                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-09-00057-CR
         ______________________________


          KEITH HIGHTOWER, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 71st Judicial District Court
               Harrison County, Texas
             Trial Court No. 08-0401X




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                   MEMORANDUM OPINION

       After loading her groceries into the back of her vehicle, Lauren Best got into the vehicle and

put her purse down. Keith Hightower, who was sixteen at the time of the offense, walked up

between Best and the open door. Hightower pointed a gun at Best and ordered her to move over.

Best responded that she could not move over because of the console and started to scream. When

another witness approached Best's vehicle and addressed her by name, Hightower walked away.

       The State requested that the juvenile court waive its jurisdiction and transfer the case to

district court for Hightower, who had an extensive history of delinquent conduct, to stand trial as an

adult. At the discretionary transfer hearing, Hightower waived his right to a full hearing after being

informed by the juvenile court of his right to cross-examine the State's witnesses and call witnesses

on his own behalf. The State introduced a diagnostic study and the offense report which contained

numerous witness statements. When asked if he had any objection, defense counsel stated, "No

objection." The trial court signed a transfer order which contained fourteen specific findings, but

failed to specifically find there was probable cause to believe Hightower had committed the offense

alleged by the State.

       After the transfer of Hightower's case to the district court, Hightower was charged by

indictment with the offense of aggravated robbery with a deadly weapon. Hightower waived his

right to a jury trial and entered an open plea of guilty. The trial court found Hightower guilty, found

Hightower had used a deadly weapon in the commission of the offense, and assessed punishment



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at fourteen years' imprisonment. On appeal, Hightower's sole point of error is that the juvenile court

erred in transferring the case to district court without finding that there was probable cause to believe

he had committed the offense as alleged.

        After Hightower had perfected an appeal and the appellate record had been filed, the juvenile

court signed a nunc pro tunc order waiving jurisdiction including the probable cause finding. The

trial court, though, lacked authority to enter a nunc pro tunc order after the appellate record had been

filed. Rule 23.1 of the Texas Rules of Appellate Procedure permits a trial court to correct clerical

mistakes or errors in a judgment or order through entry of a nunc pro tunc judgment "unless the

defendant has appealed." See TEX . R. APP . P. 23.1; see State v. Bates, 889 S.W.2d 306, 309 (Tex.

Crim. App. 1994). Once a defendant has filed a notice of appeal and the record has been filed with

the appellate court, the trial court lacks authority to act on the case until it receives the appellate

court's mandate. See TEX . R. APP . P. 25.2(g); Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App.

1995); Jones v. State, 795 S.W.2d 199, 201 (Tex. Crim. App. 1990). Because the trial court lacked

authority to issue the first nunc pro tunc order, this Court abated the appeal and the trial court entered

a second nunc pro tunc order including the probable cause finding.

        We review a juvenile court's decision in a Section 54.02 proceeding for whether the juvenile

court abused its discretion in certifying the child to be tried as an adult for the alleged crime. In re

K.B.H., 913 S.W.2d 684, 687–88 (Tex. App.—Texarkana 1995, no writ). "A court abuses its




                                                    3
discretion when it acts in an arbitrary or unreasonable manner." Faisst v. State, 105 S.W.3d 8, 12

(Tex. App.—Tyler 2003, no pet.).

        The Texas Family Code requires a juvenile court to determine there is probable cause to

believe the juvenile has committed the offense alleged in order to waive jurisdiction and order a

discretionary transfer to the district court. See TEX . FAM . CODE ANN . § 54.02(a)(3) (Vernon 2008).

This requirement is mandatory. See R.P. v. State, 759 S.W.2d 181 (Tex. App.—San Antonio 1988,

no writ). "Probable cause consists of sufficient facts and circumstances to warrant a prudent person

to believe that the suspect committed the offense." K.B.H., 913 S.W.2d at 689.

        Similar to judgments, clerical errors in orders may be corrected through a nunc pro tunc

order. In re M.A.V., 88 S.W.3d 327, 333 (Tex. App.—San Antonio 2002, no pet.). A nunc pro tunc

can be issued to correct clerical errors, i.e., an error "'in which no judicial reasoning contributed to

its entry, and for some reason was not entered of record at the proper time.'" State v. Dudley, 223

S.W.3d 717, 721–22 (Tex. App.—Tyler 2007, no pet.) (quoting Bates, 889 S.W.2d at 309). "Nunc

pro tunc orders are not appropriate to address 'judicial errors,' errors that are the product of judicial

reasoning or determination." Id. at 722. A nunc pro tunc order "is improper if it has the effect of

making a new or independent order." Johnson v. State, 233 S.W.3d 420, 426 (Tex. App.—Fort

Worth 2007, pet. ref'd). "A correction can be made to reflect what actually happened at trial by entry

of a nunc pro tunc judgment, 'but correction can be only as to what was done and not as to what

should have been done.'" Id. (quoting Ex parte Dopps, 723 S.W.2d 669, 671 (Tex. Crim. App.



                                                   4
1986)). "The determination of whether an error is judicial or clerical in nature is a question of law."

Id.

        In M.A.V., the San Antonio Court of Appeals sua sponte abated the appeal and remanded the

case to the trial court to determine whether the omission of several charges from the transfer order

was a clerical error. M.A.V., 88 S.W.3d at 333. Similarly, in this case, we conclude the failure to

include a probable cause finding was a clerical error. At the hearing on the discretionary transfer,

the juvenile court stated on the record that "[t]he evidence is overwhelming that the State has met

its burden . . . ."1 Since the error was clerical, the trial court could modify the transfer order with a

nunc pro tunc order to correctly record what actually occurred at the transfer hearing. Since the




        1
         We note the San Antonio Court of Appeals has suggested in an unpublished opinion that an
oral finding of probable cause is sufficient. See Fuentes v. State, No. 04-96-00600-CR, 1997 WL
120191, at *5 (Tex. App.—San Antonio Mar. 19, 1997, no pet.) (not designated for publication)
(citing In re R.A.G., 866 S.W.2d 199, 199 (Tex. 1993)).

                                                   5
failure to include a probable cause finding has been cured, the error complained of on appeal is now

moot.2

         We affirm the judgment of the trial court.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:         July 7, 2009
Date Decided:           July 10, 2009

Do Not Publish




         2
        We note the State argues the original transfer order is sufficient because it states, "The crime
perpetrated by Respondent . . . ," which implies a finding that the crime was committed by
Hightower. The State argues if the court found an act was committed by a person, it necessarily
follows there is probable cause that the person committed the act. Because we find the nunc pro tunc
order was sufficient, it is not necessary for this Court to consider this argument.

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