Affirmed and Memorandum Opinion filed February 28, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-01141-CR

EX PARTE WOODROW MILLER, Appellant

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 876249-D

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

Appellant appeals the trial court’s nunc pro tunc order denying his 

application for writ of habeas corpus. In eight issues appellant contends (1) the 

trial court did not have plenary power to issue the judgment nunc pro tunc; (2) the 

modification made by the trial court in its nunc pro tunc judgment is judicial, not 

clerical; (3) this court does not have jurisdiction over trial court cause number 

876249-E; (4) the trial court’s judgment does not comply with article 11.072 of the 

Code of Criminal Procedure; (5) the trial court has failed to address appellant’s 

applications for habeas relief filed after January 13, 2009; (6) the trial court failed 
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to address appellant’s applications for habeas relief filed March 15, 2006; (7) the 

trial court failed to process appellant’s notice of appeal filed October 31, 2008; and 

(8) the trial court abused its discretion by granting judgment to the State for 

unpleaded actions. We affirm.

Procedural Background

On May 20, 2002, appellant pleaded nolo contendere to the offense of 

indecency with a child in trial court cause number 876249. The trial court deferred 

a finding of guilt and placed appellant on deferred adjudication probation for seven 

years. Appellant appealed his deferred adjudication, but the appeals were 

dismissed. Miller v. State, No. 14-04-00740-CR, 2004 WL 2187136 (Tex. App.—

Houston [14th Dist.] Sept. 30, 2004, pet. ref’d) (not designated for publication); 

Miller v. State, No. 14-06-00293-CR, 2006 WL 1140661 (Tex. App.—Houston 

[14th Dist.] April 27, 2006, pet. ref’d) (not designated for publication). The 

appellant also challenged his deferred adjudication in a prior application for writ of 

habeas corpus; the denial of relief was affirmed on appeal. Ex parte Miller, No. 

14-07-00532-CR, 2008 WL 1795053 (Tex. App.—Houston [14th Dist.] April 22, 

2008, pet. ref’d) (not designated for publication).

On October 17, 2008, appellant’s guilt was adjudicated and he was 

sentenced, pursuant to a plea bargain agreement with the State, to four years in 

prison. On that same date, appellant filed his fourth application for writ of habeas 

corpus in trial court cause number 876249-D. On October 30, 2008, the trial court 

denied appellant’s application as frivolous pursuant to article 11.072 § 7(a) of the 

Texas Code of Criminal Procedure. This Court dismissed that appeal because the 

appellant did not timely file his notice of appeal. Ex parte Miller, No. 14-12-

00434-CR, 2012 WL 6018081 (Tex. App.—Houston [14th Dist.] Dec. 4, 2012, no 

pet.) (not designated for publication).
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On November 13, 2012, the trial court entered judgment nunc pro tunc in 

cause number 876249-D. The nunc pro tunc judgment corrected the October 30, 

2008 judgment to reflect all references to appellant’s application were in cause 

number 876249-D, rather than 876249-A and 876249-E. On December 7, 2012, 

appellant filed a timely notice of appeal.

Standard of Review

The decision to grant or deny an application for writ of habeas corpus is one 

within the trial court’s discretion and may be overturned only if the appellate court 

finds the trial court abused its discretion. See Kniatt v. State, 206 S.W.3d 657, 664 

(Tex. Crim. App. 2006). The reviewing court must defer to all of the trial court’s 

implied factual findings supported by the record. Ex parte Wheeler, 203 S.W.3d 

317, 325–26 (Tex. Crim. App. 2006).

Discussion

In his first two issues, appellant contends the trial court acted outside its 

plenary jurisdiction by correcting a judicial error, not a clerical error. 

The purpose of a nunc pro tunc order is to correctly reflect in the records of 

the trial court the judgment it actually made, but did not enter of record at the 

proper time. Johnson v. State, 233 S.W.3d 420, 425 (Tex. App.—Fort Worth 

2007, pet. ref’d). Therefore, before a judgment nunc pro tunc may be entered, 

there must be proof the proposed judgment was actually rendered or pronounced at 

an earlier time. Jones v. State, 795 S.W.2d 199, 201 (Tex. Crim. App. 1990). A 

judgment nunc pro tunc is improper when it has the effect of making a new or 

independent order. Ex parte Dickerson, 702 S.W.2d 657, 658 (Tex. Crim. App.

1986). The nunc pro tunc entry may be made to correct a judgment to properly 

reflect the actual order but may not be used to modify or add provisions to an order 
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previously entered. Id. 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.” Ex parte Dopps, 

723 S.W.2d 669, 671 (Tex. Crim. App. 1986).

The original judgment in cause number 876249-D contained two 

typographical errors. The first one referred to “the instant habeas application, 

cause number 0876249-A,” when the judgment was actually for cause number 

0876249-D; therefore, the judgment nunc pro tunc properly corrected that error. 

The second typographical error occurred when the trial court recited that it “adopts 

the State’s Proposed Findings of Fact, Conclusions of Law and Order in cause 

number 0876249-E.” The court changed that recitation to read, “the Court adopts 

the State’s Proposed Findings of Fact, Conclusions of Law and Order in cause 

number 0876249-D.” 

A clerical error is a discrepancy between the entry of a judgment in the 

record and the judgment that was actually rendered by the court, and does not arise 

from judicial reasoning or determination. See Escobar v. Escobar, 711 S.W.2d 

230, 231–32 (Tex. 1986). A judicial error, on the other hand, occurs in the 

rendering, as opposed to the entering, of a judgment. Id. at 231. 

In this case, the original judgment was in cause number 876249-D. The 

inadvertent references to two other applications filed by appellant in cause 

numbers 876249-A and 876249-E were clerical errors capable of correction by 

judgment nunc pro tunc. Because the errors were typographical errors only, the 

trial court did not err in rendering judgment nunc pro tunc. Appellant’s first two 

issues are overruled.

In his third issue, appellant contends this court does not have jurisdiction 

over trial court cause number 876249-E. The record reflects an appeal from cause 
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number 876249-D; there is no judgment or notice of appeal in this record from 

cause number 876249-E. Therefore, appellant is correct that this court does not 

have jurisdiction over cause number 876249-E. However, this court’s lack of 

jurisdiction over another judgment does not affect the judgment nunc pro tunc 

entered in this appeal. 

In issues four through eight, appellant complains of the trial court’s action or 

inaction with regard to the original judgment. If the trial court corrects a mistake 

by judgment nunc pro tunc after expiration of the court’s plenary power, the court 

of appeals has no authority to hear any complaint that could have been presented in 

an appeal from the original judgment. In re A.L.S., 338 S.W.3d 59, 71 (Tex. 

App.—Houston [14th Dist.] 2011, pet. denied). Therefore, we do not have 

authority to review appellant’s fourth through eighth issues.

The judgment of the trial court is affirmed.

PER CURIAM

Panel consists of Justices Christopher, Jamison, and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).