
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-06-00668-CR


Reuben Vincent Rabsatt, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 55675, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



M E M O R A N D U M    O P I N I O N

Appellant Reuben Vincent Rabsatt appeals the district court's order overruling his
motion to set aside the entry of a nunc pro tunc judgment convicting him of engaging in organized
criminal activity.  See Tex. Penal Code Ann. § 71.02 (West Supp. 2006).  He contends that the
district court improperly used the nunc pro tunc procedure to add, after sentence had begun, an
affirmative finding that a deadly weapon was used in the commission of the offense.  See Tex. Code
Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West 2006).  Finding no error, we will affirm the order. 
Appellant pleaded guilty to an indictment accusing him of shooting Charles Miller
with a firearm with the intent to participate in a criminal combination.  On February 17, 2005,
appellant was adjudged guilty by the trial court: "[T]he evidence is sufficient to find you guilty as
charged in the indictment, and the Court finds you guilty of that offense with the affirmative finding
of a deadly weapon."  The court sentenced appellant to imprisonment for ten years.  Although the
court had expressly found that a deadly weapon was used in the commission of the offense, and the
court made a notation to that effect on its docket, that finding was not contained in the written
judgment of conviction signed by the judge.  To the contrary, the judgment indicated that an
affirmative finding regarding the use of a deadly weapon was "Not Applicable."
The omission of the deadly weapon finding from the written judgment was discovered
in March 2006, when the district court was notified that appellant had been released on parole.  On
June 20, 2006, the State filed a motion for judgment nunc pro tunc asking that "after notice and
hearing" the court correct the judgment to add the affirmative finding.  The court signed a nunc pro
tunc judgment containing the affirmative finding the day the State's motion was filed.  On
July 18, 2006, appellant moved to set aside the nunc pro tunc judgment and asked for a hearing.  The
hearing was held on October 26, 2006, after which the court overruled appellant's motion.  Appellant
then perfected this appeal. (1)
A nunc pro tunc order may be used only to correct a clerical error to which no judicial
reasoning contributed.  Jiminez v. State, 953 S.W.2d 293, 295 (Tex. App.--Austin 1997, pet. ref'd). 
The nunc pro tunc procedure may be used to alter a judgment to reflect the court's actual order or
finding, but it may not be used to add an order or finding not previously made.  Smith v. State,
15 S.W.3d 294, 299 (Tex. App.--Dallas 2000, no pet.).  Appellant argues that the omission of the
affirmative finding in the original judgment of conviction was not a clerical error.  Instead, he argues
that the judgment reflected the court's determination that an affirmative finding was not applicable. 
Appellant contends that by adding the affirmative finding to the nunc pro tunc judgment, the trial
court improperly changed its judgment and converted what had been an ordinary offense for parole
purposes into an offense with a later parole eligibility date.  See Tex. Gov't Code Ann. § 508.145(d)
(West Supp. 2006); see also id. § 508.149(a)(1).
A substantially identical situation was presented to the Court in Curry v. State,
720 S.W.2d 261 (Tex. App.--Austin 1986, pet. ref'd).  In that case, the trier of fact affirmatively
found that a firearm or other deadly weapon had been used during the commission of the offense,
but the finding was not entered in the original judgment.  Id. at 262.  After the defendant was
released on parole, the trial court signed a nunc pro tunc judgment containing the affirmative finding
and ordered the defendant returned to custody.  Id.  The Court affirmed the nunc pro tunc order after
concluding that the omission of the affirmative finding in the original judgment was a clerical error
and that the addition of the finding nunc pro tunc did not constitute an improper alteration of the
sentence.  Id. at 263.
In this case, the record shows that the trial court, as trier of fact, affirmatively found
that a firearm was used during the commission of the offense.  The conflict between the court's oral
finding at trial and the "not applicable" notation in the written judgment must be resolved in favor
of the oral finding.  See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).  The omission
of the affirmative finding in the original judgment was a clerical error subject to correction nunc pro
tunc, and the trial court did not alter the nature of the offense or change the sentence imposed when
it entered the nunc pro tunc judgment.  Curry, 720 S.W.2d at 263.  Appellant's point of error 
is overruled. 
The order overruling the motion to set aside the nunc pro tunc judgment is affirmed.

				__________________________________________
				David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed:   November 15, 2007
Do Not Publish
1.        An order granting a motion for judgment nunc pro tunc is an appealable order.  See
Moore v. State, 446 S.W.2d 878, 879 (Tex. Crim. App. 1969); Ex parte Curry, 712 S.W.2d 878, 880
(Tex. App.--Austin 1986, no pet.).  Because the trial court granted the State's motion without formal
notice or a hearing, and appellant's first opportunity to object was at the hearing on his motion to set
aside the nunc pro tunc judgment, we conclude that appellant is entitled to appeal the court's order
overruling the motion.  The State does not argue otherwise.

