Ex Parte John Hernandez v. <<

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Court of Appeals of Texas, Fort Worth.

Ex Parte John Hernandez

NO. 02-15-00277-CR

Decided: January 28, 2016



Relator John Hernandez appeals the denial of his application for writ of habeas corpus.  We affirm.

Factual and Procedural Background

Hernandez was involved in a one-car accident on March 18, 2012, in Denton.  Officer Bryan Huschke, who was dispatched to the scene of the accident a few minutes later, observed that Hernandez's pickup had been driven into the grassy median separating the service road from I–35E and had struck a road sign and a collapsible guard rail, causing damage to the vehicle's front end.  Despite the physical evidence suggesting otherwise, Hernandez reported to the officer that his pickup had “just stopped.”  Officer Huschke also noticed that Hernandez showed signs of intoxication, including red, watery, droopy eyes, slurring incoherent speech, and a strong odor of alcohol on his breath.  Hernandez admitted to Officer Huschke that he was coming from a local bar where he had been drinking and that he should not have been driving home because he had had too much to drink.  When Officer Huschke asked Hernandez to rate himself on a self-intoxication scale of 0 to 10, with 0 meaning he was “stone cold sober” and 10 meaning he was “the most intoxicated he had ever been,” Hernandez rated himself a 9. Officer Huschke administered a field sobriety evaluation, which Hernandez failed.

The State filed an information against Hernandez for DWI with enhancements for a prior conviction 2 and for having a blood alcohol concentration over .15.3  See Tex. Penal Code Ann. § 49.09(a) (West Supp.2015).  On September 17, 2013, Hernandez pleaded nolo contendre in a plea deal that resulted in him receiving a sentence of 350 days' confinement, suspended for 20 months of community supervision, and a fine of $200.

The State filed a motion to revoke on July 28, 2014, alleging that Hernandez had violated the terms of his community supervision by consuming alcohol, driving without a license, driving while intoxicated, and failing to have a deep-lung analysis mechanism installed on his motor vehicle.  In April 2015, Hernandez was convicted in a separate cause of felony DWI and sentenced to 80 years' confinement.

On July 16, 2015, Hernandez filed a writ of habeas corpus.  The State did not file a response to Hernandez's writ, and the trial court denied the writ without a hearing.


I. The trial court's order denying habeas corpus relief

In his first issue, Hernandez argues that the trial court erred in failing to issue findings of fact and conclusions of law in accordance with article 11.072 of the code of criminal procedure.  See Tex.Code Crim. Proc. art. 11.072 § 7(a) (West 2015).4  The trial court's order denying Hernandez's request for habeas corpus relief stated as follows:

The Court is entitled to make a determination based on the motion and responses to the motion, based on opposing affidavits, or upon oral testimony, subject to the discretion of the Court.  Texas Code of Criminal Procedure Article 28.01(6).  This Court rules based on judicial notice of the file and considering the alleged facts in the Defendant's motion are no longer all true, that the Defense Writ of Habeas Corpus is denied.

By written order dated November 30, 2015, we abated this case to allow the trial court to clarify its order consistent with article 11.072, section 7(a).  See also Ex parte Baldez, No. 04–13–00494–CR, 2014 WL 60094 (Tex.App.–San Antonio Jan. 8, 2014, no pet.) (abating appeal and remanding case to the trial court to enter order consistent with article 11.072, section 7(a), where original order stated that appellant was “manifestly entitled to no relief” but did not state the habeas corpus petition was frivolous);  Ex Parte Enriquez, 227 S.W.3d 779, 783–84 (Tex.App.–El Paso 2005, pet. ref'd) (same).  On December 7, 2015, the trial court signed an order adopting the proposed findings of fact and conclusions of law submitted by the State.

Because the trial court has issued findings of fact and conclusions of law in compliance with article 11.072, section 7(a), Hernandez's first issue is moot.  We therefore overrule his first issue.

II. The trial court's judgment

In his second issue, Hernandez argues that the trial court's judgment is void as a matter of law because he was convicted of a crime that does not exist, namely, “DRIVING/BOATING WHILE INTOXICATED ENHANCED OFFENSE (CLASS A).”

We review a trial court's denial of the relief requested in an application for a writ of habeas corpus under an abuse of discretion standard.  See Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006), cert. denied, 549 U.S. 1052 (2006);  Ex parte Mello, 355 S.W.3d 827, 832 (Tex.App.–Fort Worth 2011, pet. ref'd);  Ex parte Karlson, 282 S.W.3d 118, 127 (Tex.App.–Fort Worth 2009, pets. ref'd).  This means that we view the record in the light most favorable to the trial court's ruling and afford great deference to its findings and conclusions.  Mello, 355 S.W.3d at 832.

In its finding of fact number nine,5 the trial court found “[t]he term ‘boating’ on [Hernandez's] judgment was a clerical error.”  Included in the trial court's finding of fact number six was a recitation to numerous documents in the record which state that Hernandez was accused of and convicted of driving while intoxicated:  complaint and information;  probable cause affidavit;  warrant for arrest;  clerk's case summary information;  clerk's case summary's docket entries of Hernandez's plea;  Hernandez's bond, trial court's order of suspension of Hernandez's driver's license;  order modifying probation;  capias warrant for Hernandez's arrest on the motion to revoke;  Hernandez's acknowledgment of alleged offenses, rights, and bond;  Hernandez's application for court-appointed attorney and financial affidavit;  and the attorney fees expense claim form.6

An error that is not a product of judicial reasoning is clerical in nature.  Alvarez v. State, 605 S.W.2d 615, 617 (Tex.Crim.App.1980).  “We will not reverse a conviction because of an obvious clerical error.”  Felder v. State, 564 S.W.2d 776, 779 (Tex.Crim.App.1978), cert. denied, 440 U.S. 950 (1979).

Hernandez's reliance on Ex Parte McDonald, No. WR–82,533–01, 2015 WL 1407315 (Tex.Crim.App. March 25, 2015) (not designated for publication) is misplaced.  The trial court in the McDonald case submitted findings of fact and conclusions of law to the court of criminal appeals that the applicant was entitled to habeas corpus relief.  2015 WL 1407315 at *1. The court of criminal appeals agreed, but not on the basis that a clerical error had occurred in the judgment convicting the applicant of “assault serious bodily injury,” a nonexistent crime.  Ex Parte McDonald, 456 S.W.3d 568, 570 (Tex.Crim.App.2015) (Richardson, J., concurring).  Rather, the court granted habeas relief in McDonald because on that record it was clear that the applicant was misled regarding the offense to which he was pleading, thereby making his plea involuntary and entitling him to relief.  Id. Here, Hernandez does not argue that his plea was involuntary or that he was misled.

Viewing the record in the light most favorable to the trial court's ruling, the record supports the trial court's finding that the inclusion of “boating” in the trial court's judgment was a clerical error.7  Such a clerical error does not render the judgment void and does not entitle Hernandez to habeas corpus relief.  See, e.g., id.  (“Under most circumstances ․ a mislabeling of the offense would not render a plea involuntary.”);  Hen ery v. State, 364 S.W.3d 915, 919 (Tex.Crim.App.2012) (holding that actions taken by the trial court subsequent to signing an order quashing the information were not void if the order was entered as the result of a clerical error);  Felder, 564 S.W.2d at 779 (holding that order overruling defendant's motion for new trial but naming incorrect person was a result of a clerical error and therefore did not warrant reversal);  Bishop v. State, 507 S.W.2d 745, 747 (Tex.Crim.App.1974) (holding that error in filing date noted on indictments resulted from a clerical error and therefore did not warrant reversal).  We therefore overrule Hernandez's second issue.


Having overruled both of Hernandez's issues, we affirm the trial court's denial of his application for writ of habeas corpus.8


1.   See Tex.R.App. P. 47.4.

2.   Hernandez had been previously convicted of Driving While Intoxicated (DWI) in November 2006.

3.   Hernandez consented to a blood test, the results of which revealed a blood alcohol level of .237.

4.   4 Section 7(a) of Article 11.072 provides as follows:If the court determines from the face of an application or documents attached to the application that the applicant is manifestly entitled to no relief, the court shall enter a written order denying the application as frivolous.  In any other case, the court shall enter a written order including findings of fact and conclusions of law.  The court may require the prevailing party to submit a proposed order.Tex.Code Crim. Proc. Ann. art. 11.072 § 7(a).

5.   The trial court's findings of fact and conclusions of law are not set forth in a separate document;  rather, on December 7, 2015, the trial court signed an order stating that the court “adopts the State's Proposed Findings of Fact and Conclusions of law [filed on December 1, 2015] as its own.”

6.   Additionally, the trial court made a conclusion of law that “the term ‘boating’ on Applicant's judgment was an innocuous clerical error on his enhanced Driving While Intoxicated judgment that does not void his conviction and should not entitle him to relief on his habeas claim.”

7.   We note that the trial court has the authority to correct such clerical errors after the expiration of its plenary power by entry of a judgment nunc pro tunc, but it has not done so.  See State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App.1994).

8.   8 This holding does not preclude the trial court from entering a judgment nunc pro tunc to remove the term “boating” from the Judgment of Community Supervision dated September 17, 2013.


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