COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00382-CR
Dedric D. Wilson § From the 396th District Court
§ of Tarrant County (0761071D)
v. § January 24, 2013
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT ON REHEARING
After considering the Appellant’s motion for rehearing, we deny the motion.
We withdraw our October 25, 2012 opinion and judgment and substitute the
following.
This court has again considered the record on appeal in this case and
holds that the appeal should be dismissed. It is ordered that the appeal is
dismissed for want of jurisdiction.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00382-CR
DEDRIC D. WILSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1 ON APPELLANT’S
MOTION FOR REHEARING
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After considering Appellant’s motion for rehearing, we deny the motion, but
we withdraw our opinion and judgment of October 25, 2012, and substitute the
following.
Appellant Dedric D. Wilson appeals from the trial court’s order denying his
―Motion to Vacate Guilty Plea Nunc Pro Tunc,‖ in which he contends that his trial
counsel was ineffective regarding his 2001 conviction and sentence. In late
1
See Tex. R. App. P. 47.4.
2
August 2012, we informed Appellant by letter of our concern that we do not have
jurisdiction over his appeal and stated that his appeal could be dismissed unless
he or any party filed within ten days a response showing grounds for continuing
the appeal. Appellant’s response does not show valid grounds for continuing the
appeal.
An order denying a motion for judgment nunc pro tunc is not appealable.2
Further, despite the title Appellant gave his motion, the relief he seeks—that the
trial court vacate his guilty plea based on trial counsel’s alleged ineffective
assistance—is not available via a judgment nunc pro tunc:
The purpose of a judgment nunc pro tunc is to correctly reflect
from the court’s records the judgment the court actually rendered but
for some reason did not enter at the proper time. A judgment nunc
pro tunc can be entered at any time, even after the trial court has
lost jurisdiction over the case. Nunc pro tunc can only be used to
correct clerical errors, however, not judicial ones. Whether an error
is judicial or clerical in nature is a question of law. The failure to
record or to accurately record a judgment that was rendered in fact
is a clerical error. A judicial error is one that is the product of judicial
reasoning. A nunc pro tunc entry may be made to correct a
judgment to properly reflect the trial court’s actual ruling, but it may
not be used to modify or add provisions to an order previously
entered.3
An applicant may obtain the type of relief Appellant seeks via a successful
article 11.07 application for writ of habeas corpus.4 But to the extent that
2
See Ex parte Ybarra, 149 S.W.3d 147, 148–49 (Tex. Crim. App. 2004)
(providing that appropriate remedy for denial of motion for judgment nunc pro
tunc is to file mandamus petition in court of appeals); Everett v. State, 82 S.W.3d
735, 735 (Tex. App.—Waco 2002, pet. dism’d).
3
In re Hancock, 212 S.W.3d 922, 927 (Tex. App.—Fort Worth 2007, orig.
proceeding) (citations omitted).
4
See, e.g., Ex parte Bratchett, 513 S.W.2d 851 (Tex. Crim. App. 1974).
2
Appellant asks us to interpret his complaint ―under whatever law or procedure
that is allowed to correct the clear Constitutional errors that were made,‖ an
intermediate appellate court does not have jurisdiction over matters related to
article 11.07 applications for writs of habeas corpus.5 ―Article 11.07 contains no
role for the courts of appeals; the only courts referred to are the convicting court
and the Court of Criminal Appeals.‖6
Accordingly, we dismiss this appeal for want of jurisdiction.7
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 24, 2013
5
See Tex. Code Crim. Proc. Ann. art. 11.07, §§ 3, 5 (West Supp. 2012);
Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist.,
910 S.W.2d 481, 483 (Tex. Crim. App. 1995).
6
In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001,
orig. proceeding).
7
See Tex. R. App. P. 43.2(f).
3