                                                                 ACCEPTED
                                                            07-15-00165-CV
                                               SEVENTH COURT OF APPEALS
                                                         AMARILLO, TEXAS
                                                       7/1/2015 12:53:33 PM
                                                           Vivian Long, Clerk


     NO. 07-15-00165-CV

         IN THE                            FILED IN
                                    7th COURT OF APPEALS
    COURT OF APPEALS                  AMARILLO, TEXAS
SEVENTH JUDICIAL DISTRICT           7/1/2015 12:53:33 PM
    AMARILLO, TEXAS                      VIVIAN LONG
                                            CLERK


    DANNY LEE SHEAD,
        Appellant

            VS.

   THE STATE OF TEXAS,
         Appellee


 APPEAL IN CAUSE NO 8461-B
IN THE 181ST DISTRICT COURT
OF RANDALL COUNTY, TEXAS


    BRIEF OF APPELLEE


                  JAMES A. FARREN
                  Randall County Criminal District Att’y

                  WARREN L. CLARK
                  wclark@randallcounty.org
                  clarkwl3@gmail.com
                  Assistant Criminal District Attorney
                  SBN 04300500
                  2309 Russell Long Boulevard, Suite 120
                  Canyon, Texas 79015
                  Tel. (806) 468-5570
                  Fax (806) 468-5566

                  Attorney for Appellee
                          IDENTITY OF PARTIES AND COUNSEL

PARTIES TO TRIAL COURT JUDGMENT:

The State of Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Appellee)

Danny Lee Shead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant (Appellant)

TRIAL AND APPELLATE COUNSEL:

Danny Lee Shead . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pro Se Defendant / Appellant
TDCJ # 1484832
Tulia Transfer Unit
4000 Hwy 86 West
Tulia, Texas 79088

Warren L. Clark . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellee
Appellate Chief
Assistant Criminal District Attorney
Randall County Criminal District Attorney’s Office
2309 Russell Long Blvd., Suite 120
Canyon, Texas 79015




                                                       ii
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

         Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

         Constitutions And Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

         Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         A.       Nature Of The Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         B.       Course Of Proceedings and Disposition . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Issue:            Whether there is error apparent on the face of the record. . . . . . . . . . 5

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                              iii
                                     INDEX OF AUTHORITIES

CASES:

Andrews v. Koch, 702 S.W.2d 584 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Barton v. Gillespie, 178 S.W.3d 121
      (Tex.App.-Houston [1st Dist.] 2005, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 8

Butler v. Cont’l Airlines, Inc., 31 S.W.3d 642
      (Tex.App.-Houston [1st Dist.] 2000, pet. denied) . . . . . . . . . . . . . . . . . . . . . 8

Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Harrell v. State, 286 S.W.3d 315 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7

Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680
      (Tex.App.-Houston [1st Dist.] 1997, no writ) . . . . . . . . . . . . . . . . . . . . . . . . 9

Shead v. State, No. 07-15-00084-CV
     (Tex.App.-Amarillo March 24, 2015, no pet.) (unpublished) . . . . . . . . . . 1-2

Sorsby v. State, 624 S.W.2d 227
      (Tex.App.-Houston [1st Dist.] 1981, no writ) . . . . . . . . . . . . . . . . . . . . . . . 7-8

CONSTITUTIONS AND STATUTES

TEX. CODE CRIM. PROC. ANN. art. 103.009 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. GOV’T CODE ANN. § 501.014(e) (Vernon Supp. 2009) . . . . . . . . . . . . . . 1

RULES

TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3



                                                        iv
TEX. R. APP. PROC. 38.2(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2




                                                    v
                          STATEMENT OF THE CASE

A.    NATURE OF THE CASE

      This is a restricted appeal arising from an order to withdraw inmate funds under

Government Code section 501.014(e).

B.    COURSE OF PROCEEDINGS AND DISPOSITION

      Appellant was convicted of Sexual Assault in Cause Number 8461-B on April

1, 1996. (C.R. 1: 5-7). In February 2010, the trial court entered an order to withdraw

funds from Appellant’s inmate trust account pursuant to Government Code section

501.014(e). TEX. GOV’T CODE ANN. § 501.014(e) (Vernon Supp. 2009). (C.R. 1: 8)

 A Nunc Pro Tunc Order To Withdraw Funds was entered and filed of record by the

trial court on May 22, 2014. (C.R. 1:14-15) On July 21, 2014, Appellant filed his

Objection to Nunc Pro Tunc Order to Withdraw Funds. (C.R. 1:16-19) Appellant filed

an additional motion styled Motion To Rescind Order to Withdraw Inmate Funds and

Return All Monies Garnished Back to Inmate on September 23, 2014. (C.R. 1:21-24)

On January 8, 2015, the trial court entered its Order Denying Defendant’s Objections

to Nunc Pro Tunc Order to Withdraw Funds and Motion To Rescind Order to

Withdraw Inmate Funds. (C.R. 1:26) Appellant attempted to appeal this order but it

was dismissed for want of jurisdiction. See Shead v. State, No. 07-15-00085-CV




                                          1
(Tex.App.-Amarillo March 24, 2015) (not designated for publication). Subsequently,

less than one month later, Appellant gave notice of his restricted appeal in this cause.

                                ISSUE PRESENTED

      Based on TEX. R. APP. P. 38.2(a)(1)(B), Appellee asserts that the following is

a correct statement of the issue presented:

      Whether there is error apparent on the face of the record as it pertains to the trial

      court’s order withdrawing inmate funds.




                                            2
                               NO. 07-15-00165-CV

                                 IN THE
                            COURT OF APPEALS
                        SEVENTH JUDICIAL DISTRICT
                            AMARILLO, TEXAS


                              DANNY LEE SHEAD,
                                  Appellant

                                        VS.

                             THE STATE OF TEXAS,
                                   Appellee


                        APPEAL IN CAUSE NO. 8461-B
                        IN THE 181ST DISTRICT COURT
                        OF RANDALL COUNTY, TEXAS


                             BRIEF OF APPELLEE


TO THE HONORABLE JUSTICES OF THE SEVENTH COURT OF APPEALS:

      Based on TEX. R. APP. P. 38.2, Appellee, The State of Texas (“Appellee”) files

its brief in the above-entitled and numbered cause.




                                         3
                              STATEMENT OF FACTS

      The facts necessary to adequately address the issue are contained in the

Statement of the Case.

                         SUMMARY OF THE ARGUMENT

      Appellant claims that his due process rights were violated when the trial court

signed and entered a nunc pro tunc order to withdraw funds from his inmate trust

account. (Appellant’s Brief at p. 10) He argues that the trial court was without plenary

power to do so. However, a trial court may, at any time, correct a clerical error by

entering the appropriate nunc pro tunc judgment or order. As long as the correction

pertains to a discrepancy between the judgment or order entered and actual record, and

does not arise from judicial reasoning or determination, the trial court is not prohibited

from entering the nunc pro tunc ruling once the trial court’s plenary power has

expired. Here, the trial court merely corrected the amount due under a certified bill

of cost pertaining to the judgment of conviction entered against Appellant. In fact, the

corrected amount inured to the benefit of Appellant since it authorized withdrawal of

a lesser sum, giving due credit to payments already received and deleting court-

appointed attorney’s fees. A facial review of the record reveals no error, save and

except for the inclusion of a fine of $1,000.00 which should be deleted since it was not

imposed by the trial court when Appellant was sentenced on April 1, 1996.

                                            4
                                      ARGUMENT

Issue:         Whether there is error apparent on the face of the record
               as it pertains to the trial court’s order withdrawing inmate
               funds.

                 Appellant was not deprived of procedural due process

         Appellant’s due process concerns were addressed by the Supreme Court in

Harrell v. State, 286 S.W.3d 315 (Tex. 2009). Although the court held that an inmate

is entitled to notice and an opportunity to be heard regarding an order like the one here

at issue, it also held that neither need occur before funds are actually withdrawn.

Harrell v. State, 286 S.W.3d at 321. As for the amount of process due, the Harrell

court balanced three factors: 1) the privacy interest affected; 2) the risk of erroneous

deprivation of that interest through the procedures used and the probable value of

additional or substitute procedural safeguards and 3) the government’s interest,

including fiscal and administrative burdens, that the substitute or additional procedure

would entail. Id., at 320-21 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

In both Harrell and the present case, the interest affected is the money in the inmate’s

trust account. Harrell v. State, 286 S.W.3d at 319.

         As for the second factor, the Harrell court stated that any risk of an erroneous

deprivation was modest because the defendant was notified of the costs assessed when

he was sentenced and was free at that time to contest them. Id., at 320. Here, unlike

                                             5
the judgment in Harrell, the amount of costs was not written into Appellant’s

judgment. Appellant nonetheless had a chance, and in fact took advantage of that

chance, to question the costs when he filed his motions to rescind the withholding

orders. Although Appellant could have assailed the type of costs assessed, he has only

claimed, in a multifarious point, that the costs were assessed too late. (Appellant’s

Brief at 8-10).

      The District Clerk is required to keep a record of each fee or item of cost

charged for a service rendered in a criminal case. TEX. CODE CRIM. PROC. ANN. art.

103.009 (Vernon 2006). A statement of an item of cost in a fee record is prima facie

evidence that the statement is correct. Id., at art. 103.009(c). A cost is payable by a

defendant when a written bill is produced, or is ready to be produced, containing the

items of cost. Id., at art. 103.001 (Vernon 2006). Appellant was specifically ordered

in the judgments to pay costs of court. (C.R. 1:6) Thus, regardless of whether the

amount of costs were written vel non on Appellant’s judgment, he was ordered to pay

them at the time he was convicted and they became due when the Bill of Costs was

produced. Even though Appellant may not have learned of the amount and type of

costs as early as Harrell did, he still had an opportunity to contest them, which he did.

Accordingly, as in Harrell, any risk of an erroneous deprivation of rights was modest.

Harrell v. State, 286 S.W.3d at 320. (Of course, the same cannot be said regarding the

                                           6
actual fine assessed against Appellant. He was informed of same at the time of his

sentencing in open court and remained aware of his obligation, regardless of the

duration of time which had passed from the time of his formal sentencing to the trial

court’s entry of the nunc pro tunc order withdrawing inmate funds.)

      Regarding the third factor, the Harrell court noted that the State’s interest is in

the efficient recoupment of court costs. Id. In balancing all three factors together, the

court determined that an inmate is entitled to notice, which Harrell received through

a copy of the notification of withdrawal of funds, and an opportunity to be heard,

which Harrell received via his motion to rescind the withdrawal notification. Id.

Harrell’s motion to rescind was considered, and denied, by the trial court. According

to the Supreme Court, no other process was due. Id. Likewise, Appellant received a

copy of the orders to withdraw funds and his contest of those orders was considered

and denied by the trial court. He thus has received all that due process requires.

      As for Appellant’s claim that the State is prevented from collecting the court

costs at issue since it waited fourteen years to do so, this argument has no merit.

Essentially, Appellant is suggesting that theories such as adverse possession, estoppel

or laches somehow apply to the State and prevent it from collecting these fees. The

suggestion has no merit. See Sorsby v. State, 624 S.W.2d 227, 236 (Tex.App.-Houston




                                           7
[1st Dist.] 1981, no writ). Delay in seeking recoupment from the inmate’s trust account

poses no bar to it.

               The trial court was permitted to enter an order on the
                  nunc pro tunc order to withdraw inmate funds

       Pursuant to Rule 329(b) of the Texas Rules of Procedure, the trial court has

plenary power for 30 days after a judgment or appealable order is signed to grant a

new trial or to vacate, modify, correct or reform same. TEX. R. APP. PROC. 329b(d).

Once the trial court’s plenary power expires, it cannot set its judgment aside except

by a bill of review for sufficient cause. TEX. R. APP. PROC. 329b(f); Escobar v.

Escobar, 711 S.W.2d 230, 231 (Tex. 1986); Barton v. Gillespie, 178 S.W.3d 121, 126

(Tex.App.-Houston [1st Dist.] 2005, no pet.). A clerical error is a discrepancy between

the entry of the judgment, order or supporting document in the record and the

judgment, order or document actually rendered or entered. It does not arise from

judicial reasoning or determination. Barton, 178 S.W.3d at 126 (citing to Andrews v.

Koch, 702 S.W.2d 584, 585 (Tex. 1986)).

       On the flip side, a judicial error occurs in the rendering, as opposed to the

entering, of a judgment or order. Escobar, 711 S.W.2d at 231. It arises from a mistake

of law or fact that requires judicial reasoning to correct. Butler v. Cont’l Airlines, Inc.,

31 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). The record must



                                             8
be clear and convincing that a clerical error has been made. See Riner v. Briargrove

Park Prop. Owners, Inc., 976 S.W.2d 680, 683 (Tex.App.-Houston [1st Dist.] 1997,

no writ). Evidence in support of the entry of a nunc pro tunc order may be supported

by reference to oral testimony given by witnesses, written documents, previous

judgments, docket entries or the trial judge’s personal recollection. Riner, 976 S.W.2d

at 683.

      In the case at bar, the discrepancy corrected is simply the amount of court costs,

fees and fine owed by Appellant as a direct result of his conviction for Sexual Assault

after having given him due credit for amounts he had paid from the date of entry of

original judgment, as well as deleting court appointed attorney’s fees. (C.R. 1:13) The

fact that Appellant may have discharged the actual sentence imposed back in 1996 did

not eliminate his liability for those amounts assessed as court costs and mandatory

fees. However, the inclusion of the $1,000.00 fine does not constitute a discrepancy

which is amenable to correction by way of a nunc pro tunc order since it was not

imposed by the trial court as part of Appellant’s sentence back on April 1, 1996. To

the extent that the order to withdraw funds commanded the withdrawal of a minimal

amount of court costs and the totality of the court-imposed fine, to the exclusion of

court-appointed attorney’s fees and fine, there is no plain error in the enforcement of

said order.

                                          9
                                      PRAYER

      WHEREFORE, Appellee, the State of Texas, respectfully requests that this

Court affirm the judgment of the trial court in all respects.

                                               Respectfully submitted,

                                               James A. Farren
                                               Randall County Criminal
                                               District Attorney

                                               Warren L. Clark
                                               Warren L. Clark
                                               Appellate Chief
                                               clarkwl3@gmail.com
                                               wclark@randallcounty.org
                                               Assistant Criminal District Att’y
                                               SBN 04300500

                                               2309 Russell Long Boulevard, Suite 120
                                               Canyon, Texas 79015
                                               Tel. (806) 468-5570
                                               Fax (806) 468-5566


                        CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing brief consists of a total of 2,377 words,
prepared with WordPerfect software, 14 point Times New Roman font.

                                               Warren L. Clark
                                               Warren L. Clark




                                          10
                           CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing brief was served
upon Appellant by mailing a copy to Danny Lee Shead, TDCJ # 1484832, Tulia
Transfer Unit, 4000 Hwy 86 West, Tulia, Texas on this the 1st day of July, 2015.

                                              Warren L. Clark
                                              Warren L. Clark




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