THE STATE OF TEXAS v. ROBERT JOSEPH SCHMITT

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Court of Appeals of Texas, Dallas.

THE STATE OF TEXAS, Appellant v. ROBERT JOSEPH SCHMITT, Appellee

No. 05–10–00337–CR

Decided: March 24, 2011

Before Justices Morris, Francis, and Murphy

MEMORANDUM OPINION

Opinion By Justice Murphy

Nine years after Robert Joseph Schmitt was sentenced to consecutive twenty-year prison terms on two counts of aggravated sexual assault of a child, the trial court signed a nunc pro tunc order deleting the cumulation of the sentences and ordering the sentences to run concurrently.   In a single issue, the State contends an order nunc pro tunc is not the proper vehicle to re-open the trial court's prior determination to cumulate Schmitt's sentences and therefore, the trial court erred in granting Schmitt's motion for judgment nunc pro tunc.   We vacate the trial court's order granting the motion for judgment nunc pro tunc and reinstate the trial court's original judgment and sentence.

Schmitt was indicted on September 27, 2000 for aggravated sexual assault of a child offenses occurring on or about June 9, 1997 (Count I) and November 1, 1996 (Count II).1  On August 9, 2001, a jury found Schmitt guilty on both counts and assessed punishment at twenty-years confinement and a $10,000 fine for each count.   At the oral pronouncement of Schmitt's sentences, the trial court stated “[t]he judgment and sentence in count two will begin after the judgment and sentence in count one has been satisfied or otherwise discharged․”  The written judgment for each count accurately captured the trial court's decision to cumulate the sentences.   Schmitt's convictions were affirmed on appeal.   See Schmitt v. State, No. 12–01–00306–CR, 2003 WL 22411210, at *1 (Tex.App.—Tyler Oct. 22, 2003, no pet.) (mem. op., not designated for publication).   In none of Schmitt's twenty-three appellate issues did he challenge the cumulative nature of his sentences.

In August 2004, Schmitt filed a pro se application for writ of habeas corpus, alleging he was denied effective assistance of counsel and multiple errors by the trial court.   The Texas Court of Criminal Appeals denied the application on February 16, 2005.2  Five years later, Schmitt filed a subsequent application for writ of habeas corpus, alleging the trial court's decision to cumulate the two sentences was improper, rendering his sentences void.   The court of criminal appeals dismissed the application.   See Tex.Code Crim. Proc. Ann. art. 11.07, § 4(a) (West Supp.2010).

On February 3, 2010, Schmitt filed a motion for judgment nunc pro tunc, asserting the cumulation of his sentences was illegal and asking the trial court to “delete the cumulation order” in the August 9, 2001 judgment and sentence for Count II. On March 1, 2010, the trial court granted Schmitt's motion and signed an order nunc pro tunc.   The order provided “the Cumulation Order [in the judgment for Count II] is illegal and unauthorized by law.”   The trial court ordered Schmitt's sentence in Count II to run concurrently with his sentence for Count I.

On appeal, the State argues the trial court improperly used a nunc pro tunc order to change the trial court's previous decision to cumulate Schmitt's sentences and that the original judgment did not contain any clerical error related to Schmitt's sentences that needed to be corrected by such an order.   Because a nunc pro tunc order may not be used to “re-visit and change a previous judicial determination,” the State asserts the trial court erred in granting Schmitt's motion for judgment nunc pro tunc.   We agree.

A nunc pro tunc order is the appropriate avenue to make a correction when the court's records do not mirror the judgment that was actually rendered.   See Collins v. State, 240 S.W.3d 925, 928 (Tex.Crim.App.2007);  Smith v. State, 15 S.W.3d 294, 298 (Tex.App.—Dallas 2000, no pet.).   A nunc pro tunc order is improper if it has the effect of making a new or independent order;  it may not be used to modify or add provisions to an order previously entered.  Smith, 15 S.W.3d at 299 (citing Ex parte Dickerson, 702 S.W.2d 657, 658 (Tex.Crim.App.1986)).   Any corrections made by entry of a nunc pro tunc order “can be only as to what was done and not as to what should have been done.”   Ex parte Dopps, 723 S.W.2d 669, 671 (Tex.Crim.App.1986) (per curiam);  Smith, 15 S.W.3d at 299.

A nunc pro tunc order may not be used to correct judicial errors, that is, errors that are a product of judicial reasoning or determination.   See State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App.1994);  Smith, 15 S.W.3d at 299.   Rather, a nunc pro tunc judgment is used to fix clerical errors “in which no judicial reasoning contributed to their entry, and for some reason were not entered of record at the proper time.”  Bates, 889 S.W.2d at 309;  see also Collins, 240 S.W.3d at 928.   The “correction process” insures that the record truthfully reflects what actually occurred.  Smith, 15 S.W.3d at 299.   It does not allow for or permit readjudication or the reopening of a controversy.  Id. The question of whether an error is clerical or judicial in nature is a question of law.  Id.

A trial court's decision to cumulate a defendant's sentences is a judicial determination.   See Ex parte Madding, 70 S.W.3d 131, 135 n.8 (Tex.Crim.App.2002) (improper cumulation order is due-process error, not “mere clerical error”);  cf.  Tex. Penal Code Ann. § 3.03(b)(2)(A) (West Supp.2010) (providing for cumulation of multiple sentences in convictions for aggravated sexual assault);  Barrow v. State, 207 S.W.3d 377, 380 (Tex.Crim.App.2006) (noting legislature's decision to assign cumulation determination to trial court under section 3.03);  Owens v. State, 96 S.W.3d 668, 672 (Tex.App.—Austin 2003, no pet.)  (“[T]rial court has discretion to cumulate sentences under section 3.03(b) when there is some evidence that the offenses occurred after September 1, 1997.”).   A trial court may correct a cumulation order nunc pro tunc to add descriptive details of the prior offenses inadvertently omitted from the trial court's first cumulation order.   See Williams v. State, 675 S.W.2d 754, 765 n.6 (Tex.Crim.App.1984) (op. on reh'g);  see also Strahan v. State, 306 S.W.3d 342, 353 (Tex.App.—Fort Worth 2010, pet. ref'd) (in cumulation order involving seven counts, judgment nunc pro tunc added specificity and was proper to correct omission regarding which case's sentence would be served first).

Here, the record is clear the nunc pro tunc order was not correcting a clerical error in the original judgment for Count II. Rather, the nunc pro tunc order, signed nine years after the date of the original judgment, improperly modified a product of judicial reasoning;  it deleted the cumulative nature of Schmitt's sentences and directed the sentences to run concurrently.   Because the trial court acted to change a judicial determination, rather than correct a clerical error, it had no authority to sign the order nunc pro tunc.   The order is therefore void as a matter of law.   See Smith, 15 S.W.3d at 301.   Accordingly, we conclude the trial court erred in granting Schmitt's motion for judgment nunc pro tunc.   We sustain the State's sole issue.

We vacate the trial court's order granting the motion for judgment nunc pro tunc and reinstate the trial court's original August 9, 2001 judgment and sentence on Count II.

FOOTNOTES

FN1. The two instances of sexual assault were joined in a single indictment.   At trial, the complaining witness testified the sexual assaults began in the fall of 1996 and concluded in the summer of 1998..  FN1. The two instances of sexual assault were joined in a single indictment.   At trial, the complaining witness testified the sexual assaults began in the fall of 1996 and concluded in the summer of 1998.

FN2. On April 14, 2006, Schmitt filed a pro se federal application for a writ of habeas corpus, also alleging ineffective assistance of counsel and various trial court errors.   The application was dismissed as time barred.   The Fifth Circuit Court of Appeals affirmed the dismissal.   See Schmitt v. Zeller, 354 F. App'x 950, 951 (5th Cir.2009)..  FN2. On April 14, 2006, Schmitt filed a pro se federal application for a writ of habeas corpus, also alleging ineffective assistance of counsel and various trial court errors.   The application was dismissed as time barred.   The Fifth Circuit Court of Appeals affirmed the dismissal.   See Schmitt v. Zeller, 354 F. App'x 950, 951 (5th Cir.2009).

MARY MURPHY JUSTICE

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