                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00003-CV
                                No. 10-12-00201-CV

                   IN THE MATTER OF J.R., A JUVENILE,



                           From the 74th District Court
                            McLennan County, Texas
                            Trial Court No. 2011-272-J


                          MEMORANDUM OPINION


      In appellate cause number 10-12-00003-CV, appellant, J.R., challenges the trial

court’s “Dispositional Order of Commitment to the Texas Youth Commission” signed

on December 5, 2011, arguing that the trial court’s written order does not comport with

its oral pronouncement that he register as a sex offender. Appellant also challenges the

validity of his waiver of his right to appeal. As explained herein, we grant the State’s

motion to dismiss and appellant’s motion to transfer the record.

                                     I.    BACKGROUND

      The State alleged in its amended petition that J.R. engaged in delinquent conduct

by committing four offenses: (1) indecent exposure; (2) burglary of a habitation; (3)
attempted sexual assault; and (4) sexual assault. Before the adjudication portion of the

proceeding, appellant, his mother, and his attorney signed a “Court’s Admonition of

Statutory and Constitutional Rights and Juvenile’s Acknowledgement,” which included

information about potential dispositions and several waivers.        Among the waivers

contained in this document was the right to appeal.

        At the beginning of the December 5, 2011 adjudication hearing, the trial court

confirmed that appellant understood the rights that he was waiving and that he waived

those rights voluntarily.           The trial court also provided several admonishments,

including potential dispositions that could apply in this case—namely, probation at

home, probation with placement outside the home, and confinement at the Texas Youth

Commission (“TYC”) for an indeterminate sentence. The trial court also informed

appellant that he could be required to register as a sex offender.              Appellant

acknowledged that he discussed all of these matters with his trial counsel and that he

did not have any questions regarding his rights.

        Appellant, his mother, and appellant’s attorney also signed a written stipulation

in which appellant stipulated to the first three allegations contained in the State’s

amended petition.           The trial court discussed the stipulation with appellant and

subsequently admitted the stipulation into evidence.           Thereafter, the trial court

concluded that appellant had engaged in delinquent conduct based on the signed

stipulation.

        During the disposition phase, the State offered several reports and a social

history on appellant. The trial court learned that appellant had a previous juvenile

In the Matter of J.R., a Juvenile                                                   Page 2
adjudication for which he had received felony probation. Appellant and his parents

testified at the hearing, and appellant requested that he be granted probation, placed in

an inpatient-sex-offender-treatment program, and excused from the sex-offender-

registration requirement.

        At the conclusion of the hearing, the trial court committed appellant to TYC for

an indeterminate period.            In addition, the trial judge, in open court, ordered that

appellant register as a sex offender. However, contrary to the trial judge’s statements in

open court, the December 5, 2011 disposition order deferred the registration

requirement pending the successful completion of a sex-offender-treatment program at

TYC.

        Appellant subsequently filed a motion for new trial, which was denied. He then

filed his notice of appeal in appellate cause number 10-12-00003-CV. After appellant

filed his notice of appeal, the State, on May 8, 2012, filed a “Motion for Dispositional

Order of Commitment to the Texas Youth Commission Nunc Pro Tunc” in the trial

court. In this motion, the State requested that the trial court modify its December 5,

2011 dispositional order to reflect the statement it made in open court—that appellant is

required to register as a sex offender. On the same day, the trial court granted the

State’s nunc pro tunc motion and reformed the December 5, 2011 dispositional order to

reflect that appellant is required to register as a sex offender.

        On May 23, 2012, the State filed a motion to dismiss appellant’s appeal in

appellate cause number 10-12-00003-CV, asserting that appellant’s complaint about the

discrepancy between the oral and written pronouncements regarding his registration as

In the Matter of J.R., a Juvenile                                                      Page 3
a sex offender was moot in light of the trial court’s judgment nunc pro tunc. The State

also argued that appellant’s first issue is a procedural ground that is also moot.

        In the meantime, appellant filed a second appeal—appellate cause number 10-12-

00201-CV—in which he appeals from the trial court’s judgment nunc pro tunc.

Appellant also filed a response to the State’s motion to dismiss, contending that Texas

Rule of Civil Procedure 329b(h) requires his issue pertaining to the validity of his

waiver of his right to appeal be determined “in an appeal from the original judgment”;

thus, his appeal in appellate cause number 10-12-00003-CV should not be dismissed.

See TEX. R. CIV. P. 329b(h). We must now analyze the State’s motion to dismiss.

                                                 II.     ANALYSIS

        A review of appellant’s brief in appellate cause number 10-12-00003-CV shows

that he wishes to challenge the portion of the trial court’s December 5, 2011

dispositional order pertaining to his deferred registration as a sex offender. However,

since appellant filed his notice of appeal in appellate cause number 10-12-00003-CV, the

trial court corrected the error about which appellant complained via a judgment nunc

pro tunc. In appellate cause number 10-12-00201-CV, appellant indicated that he wishes

to appeal from the trial court’s judgment nunc pro tunc.1 Nevertheless, in responding

to the State’s motion to dismiss, appellant argues that Rule 329b(h) requires us to deny

the State’s motion because his appellate-waiver issue remains and cannot be raised in

appellate cause number 10-12-00201-CV. See id. Despite the lack of case law addressing

this precise issue, we disagree with appellant’s application of Rule 329b(h).

        1   Appellant has not filed his brief in appellate cause number 10-12-00201-CV.

In the Matter of J.R., a Juvenile                                                         Page 4
        Texas Rule of Civil Procedure 329b(h) provides that:

        If a judgment is modified, corrected or reformed in any respect, the time
        for appeal shall run from the time the modified, corrected, or reformed
        judgment is signed, but if a correction is made pursuant to Rule 316 after
        expiration of the period of plenary power provided by this rule, no complaint shall
        be heard on appeal that could have been presented in an appeal from the original
        judgment.

Id. (emphasis added). And, Texas Rule of Civil Procedure 329b(d) states that the trial

court, regardless of whether an appeal has been perfected, has plenary power to

“vacate, modify, correct, or reform the judgment within thirty days after the judgment

is signed.” Id. at R. 329b(d). In this case, the trial court signed the dispositional order

on December 5, 2011, yet it entered its judgment nunc pro tunc on May 8, 2012, which is

more than thirty days from the signing of the dispositional order.

        A judgment nunc pro tunc corrects clerical errors after the trial court has lost

plenary power.2 Ferguson v. Naylor, 860 S.W.2d 123, 126 (Tex. App.—Amarillo 1993,

writ denied). Texas courts have held that changes or modifications to the judgment

may be made via a judgment nunc pro tunc pursuant to both Texas Rules of Civil

Procedure 316 and 329b(f). See id. at R. 316, 329b(f) (providing that, among other things,

“the court may at any time correct a clerical error in the record of a judgment and

render a judgment nunc pro tunc under Rule 316”); Gutierrez v. Gutierrez, 86 S.W.3d 721,


        2  A judgment nunc pro tunc may be issued after a trial court’s plenary power expires to “correct a
clerical error” in a judgment or order. See TEX. R. CIV. P. 316, 329b(f). To be clerical in nature, the error
must be one that is not the result of judicial reasoning, evidence, or determination. See Andrews v. Koch,
702 S.W.2d 584, 585 (Tex. 1986); Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.]
2005, no pet.). Conversely, a judicial error arises from a mistake of law or fact that requires judicial
reasoning to correct. Barton, 178 S.W.3d at 126. Essentially, a clerical error occurs in entering a final
judgment, while a judicial error is made in rendering a final judgment. Id.; see Escobar v. Escobar, 711
S.W.2d 230, 231 (Tex. 1986). Here, the parties agree that the error is clerical in nature, not judicial.

In the Matter of J.R., a Juvenile                                                                     Page 5
726 (Tex. App.—El Paso 2002, no pet.); Jenkins v. Jenkins, 16 S.W.3d 473, 482 (Tex. App.—

El Paso 2000, no pet.); see also Pletcher v. Hansen, Nos. 01-09-00516-CV, 01-10-00845-CV,

2011 Tex. App. LEXIS 3187, at *20 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.)

(mem. op.). Specifically, Texas Rule of Civil Procedure 316, entitled “Correction of

Clerical Mistakes in Judgment Record,” provides that:


        Clerical mistakes in the record of any judgment may be corrected by the
        judge in open court according to the truth or justice of the case after notice
        of the motion therefor has been given to the parties interested in such
        judgment, as provided in Rule 21a, and thereafter the execution shall
        conform to the judgment as amended.

TEX. R. CIV. P. 316. It is clear to us that the trial court’s judgment nunc pro tunc served

to correct a clerical error pursuant to Rules 316 and 329b(f). See id. at R. 316, 329b(f).

Moreover, because the trial court’s judgment nunc pro tunc was entered pursuant to,

among other things, Rule 316, we conclude that the judgment nunc pro tunc is within

the purview of Rule 329b(h). See id. at R. 316, 329b(h).

        As stated earlier, Rule 329b(h) states that, for modifications to a judgment made

pursuant to Rule 316, “no complaint shall be heard on appeal that could have been

presented in an appeal from the original judgment.” See id. at R. 316, 329b(h); see also

Pruet v. Coastal States Trading, Inc., 715 S.W.2d 702, 704 (Tex. App.—Houston [1st Dist.]

1986, no writ) (noting the general proposition that the court of appeals has no authority

to hear any complaint that could have been presented in an appeal from the original

judgment).




In the Matter of J.R., a Juvenile                                                        Page 6
        Based on our reading of the rule, we conclude that Rule 329b(h) operates to

prevent appellant from raising a new argument in appellate cause number 10-12-00201-

CV—the appeal pertaining to the trial court’s judgment nunc pro tunc—that could have

and should have been raised in appellate cause number 10-12-00003-CV—the appeal

pertaining to the trial court’s original dispositional order. See TEX. R. CIV. P. 329b(h); see

also id. at R. 1 (stating that the Texas Rules of Civil Procedure should be interpreted

liberally to “obtain a just, fair, equitable and impartial adjudication of the rights of

litigants under established principles of substantive law”); Approximately $14,980.00 v.

State, 261 S.W.3d 182, 187 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“When the

language in a rule is specific and its meaning is clear, the rule is entitled to a literal

interpretation, unless it would lead to absurdities and defeat the intent of the enacting

body.”) (citing Owens-Illinois, Inc. v. Chatham, 899 S.W.2d 722, 733 (Tex. App.—Houston

[14th Dist.] 1995, writ dism’d)).     Nothing in Rule 329b(h) prevents appellant from

raising an issue he originally raised in appellate cause number 10-12-00003-CV in his

new appeal in appellate cause number 10-12-00201-CV. See TEX. R. CIV. P. 329b(h).

        We recognize that appellant has raised his issue about the validity of his waiver

of his appellate rights in appellate cause number 10-12-00003-CV. However, within the

scope of appellate cause number 10-12-00003-CV, we agree with the State’s argument

that appellant’s waiver argument is moot because the trial court addressed appellant’s

complaint regarding his registration as a sex offender in its judgment nunc pro tunc. In

the docketing statement for appellate cause number 10-12-00201-CV, appellant indicates

that he wishes to challenge the trial court’s judgment nunc pro tunc. Essentially, the

In the Matter of J.R., a Juvenile                                                       Page 7
scope of appellant’s complaints has changed from an appeal of the trial court’s

dispositional order—appellate cause number 10-12-00003-CV—to an appeal of the trial

court’s modifications of the dispositional order—appellate cause number 10-12-00201-

CV. While the dispositional order and the judgment nunc pro tunc are related, we

think it is a better practice for appellant to once again raise his appellate waiver issue in

his appeal pertaining to the trial court’s judgment nunc pro tunc, especially considering

he has already raised this issue “in an appeal from the original judgment.” See TEX. R.

CIV. P. 329b(h). As such, we find appellant’s appeal in appellate cause number 10-12-

00003-CV to be moot. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005) (“A

case becomes moot if a controversy ceases to exists or the parties lack a legally

cognizable interest in the outcome.”). Accordingly, we grant the State’s motion to

dismiss appellate cause number 10-12-00003-CV, and it is hereby dismissed.

        Yet, our analysis of this matter does not end here. On June 19, 2012, appellant

filed an unopposed motion to transfer the record in appellate cause number 10-12-

00003-CV to appellate cause number 10-12-00201-CV.            Because of our disposition

regarding the State’s motion to dismiss, we grant appellant’s motion to transfer the

record in appellate cause number 10-12-00003-CV to appellate cause number 10-12-

00201-CV. The Clerk is directed to transfer all documents, including the clerk’s record,

reporter’s record, correspondence, motions, briefs, rulings, orders, and opinions in the

file for appellate cause number 10-12-00003-CV to the file for appellate cause number

10-12-00201-CV.




In the Matter of J.R., a Juvenile                                                      Page 8
                                                 PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurring with a note)*
Motion to Dismiss Granted, Appeal Dismissed; Motion To Transfer Record Granted
Opinion delivered and filed August 16, 2012
[CV06]

*(Chief Justice Gray concurs in the dismissal. A separate opinion will not issue. He
notes, however, that because the judgment nunc pro tunc signed by the trial court is
well beyond the trial court’s plenary power, that TRCP 329b(h) has nothing to do with
the issues in this dismissal. Therefore, contrary to the statements in the opinion, the
appellant could not raise in the second appeal any issue that he could or should have
raised in the first appeal. Further, whether the trial court could properly render a
judgment nunc pro tunc on the issue presented, deferral of the sex offender registration
requirement for the juvenile, may well be a decision of the merits of the issue. If this
issue is determined by the criminal rules, it may be merely a clerical error that can be
corrected by such a procedure; but that is not at all clear if this issue is decided under
the civil rules applicable to a determination of whether it is a clerical or judicial error
since the trial court could have changed his mind before he signed the first judgment.
Further, under a strict interpretation of the rules of appellate procedure, the second
proceeding should have been assigned the same docket number as the first and all the
issues would be taken up within that one proceeding. TRAP 12.2(c) (“All notices of
appeal filed in the same case must be given the same docket number.”). But this rule is
uniformly not applied when there are mandamus proceedings, interlocutory appeals,
and multiple judgments as in these appeals. The easiest way to avoid all of the issues in
this proceeding is to simply combine these appeals and dispose of them in one final
opinion. But all of the foregoing is really a mere distraction because the first appeal
should be dismissed because it did not present a case or controversy. The judgment
contained the very relief the appellant wanted. I understand why the appeal was filed:
the appellant feared the prosecutor would do precisely what he did, file a motion nunc
pro tunc, and that the trial court might do exactly what he did, sign the order on the
same date it was filed, and apparently without notice and opportunity to be heard by
the appellant. With the prospect for that type “correction” it may have been a good
strategy to try to keep it from happening by having the issue addressed in an appeal.
The problem is that as long as the signed order had the very language in it that
appellant wanted, there was no controversy the appeal could resolve on behalf of the
appellant. Thus, the proper disposition of the first appeal is dismissal. That is the
judgment of the Court, albeit on an entirely different ground, and accordingly I
respectfully concur in the Court’s judgment.)


In the Matter of J.R., a Juvenile                                                    Page 9
