TUCKER v. STATE (2026)

OPINION

Appellant, Michael Tucker, was convicted under a predecessor statute of super-aggravated sexual assault of a child, among other offenses. The minimum term of confinement was twenty-five years, and Appellant was ineligible for parole because the victim was under six years old at the time of the offense.¹

Appellant challenged the sufficiency of the evidence of one of his other convictions. Tucker v. State, 706 S.W.3d 379, 387 (Tex. App.—Austin 2024) (op. on reh'g) (en banc). While the case was pending at the court of appeals, the State requested a judgment nunc pro tunc to reflect Appellant's victim was under six years old at the time of the offense by adding (f)(1) as a subsection in the “Statute for Offense” box.² Id. at 390. The court of appeals held there was no error in the judgment to modify because Section 22.021(f)(1) is not an element of the offense but a punishment issue.³ Id.

The State filed a petition for discretionary review challenging the denial of its request for a judgment nunc pro tunc, which we granted. After the court of appeals decided this case and after we granted review, this Court held the under-six-years-old provision is an element of the offense. See Gutierrez v. State, 710 S.W.3d 804, 809 (Tex. Crim. App. 2025). The parties now agree the State is entitled to relief. Given Appellant's concession, we need not decide whether subsection (f)(1) must be included in the judgment's “Statute for Offense” box.

We reverse the court of appeals's judgment, remand the cause to the trial court, and order the trial court to modify the judgment of conviction for Count I in appellate cause number 03-22-00697-CR (trial court cause number D-1-DC-21-904045) to show “PC 22.021(a)(2)(B), (f)(1)” in the “Statute for Offense” box.

I have two problems with the Court's opinion that prevent me from joining it.

First, I disagree that we can avoid deciding “whether the notation [of the complete statute the defendant has been convicted of violating, including every applicable subsection] must be included [on the line provided for that information by the Office of Court Administration's form for] the judgment of conviction[ ].” Majority Opinion at ––––. The trial court's judgment in this case reflects, in the field provided for what it calls “Statute for Offense[,]” that Appellant committed an offense under Section 22.021(a)(2)(B), but no reference is made there to Subsection (f)(1), at least not on that line.

Subsection (f)(1), at the time this offense was committed, provided that the minimum term of confinement for an offense committed under Section 22.021 would be increased to “25 years if” the victim was “under six years of age at the time the offense [was] committed[.]” See former Tex. Penal Code § 22.021(f)(1) (amended by Acts 2025, 89th Leg., ch. 557 (H.B. 1422), § 21, eff. Sept. 1, 2025). And, indeed, the third page of the trial court's judgment in this case affirmatively reflected, underneath a heading described as “Execution of Sentence[,]” that the trial court made a special finding that, at the time of the offense, the child victim was under six years old. So, it is not as though the judgment in this cause wholly failed to reflect a finding on the age of the victim.

Our recent decision in Gutierrez v. State, 710 S.W.3d 804 (Tex. Crim. App. 2025), complicates matters somewhat because, there, this Court decided that Subsection (f)(1) “operates more as an element of a super aggravated offense, rather than a [mere] punishment issue.” 710 S.W.3d at 809.¹ And Article 42.01, Sec. 1(13) demands that a judgment “shall reflect” ․ “[t]he offense for which the defendant was convicted[.]” Tex. Code Crim. Proc. art. 42.01, § 1(13). So, at least arguably, because this Court has said that Subsection (f)(1) “operates more as an element of a super aggravated offense,” it should have been included on the line of the judgment announcing the “Statute for Offense[.]” But the Court now seems to say we can simply avoid resolving that issue because “[t]he parties now agree” how that issue should be resolved, at least in this case. Majority Opinion at ––––. But that is, in my view, manifestly not so.

Decisions made by courts are an exercise of the judicial power. Judges exercise the judicial power; the parties to litigation do not. This Court has said before that we “must still independently examine [an] error confessed because our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.” Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010) (internal quotation marks and citation to authority omitted).

Second, I cannot join the Court's ultimate disposition of the case. I do not understand the point of remanding this cause to the trial court to modify the judgment of conviction. It seems to me this is the least preferable of three alternative dispositions. First, in light of this Court's opinion in Gutierrez v. State, 710 S.W.3d 804 (Tex. Crim. App. 2025), we could, after pointing out that the part of the court of appeals’ opinion that suggests that Subsection 22.021(f)(1) is not an element of the offense but a punishment issue, simply summarily remand the cause to the court of appeals for further consideration of the issue the Court itself avoids today. That would be my preferred disposition.

Alternatively, since this Court seems to regard the parties’ agreement as dispositive, the Court could simply modify the judgment on its own, under Rule 78.1(b) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 78.1(b) (“The Court of Criminal Appeals may ․ modify the lower court's judgment and affirm it as modified[.]”). But the Court does not choose that option. Instead, the Court chooses what to my mind is the least desirable alternative by remanding the cause to the trial court to make a modification that we could make ourselves. I am concerned that this third option runs an unacceptable risk of potentially reigniting the appeal itself.

For these reasons, I respectfully dissent.

FOOTNOTES

1.   See Tex. Penal Code § 22.021(a)(2)(B), (f)(1) (2017); Tex. Gov't Code § 508.145(a)(4) (2017). In 2025, the legislature amended Section 22.021(f)(1) and changed the age from under six years old to under ten years old. Act of May 27, 2025, 89th Leg., R.S., ch. 557, § 21, sec. 22.021(f)(1), 2025 Tex. Sess. Law Serv. 1313, 1323 (codified at Tex. Penal Code § 22.021(f)(1)).

2.   The trial court did not have jurisdiction to enter a nunc pro tunc judgment because the case was on appeal. See Tex. R. App. P. 25.2(g) (“Once the record has been filed in the appellate court, all further proceedings in the trial court – except as provided otherwise by law or by these rules – will be suspended until the trial court receives the appellate-court mandate.”).

3.   The judgment includes a reference to the victim being under six years old at the time of the offense, but it is in the sex-offender registration part of the judgment.

1.   I joined most of the Court's opinion in Gutierrez, but I did not join that part of the Court's opinion that contained this quote.

Schenck, P.J., delivered the opinion of the Court in which Richardson, Newell, Keel, and McClure, JJ., joined.

Newell, J., filed a concurring opinion. Finley and Parker, JJ., concurred. Yeary, J., filed a dissenting opinion. Walker, J., dissented.