                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00303-CR


WILLIE EARL HALL JR.                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                                   OPINION
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      In two points, appellant Willie Earl Hall Jr. appeals the trial court’s

“Judgment Revoking Community Supervision.” We affirm.

                               Background Facts

      In 2008, when appellant was fifteen years old, the State filed a petition

alleging that he had engaged in delinquent conduct. Appellant waived his rights

to confront witnesses and to have a jury trial, and he entered into a plea bargain

agreement with the State. The terms of the plea bargain included appellant’s

stipulation that he had committed aggravated sexual assault of a seven-year-old
child.1 Based on the plea bargain, the juvenile court adjudicated appellant to be

delinquent, assessed a five-year determinate sentence, suspended that sentence

for five years, and placed appellant on probation.2 Appellant’s probation began

on June 26, 2008.

      In July 2010, pursuant to the State’s motion and a hearing that appellant

attended with counsel, appellant’s probation was transferred to a district court

(the trial court); the transfer order recognizes that appellant had already been

“found to have engaged in delinquent conduct.”3 In conjunction with the transfer

of his probation to the trial court, appellant signed a document stating that he

would comply with the conditions of his community supervision.

      Although no document filed in the juvenile court had alluded to a deferral of

that court’s adjudication of appellant’s delinquency, and although the record from

the juvenile court clearly shows that appellant had been adjudicated delinquent,

documents filed in the trial court after the transfer, including one document titled

“Certificate of Proceedings,” state that appellant had been placed on deferred

adjudication in 2008.4 The trial court imposed several conditions on appellant’s

probation.


      1
       See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2011).
      2
       See Tex. Fam. Code Ann. § 54.04(d)(3), (q) (West Supp. 2011).
      3
       See id. §§ 54.04(q), .051(a), (d) (West Supp. 2011).
      4
       When a district court exercises jurisdiction over a juvenile through a
transfer of the juvenile’s probation under section 54.051 of the family code, the

                                         2
      In March 2011, the State filed a “Petition to Proceed to Adjudication,”

alleging that appellant had violated several terms of the probation. That petition

asked the trial court to require appellant to show cause why the court should not

proceed to the adjudication of his guilt. Two months later, the State filed its “First

Amended Petition to Revoke Probated Sentence,” which, unlike the first petition,

prayed for the trial court to require appellant to appear and show cause why his

“sentence should not be imposed and put into execution[] as the law provides.”

      In July 2011, the trial court held a hearing on the amended petition to

revoke appellant’s probated sentence, not the original petition to proceed to

adjudication.5 Toward the beginning of the hearing, appellant recognized that he

had been placed on a “five-year straight probation” term while his sentence was

suspended. Appellant pled true to several allegations contained in the State’s

amended petition and judicially confessed to them; on the record, he expressed

his understanding that by entering pleas of true, the trial court could find that he

violated the terms of his probation and could sentence him to up to five years’

confinement.    After appellant entered his pleas of true, the State rested.

Appellant called a few witnesses to testify about his behavior and treatment while



district court “shall place the child on community supervision . . . for the
remainder of the child’s probationary period and under conditions consistent with
those ordered by the juvenile court.” Id. § 54.051(e) (emphasis added).
      5
        Appellant recognized in his original brief that the State’s second petition
amended its first petition and that the trial court held a hearing on the second
petition.


                                          3
he was on probation. In closing arguments, appellant’s counsel asked the trial

court to allow appellant to remain on probation, but the trial court verbally found

that appellant had violated the terms of his probation and sentenced him to four

years’ confinement.6

      Although the trial court did not verbally purport to adjudicate appellant’s

guilt for aggravated sexual assault, the court originally entered a written judgment

titled “Judgment Adjudicating Guilt.”        Appellant appealed that judgment,

contending that the judgment was improper. In an abatement order, we agreed

that the judgment was improper; we noted, in part, that double jeopardy bars a

conviction for the same act for which a juvenile has been adjudicated delinquent.

We explained in the abatement order that while the trial court had statutory

authority to revoke appellant’s probation and impose a prison sentence, it could

not convict appellant of aggravated sexual assault.      Because the trial court’s

original written judgment adjudicating guilt differed from the court’s verbally

expressed intentions at the end of the revocation hearing, we noted in our

abatement order that the record suggested that a clerical error might have

occurred. Therefore, we abated the appeal, remanded the case to the trial court,

and ordered the trial court to conduct a hearing to determine whether the written

      6
        If a transferred defendant who has been adjudicated delinquent violates
the conditions of his probation, the district court may “reduce the prison sentence
to any length.” Id. § 54.051(e-2); Krupa v. State, 286 S.W.3d 74, 77 (Tex. App.—
Waco 2009, pet. ref’d). The trial court’s reduction of appellant’s sentence from
five years to four years indicates the court’s awareness of the modified
punishment range associated with section 54.051(e-2).


                                         4
judgment contained a clerical error that was subject to correction. We notified

the trial court that if it determined that the written judgment contained a clerical

error, the court needed to correct the error through a nunc pro tunc judgment and

make findings of facts and conclusions of law concerning its decision about

whether the judgment contained a clerical error.

      Upon our abatement, the trial court held a hearing in which it expressed,

            The judgment [adjudicating guilt] does not reflect the intent of
      this Court, nor does it reflect what actually happened at juvenile.

             Mr. Hall was on a determinate sentence probation which is
      what we would call in the adult system after transfer [of] a straight
      probation. It was entered in the clerk’s record as a determinate
      sentence deferred adjudication which this Court believes to be
      impossible. That is incorrect. It’s a clerical error by the clerk. That
      clerical order, unfortunately, was carried forward throughout the file,
      which the Court’s intent in this case, which was reflected in the
      revocation hearing, is that this is the straight probation that was
      transferred from juvenile. This Court does not have any intent to
      change that, nor does this Court believe this Court has the power to
      change a finding of guilt that’s already been entered into a deferred
      adjudication. And every document thereafter that reflects a deferred
      adjudication, including the judgment adjudicating guilt, needs to be
      changed to be in conformity with the determinate sentence straight
      probation that Mr. Hall was on. [Emphasis added.]

After the hearing concluded, the trial court signed a “Nunc Pro Tunc Order

Correcting Minutes of the Court,” which changed the title of the original judgment

from “Judgment Adjudicating Guilt” to “Judgment Revoking Community

Supervision.” Appellant filed a supplemental brief in which he asserts two points

and asks us to discharge him from custody and release him from further

community supervision.



                                         5
                   The Propriety of the Nunc Pro Tunc Order

      In the first point of his supplemental brief, appellant argues that the trial

court’s original judgment adjudicating guilt was not the product of a clerical error.

Appellant first contends that the “trial court at the [abatement] hearing did not

address whether the signing of the judgment adjudicating guilt was . . . the result

of a clerical error.” We disagree with this factual contention; as shown above,

during the abatement hearing, the trial court made clear on the record that the

judgment adjudicating guilt did not reflect the intent of the court and that, instead,

a clerical error had been “carried throughout the file.” Also, the trial court’s final

conclusion of law, which the trial court entered after the abatement hearing,

states, “In this case, because the intent of this Court was to continue Appellant’s

straight probation and have a normal recovation proceeding, this Court’s

judgment reflecting an adjudication of guilt was the product of a clerical error.”

      Appellant also argues that even assuming that the trial court stated that the

signing of the judgment adjudicating guilt was a clerical error, the record does not

support that statement, but it rather shows that the trial court made an error

caused by judicial reasoning that could not be corrected through a nunc pro tunc

order. The classification of an error as clerical or judicial is a question of law.

See Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988); Alvarez v.

State, 605 S.W.2d 615, 617 (Tex. Crim. App. [Panel Op.] 1980). Clerical errors

in judgments are subject to correction through judgments nunc pro tunc. English

v. State, 592 S.W.2d 949, 955–56 (Tex. Crim. App.), cert. denied, 449 U.S. 891


                                          6
(1980); Johnson v. State, 233 S.W.3d 420, 425–26 (Tex. App.—Fort Worth 2007,

pet. ref’d); In re Hancock, 212 S.W.3d 922, 927 (Tex. App.—Fort Worth 2007,

orig. proceeding).

      A judgment may reflect a clerical error when it incorrectly records the

judgment rendered, so long as a product of judicial reasoning is not involved.

See Alvarez, 605 S.W.2d at 617. A court “renders” a judgment when “orally in

open court or by written memorandum signed by [it] and delivered to the clerk,

the [court] pronounces . . . a decision of the law upon given state of facts.”

Westbrook v. State, 753 S.W.2d 158, 160 (Tex. Crim. App. 1988) (Clinton, J.,

concurring) (citing Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.

1970)); see also S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995)

(“Judgment is rendered when the trial court officially announces its decision in

open court . . . .”). The purpose of a nunc pro tunc judgment is to reflect the truth

of what actually occurred in the trial court. Alvarez, 605 S.W.2d at 617. “The trial

court cannot, through a judgment nunc pro tunc, change a court’s records to

reflect what it believes should have been done.” Collins v. State, 240 S.W.3d

925, 928 (Tex. Crim. App. 2007). Thus, “before a judgment nunc pro tunc may

be entered, there must be proof that the proposed judgment was actually

rendered or pronounced at an earlier time.” Id. (quoting Wilson v. State, 677

S.W.2d 518, 521 (Tex. Crim. App. 1984)). When a trial court corrects its records

to reflect the truth of what happened in the court, the court is correcting a clerical

error, not a judicial error. See Poe, 751 S.W.2d at 876; see also In re Cherry,


                                          7
258 S.W.3d 328, 333 (Tex. App.—Austin 2008, orig. proceeding) (explaining that

a “nunc pro tunc order can only be used to make corrections to ensure that the

judgment conforms with what was already determined and not what should have

been determined”).

      These cases illustrate that the question that we must resolve in

determining the validity of the trial court’s nunc pro tunc judgment is whether the

nunc pro tunc judgment truthfully aligns with the judgment that the court originally

rendered or, instead, whether the nunc pro tunc judgment changes, through

judicial reasoning, the judgment that the court originally rendered. As we have

explained above, the record from the revocation hearing indicates that the trial

court and the parties understood that the State was proceeding on its amended

petition, which sought only revocation of appellant’s probation, and not on its

original petition, which sought adjudication of his guilt.     At the end of the

revocation hearing, the trial court stated,

            Mr. Hall, the Court having received your pleas of true to
      Paragraphs 1, 2, 4, and 5, the Court will find those allegations to be
      true and find that you violated the terms and conditions of your
      probation.

             ....

             I’ll set your sentence at four years[’] confinement in the
      Institutional Division of the Texas Department of Criminal Justice.

             It will be the order of this Court that you be delivered by the
      sheriff of Tarrant County to the director of the Institutional Division
      where you’ll serve your sentence as required by law.

      As this excerpt from the record shows, in orally rendering its judgment, the


                                          8
trial court did not purport to adjudicate appellant’s guilt, which is what the original

written judgment reflected. Instead, the court unambiguously revoked appellant’s

probation and sentenced him, and the nunc pro tunc order accurately reflects this

judicial reasoning.

         Thus, under the authority cited above, we hold that the trial court did not

err by entering the nunc pro tunc order and changing the title of the judgment

from one adjudicating guilt to one revoking community supervision. Cf. Collins,

240 S.W.3d at 928 (“It is clear from the record of the trial court that there was no

clerical error that this judgment nunc pro tunc was correcting.            The written

judgment perfectly matches the judgment pronounced in court.”).

         Finally, we note that appellant did not object to the fact that the revocation

hearing proceeded on the amended petition. He also did not object in the trial

court to any nonconformity between the trial court’s oral rendition of judgment

that sentenced him to confinement by revoking straight probation and documents

that had previously been filed in the case that indicated that he was on deferred

adjudication.     And appellant concedes that he had notice of the “term and

conditions of his probation and [of] his required behavior to avoid being placed in

jail.”

         For all of these reasons, we overrule appellant’s first point.7



         7
       In his original brief, appellant’s sole point stated, “The document entitled
Judgment Adjudicating Guilt was not authorized by law . . . .” Because we have
held that the trial court did not err by entering its nunc pro tunc order, which

                                            9
                                Double Jeopardy

      In his second point, appellant asserts that the “order of the trial court

placing [him] on deferred adjudication probation as well as his subsequent

conviction violated [his] rights to be free of double jeopardy.”8     As we have

explained,

             The Double Jeopardy Clause of the United States Constitution
      provides that no person shall be subjected to twice having life or limb
      in jeopardy for the same offense. U.S. Const. amend. V. Generally,
      this clause protects against (1) a second prosecution for the same
      offense after acquittal, (2) a second prosecution for the same
      offense after conviction, and (3) multiple punishments for the same
      offense.

Washington v. State, 326 S.W.3d 302, 311 (Tex. App.—Fort Worth 2010, pet.

ref’d) (citing Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006));

see also Ex parte Wheeler, 203 S.W.3d 317, 322 (Tex. Crim. App. 2006) (“The

double jeopardy provisions of the federal and Texas constitutions protect a

citizen from repeated attempts at prosecution for the same criminal offense.”).

      Appellant argues that he suffered a second prosecution for the same

offense after conviction when, according to documents filed after the transfer of

his suspended sentence and probation from the juvenile court, he was placed on



replaced the judgment adjudicating guilt with a judgment revoking community
supervision, we overrule appellant’s point from his original brief.
      8
        Appellant cites double jeopardy provisions contained in the federal and
state constitutions and in a state statute. He does not argue that the state double
jeopardy standard differs from the federal standard with respect to his issues
raised in his point.


                                        10
deferred adjudication and therefore faced the threat of being adjudicated guilty.

The court of criminal appeals has concluded that double jeopardy bars a

conviction for the same act for which a juvenile has been adjudicated delinquent.

See Ex parte Elizalde, 594 S.W.2d 105, 106 (Tex. Crim. App. 1980) (op. on

reh’g) (citing Breed v. Jones, 421 U.S. 519, 532, 541, 95 S. Ct. 1779, 1787, 1791

(1975)); Van Hatten v. State, 97 Tex. Crim. 123, 125, 260 S.W. 581, 582 (1924)

(“[I]f a juvenile is proceeded against as a delinquent child . . . he cannot again be

prosecuted by the state and convicted of a felony upon the identical offense upon

which the delinquency conviction was predicated.”); see also Tex. Fam. Code

Ann. § 54.02(j)(3) (West Supp. 2011) (stating that a district court may initiate

criminal proceedings over a juvenile only when “no adjudication concerning the

alleged offense has been made”); In re M.A.V., 88 S.W.3d 327, 329–30 (Tex.

App.—San Antonio 2002, no pet.) (discussing Breed). Therefore, while the trial

court had statutory authority to revoke appellant’s probation and impose a prison

sentence, see Tex. Fam. Code Ann. § 54.051(e-2), it could not convict appellant

of aggravated sexual assault.

      Appellant argues that the “record clearly reflects that [he] was charged with

and convicted of the same offense for a second time.”           We disagree.      As

described above, the trial court explained in the abatement hearing that

references to deferred adjudication after the transfer from the juvenile court were

unintended clerical errors. The actual order transferring appellant’s case from

the juvenile court to the trial court did not reference deferred adjudication; it


                                         11
correctly explained that appellant had already been adjudicated delinquent and

had been placed on probation. The State sought revocation of the probation in

its amended petition, which did not seek adjudication of guilt, and the trial court

verbally rendered judgment in accordance with the amended petition. Finally,

although the trial court’s initial written judgment incorrectly stated that appellant

had been adjudicated guilty despite the absence of any rendition of guilt from the

trial court’s record, the trial court has corrected that judgment through its nunc

pro tunc order.    For these reasons, we reject appellant’s claim that the trial

court’s proceedings violated federal or state principles of double jeopardy, and

we overrule his second point.

                                    Conclusion

      Having overruled appellant’s points in his original and supplemental briefs,

we affirm the trial court’s judgment.




                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

PUBLISH

DELIVERED: June 14, 2012




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