In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00526-CR
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PAUL RAY DESILETS, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 08-12-11262 CR
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MEMORANDUM OPINION
This Court affirmed the trial court’s judgments in an appeal by Paul Ray Desilets
of convictions for intoxication assault. See Desilets v. State, No. 09-09-00375-CR, 2010
WL 3910588 (Tex. App.—Beaumont Oct. 6, 2010, pet. ref’d); see also Tex. Penal Code
Ann. § 49.07 (West 2011). Later the trial court denied Desilets’s motion for entry of
judgment nunc pro tunc, and Desilets filed a notice of appeal.
“The standard to determine whether an appellate court has jurisdiction to hear and
determine a case ‘is not whether the appeal is precluded by law, but whether the appeal is
authorized by law.’” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012)
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(quoting Abbott v. State, 271 S.W.3d 694, 697 (Tex. Crim. App. 2008)). A nunc pro tunc
judgment may be appealed. Id. at 904. Errors that are not the result of judicial reasoning
are sometimes considered clerical errors that can be fixed by a nunc pro tunc order. See
Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007). In this case, the trial court
denied Desilets’s motion to delete the cumulation order from the judgment. “The trial
court cannot, through a judgment nunc pro tunc, change a court’s records to reflect what
it believes should have been done.” Id. The signing of an order denying a motion for
entry of judgment nunc pro tunc is not an appealable event. Everett v. State, 82 S.W.3d
735, 735 (Tex. App.—Waco 2002, pet. dism’d).
In response to our inquiry regarding jurisdiction, Desilets requested mandamus
relief. He contends the trial court had a ministerial duty to correct the judgment by
deleting the cumulation order. See Ex parte Madding, 70 S.W.3d 131, 135-36 (Tex. Crim.
App. 2002) (A trial court’s oral pronouncement that sentences be served concurrently
controls over the written judgment’s cumulation order.). The parties’ submissions to the
trial court on Desilets’s motion for judgment nunc pro tunc reflect the dispute. Desilets
claimed that the trial court orally pronounced sentence without stating that the sentences
for intoxication assault would be served consecutively. The State claimed that a visiting
judge conducted the trial and received the jury’s verdict, that the judge of the 359th
District Court reconvened the proceedings the following day and the parties agreed to
recess until the visiting judge could return to decide the issue of cumulation, and that the
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visiting judge pronounced sentence and ordered that Desilet’s sentences for intoxication
assault be served consecutively. See Tex. Penal Code Ann. § 3.03(b)(1)(A) (West Supp.
2012).
Desilets failed to challenge the trial court’s decision to cumulate the sentences in
his original appeal. An order denying a motion for judgment nunc pro tunc is not
appealable. Under the circumstances it would not be proper for this Court to grant a writ
of mandamus or exercise jurisdiction over this appeal. 1 We dismiss this appeal for lack of
jurisdiction.
APPEAL DISMISSED.
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DAVID GAULTNEY
Justice
Opinion Delivered January 30, 2013
Do Not Publish
Before Gaultney, Kreger, and Horton, JJ.
1
To resolve the jurisdictional and procedural issues before us, we need not
determine whether the trial court correctly ordered cumulation, and the issue might arise
in subsequent habeas proceedings. Accordingly, we do not address the merits of the
issues attempted to be raised in this appeal.
3