In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00140-CR
IN RE: BRIAN K. MELTON
Original Mandamus Proceeding
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Moseley
OPINION
Pursuant to a plea agreement, Brian K. Melton pled guilty July 5, 2001, to two charges of
burglary of a habitation in two separate cause numbers. One of those burglaries was alleged to
have been committed January 24, 2001, and the other March 27, 2001.1 Pursuant to that
agreement, Melton was to be ordered to serve twenty years’ imprisonment on each charge, the
sentences were to run concurrently, and he was to receive 258 days’ credit for time already served.
Melton filed no appeal. It is the part of the order regarding credit for time served that caused
problems in Melton’s cases. In January 2003, the trial court entered nunc pro tunc judgments of
conviction in each of those cases. In those nunc pro tunc judgments, Melton’s sentence was
reduced to nineteen years, 200 days’ confinement, again giving him credit for 258 days’ served.
Melton now seeks mandamus relief asking this Court to compel the trial court to vacate its January
2003 nunc pro tunc judgments of conviction. For the reasons below, we conditionally grant
Melton’s petition for writ of mandamus.
I. Background
Melton maintains that when he arrived at the prison unit, prison officials computed his
projected release date, and apparently, Melton did not agree with those calculations. Melton states
that he filed a time-credit dispute resolution form arguing that he was not given the full 258 days
of credit that had been ordered by the trial court for him to receive. On April 2, 2012, Melton was
provided with the prison’s response, which stated, “You were given time credit back to the date
1
These burglaries occurred 162 days and 100 days, respectively, before the entry of the judgments.
2
of the offense. We cannot give time credit before the date you committed the offense.”2 The
letter also stated, “This concludes the administrative processing of this complaint by the Texas
Department of Criminal Justice.”
Following the denial of his time-credit complaint, Melton filed an application for a writ of
habeas corpus alleging that (1) the State failed to abide by the plea agreement, (2) his sentence was
illegal, (3) his plea was involuntary, and (4) he received ineffective assistance of trial counsel. See
generally Ex parte Melton, Nos. 44,431-02, 44,431-03 (Tex. Crim. App. Feb. 26, 2003) (original
proceeding), available at http://www.search.txcourts.gov/Case.aspx?cn=WR-44,431-02&coa=
coscca and http://www.search.txcourts.gov/Case.aspx?cn=WR-44,431-03&coa=coscca. After
determining that Melton had alleged facts in his habeas application which, if true, might entitle
him to relief, the Texas Court of Criminal Appeals issued an order requiring the trial court to
address the issues in Melton’s application and then to issue findings of fact and conclusions of
law. On January 8, 2003, the trial court issued its findings and conclusions stating, in part, that
(1) the 258 days of time credit was, indeed, part of the plea agreement, (2) the 258 days of time
credit would result “in a sentence begin date which predates the offense date by 157 days,”
(3) Melton was entitled to the 157 days’ credit, and (4) nunc pro tunc judgments should be entered
to effectuate the plea agreement and ensure that Melton received the number of days’ credit he
was promised at the time of his plea agreement. On that same day, the trial court entered nunc pro
2
Taking into account the offenses and sentence dates from Melton’s judgments, if it is assumed he was arrested on the
dates of the offenses, he could have served 162 days in jail for the January 24 offense and 100 days for the March 27
offense.
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tunc judgments in each case and reduced Melton’s sentences from twenty years’ imprisonment to
nineteen years and 200 days’ imprisonment, and also gave Melton the 258 days of time credit.
In June 2010, Melton filed motions for the entry of judgments nunc pro tunc with the trial
court in cause numbers 20570 and 20572, asking the trial court to comply with the original plea
agreements of July 5, 2001. In sum, Melton asked the trial court to correct the January 8, 2003,
nunc pro tunc judgments that it had entered following Melton’s case for habeas corpus relief so
that they would reflect the original twenty-year sentences with 258 days of time credit, as opposed
to the nineteen years and 200 days sentences with 258 days of time credit. On November 15, 2010,
Melton filed his first petition for writ of mandamus in this Court asking that we order the trial court
to grant his motions seeking entry of nunc pro tunc judgments of conviction in both cases. See
Ex parte Melton, No. 06-10-00212-CR, 2010 WL 4922917 (Tex. App.—Texarkana Dec. 2, 2010,
orig. proceeding) (mem. op., not designated for publication). This Court denied Melton’s petition
on the basis that he had failed to present any evidence showing that the trial court had disposed of
his motions.
On August 7, 2015, Melton filed the current petition for writ of mandamus wherein he
maintains that the trial court’s January 8, 2003, nunc pro tunc judgments were improper because
“what the trial court did on January []8,th [sic] 2003 did not correct the error, which was judicial
in nature, it only: (1) created a clerical error [and] (2) imposed more sentences un-authorized by
law.” Pursuant to his mandamus petition, Melton asks this Court to require the trial court to vacate
its January 8, 2003, nunc pro tunc judgments of conviction and remand both cases back to the trial
court so that all of the original claims in his petition for writ of habeas corpus can be properly
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addressed. Melton attached several documents to his petition for writ of mandamus, including
copies of the original judgments, the trial court’s findings of fact and conclusions of law, the trial
court’s January 8, 2003, judgments nunc pro tunc, and his motions to enter nunc pro tunc
judgments. On August 24, 2015, this Court received the trial court’s response to Melton’s petition
stating, in part,
Now Relator objects to the new judgment allowing for 258 days credit by
adjusting the overall length of his sentence from 20 years in prison with 258 days
credit to 19 years with 200 days credit3 – the judgment the court entered in response
to the writ of habeas corpus in an attempt to give Relator the full benefit of his plea
bargain. The trial court recognizes that a nunc pro tunc is authorized to correct
clerical errors and not to change the oral pronouncement of sentence rendered.
Regardless of whether the nunc pro tunc was the appropriate method of
attempting to give Relator the benefit of his initial plea, it is, and remains the trial
court’s intention to render judgment in a way that allows for the full credit agreed
to in the original plea.
II. Analysis
It is Melton’s burden to properly request and show entitlement to mandamus relief. See
Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding)
(per curiam) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the
extraordinary relief he seeks.”). To establish a right to mandamus relief, Melton must show both
that (1) there is no adequate remedy at law to address the alleged harm, and (2) the act he seeks to
compel is ministerial and not one involving a discretionary or judicial decision. See In re State
3
The nunc pro tunc judgments actually show the assessed punishment as “19 years, 200 days TDCJ-ID,” with time
credit of 258 days.
5
ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex.
Crim. App. 2007) (orig. proceeding).
Melton contends that this Court is in a position to compel the trial court to vacate the 2003
nunc pro tunc judgments because those judgments did not operate solely to remedy clerical errors
but, instead, changed the terms of the plea agreements and the original sentences. A judgment
nunc pro tunc is the appropriate means by which to make a clerical correction when the court’s
records do not mirror the judgment that was actually rendered. Alvarez v. State, 605 S.W.2d 615,
617 (Tex. Crim. App. [Panel Op.] 1980). Only errors that were not the result of judicial reasoning
are considered clerical errors. Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). The
trial court may not enter a nunc pro tunc judgment to change the court’s record to reflect what it
believes should have occurred in the original proceeding. Ex parte Dopps, 723 S.W.2d 669, 671
(Tex. Crim. App. 1986) (per curiam) (citing Chaney v. State, 494 S.W.2d 813, 814 n.1 (Tex. Crim.
App. 1973)). “[N]unc pro tunc orders may be used only to correct clerical errors in which no
judicial reasoning contributed to their entry.” State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim.
App. 1994).
In this case, the trial court indicated that it issued the 2003 nunc pro tunc judgments in an
attempt to “change[] the applicant’s sentence in order to credit him with the time he was entitled
to, and to effect the plea agreement.” In attempting to do so, the trial court entered judgments that
were entirely different than the ones rendered at the time of Melton’s guilty pleas. The original
judgments of conviction plainly show that Melton was to be imprisoned for a period of twenty
years on each charge and given time credit for 258 days on each charge. The nunc pro tunc
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judgments show that Melton was to serve nineteen years and 200 days’ confinement for each
offense, with a time credit of 258 days on each sentence.
While we appreciate the trial court’s effort to re-fashion the judgments of conviction in
Melton’s favor, we must conclude that the corrections were judicial (and not merely clerical) in
nature. Although following the nunc pro tunc judgments would give Melton a sentence fairly close
to what was apparently originally intended, they are not precisely the same and do not simply
correct a clerical error. This is not a circumstance involving a typographical clerical change such
as correcting a minor misspelling of a party’s name or an incorrect date of the entry of a judgment.
To the contrary, the nunc pro tunc judgments entered in this case required the trial court to exercise
judicial discretion, which resulted in completely modified sentences. A court may only correct a
final written judgment that incorrectly stated the judgment actually imposed. In this case, the
original judgments of conviction reflected the sentences that were actually imposed, albeit entered
in such a fashion that they could not be followed. The nunc pro tunc judgments entered by the
trial court on January 8, 2003, do not reflect the sentence actually imposed. A trial court entering
a void order has a ministerial duty to vacate the order. State ex rel. Thomas v. Banner, 724 S.W.2d
81, 85 (Tex. Crim. App. 1987) (orig. proceeding). Because we conclude that the trial court’s nunc
pro tunc judgments went beyond merely correcting a clerical error, they are void and should be
vacated.
III. Conclusion
We conditionally grant the writ of mandamus, directing the trial court to vacate the nunc
pro tunc judgments of conviction entered January 8, 2003. We trust that the trial court will
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promptly take this action, and the writ will issue only in the event that the trial court fails to comply
with this opinion.
Bailey C. Moseley
Justice
Date Submitted: October 6, 2015
Date Decided: October 7, 2015
Publish
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in Re: Brian K. Melton
Combined Opinion