . .
After hearing all the evidence and arguments of counsel, the Court found that
Petitioner’s Motion for Termination of Parental Rights is DENIED. It is also
FURTHER ORDERED by this Court that child support be set according to Texas
guidelines at $600.00 per month.
2. Docket Entries in Appellate Record
The record also contains docket entries. See Hernandez, 288 S.W.3d at 185 (noting that
evidence of a clerical error may include docket entries); Riner, 976 S.W.2d at 683 (same). The
4
In the appendix to Marco’s brief, it states the brief relies on the clerk’s and reporter’s records, but no reporter’s
record was filed in this appeal.
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docket entries for February 6, 1998, state “ORDER ON MOTION TO TERMINATE PARENTAL
RIGHTS-DENIED” and “MOTION TO MODIFY CHILD SUPPORT–GRNTD.”
3. No Evidence to Overcome Presumption
On appeal, Marco argues there is no evidence to support the 2014 trial court’s findings, but
he must overcome the presumption that the evidence presented was sufficient to support each of
the findings. See Mays, 281 S.W.2d at 82; Nelkin, 833 S.W.2d at 268. Both the 1998 order and
the docket entries support the trial court’s finding that motions from both causes were heard and
ruled on at the 1998 hearing. Further, the record shows the SAPCR suit expressly identified all
three children, a hearing was held before the February 6, 1998 order was signed, and the child
support amount was increased. Therefore, we conclude Marco failed to overcome the presumption
that the evidence was legally and factually sufficient to support the trial court’s findings. See
Mays, 281 S.W.2d at 82; Nelkin, 833 S.W.2d at 268.
JUDICIAL OR CLERICAL ERROR
Having concluded that the 1998 trial court heard and ruled on motions in both causes, we
now consider whether the nunc pro tunc judgment corrected a clerical or judicial error. See
Escobar, 711 S.W.2d at 231.
Despite the order’s title, which expressly identifies both the termination and SAPCR
causes, and the order’s contents, which expressly ruled on matters in both causes, the February 6,
1998 order included only the number for the parental termination cause. Marco argues the error
is judicial, but Escobar indicates otherwise.
In Escobar, the trial court’s judgment nunc pro tunc corrected the number of acres stated
in a written judgment to match the number of acres the trial court actually awarded. Escobar, 711
S.W.2d at 232; see also Andrews v. Koch, 702 S.W.2d 584, 586 (Tex. 1986) (affirming the trial
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court’s nunc pro tunc judgment because the signed judgment did not accurately reflect the decision
the trial court actually made).
Here, the trial court made a similar correction. Cf. Escobar, 711 S.W.2d at 231–32. The
trial court’s judgment nunc pro tunc corrected the 1998 written order to include the SAPCR cause
number that the 1998 trial court heard and ruled on. Cf. id. at 232. Because the 1998 trial court
ruled on motions in both causes, the trial court did not require judicial reasoning to correct the
1998 order by adding the SAPCR cause number. See Andrews, 702 S.W.2d at 586. Therefore,
the omission of the SAPCR cause number from the 1998 order was clerical and could be corrected
by judgment nunc pro tunc. See Escobar, 711 S.W.2d at 231; Andrews, 702 S.W.2d at 586.
CONCLUSION
In his appeal of the trial court’s order granting Lisa’s motion for judgment nunc pro tunc,
Marco complained that neither the trial court’s findings nor its judgment were supported by any
evidence. But the evidence in the appellate record includes the 1998 trial court’s order and docket
entries; this evidence shows the 1998 trial court heard and ruled on both causes. Further, the record
does not include any reporter’s record. Thus, Marco had to overcome the presumption that there
was sufficient evidence to support all of the trial court’s findings including the finding that the
1998 trial court heard and ruled on motions from both the parental termination and SAPCR causes.
Because Marco failed to overcome the presumption, and the 1998 trial court’s error was
clerical and could be corrected by judgment nunc pro tunc, we affirm the trial court’s order
granting Lisa’s motion for judgment nunc pro tunc.
Patricia O. Alvarez, Justice
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