Johnston v. State

DICE, Judge.

Appellant brings this appeal from the entry of three orders entered nunc pro tunc correcting clerical errors in the judgments entered in Cause Nos. 2975, 2977 and 2978 in the district court of Hood County so as to make same reflect the judgments pronounced at the trial adjudging him guilty of the offense of burglary and assessing his punishment at confinement in the penitentiary for 12 years in each case.

The orders were entered upon motion of the state to correct the judgments which had been previously entered in the three numbered causes at a former term upon appellant’s plea of *80guilty, before the court without a jury which judgments as entered found appellant guilty of burglary and repetition of certain offenses and recited that his punishment be assessed at confinement in the penitentiary for a term of “not less than 2 nor more than 12 years in each case.”

Appellant sought discharge from the penitentiary by habeas corpus, and while his application was pending in this court, motions were filed by the district attorney in the trial court to correct the judgments, alleging that the judgments actually pronounced by the court found appellant guilty of burglary and assessed his punishment at confinement in the penitentiary for 12 years and that in recording the judgments in the minutes of the court the clerk through error recorded them as assessing appellant’s punishment at a term of “not less than two nor more than twelve years in the penitentiary.”

After hearing, the state’s motions were granted and the judgments were corrected by nunc pro tunc orders. In Johnston v. State, 166 Texas Cr. Rep. 65, 311 S.W. 8d 823, we disposed of appellant’s appeal from the entry of these nunc pro tunc judgments or orders and set them aside “without prejudice to the right of the state to again present its motions, and of the trial court to hear, consider and determine same, appellant and his counsel having the opportunity to be present and offer testimony on the question of the punishment actually assessed at the trial.”

In the same opinion we denied appellant’s prayer for relief by habeas corpus.

In the former appeal the nunc tunc entries were set aside because appellant was not represented by counsel at the hearing.

Subsequent to our opinion new motions were filed by the district attorney to correct the judgments for the same reasons as were alleged in the motions previously filed in the three causes.

It was after a hearing on such motions, at which appellant and his counsel were present, that the court entered nunc pro tunc the three judgments from which appellant brings this appeal.

The evidence adduced at the hearing clearly sustains the state’s contention that the judgments actually pronounced by *81the court adjudged appellant guilty of burglary and assessed his punishment at confinement in the penitentiary for a definite term of 12 years in each case and that through error the judgments were recorded in the minutes as assessing the punishment at confinement in the penitentiary for a term of “not less than two nor more than twelve years in the penitentiary.”

Appellant insists that the court was without authority to enter the judgments nunc pro tunc because he had lost control of the judgments and the matter sought to be corrected was one not only as to form but as to substance.

A trial court is not without authority to correct the minutes of his court so as to make them truly reflect the judgments actually pronounced. Henry v. State, 162 Texas Cr. Rep. 6, 279 S.W. 2d 877. Errors in the entry of a judgment or sentence are subject to correction by nunc pro tunc entry in order to make the court minutes correctly reflect the order actually made by the trial judge at the trial. Ex Parte Hatfield, 156 Texas Cr. Rep. 92, 328 S.W. 2d 788. It has been held that if, in fact, a definite punishment was assessed and the entry of a judgment showing otherwise was by a clerical error, the judgment may be corrected by the court which rendered it under its inherent powers by nunc pro tunc entry of the judgment as the same was actually rendered in the case when tried. Ex Parte Hannen, 155 Texas Cr. Rep. 10, 228 S.W. 2d 864, and Ex Parte Stansbury, 155 Texas Cr. Rep. 73, 231 S.W. 2d 431.

Appellant insists that since the judgments entered nunc pro tune made no provision for cumulation of the punishment and the sentences in the cases which provided for cumulation were not reformed, the sentences did not conform to the judgments.

It was not necessary that the judgments provide for cumu-lation of the punishment as this could be done in the sentences pronounced. Ex Parte Moseley, 30 Texas App. 338, 17 S.W. 418, and Ex Parte Crawford, 36 Texas Cr. Rep. 180, 36 S.W. 92. The sentences did provide for cumulation of the punishment which was sufficient.

Under the record the trial court was authorized to enter the three judgments nunc pro tunc. No attempt was made to appeal from the conviction in either of the three cases and no ground for reversal thereof is shown.

*82The trial court’s order correcting the three judgments is affirmed and the relief prayed for by habeas corpus is again denied.

Opinion approved by the Court.