In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-19-00394-CR

___________________________

On Appeal from the 371st District Court

Tarrant County, Texas

Trial Court No. 1380491D

Before Sudderth, C.J.; Womack and Wallach, JJ.

Memorandum Opinion by Justice Womack

Concurring Memorandum Opinion by Chief Justice Sudderth

Dissenting Memorandum Opinion by Justice Wallach

ROHN M. WEATHERLY, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

Appellant Rohn M. Weatherly appeals the trial court’s “Nunc Pro Tunc Order 

Correcting Minutes of the Court” in which the trial court amended its January 15, 

2016 judgment of conviction to contain sex-offender-registration requirements and 

the age of Weatherly’s victim at the time the offense occurred. We affirm. 

II. BACKGROUND

In October 2015, Weatherly pleaded guilty to the unlawful restraint of a child 

under the age of seventeen without a sentencing recommendation by the State. See 

Weatherly v. State, Nos. 02-16-00026-CR, 02-16-00027-CR, 2016 WL 7157300, at *1 

(Tex. App.—Fort Worth Dec. 8, 2016, no pet.) (mem. op., not designated for 

publication). After the preparation of a pre-sentencing report and the holding of a 

punishment hearing, the trial court sentenced Weatherly to fifteen years’ confinement. 

The trial court’s January 15, 2016 judgment reflected that sex-offender-registration 

requirements did not apply to Weatherly and that the age of the victim at the time of 

the offense was “N/A.” On direct appeal, this court affirmed the trial court’s 

judgment. Id. 

On October 18, 2019, the trial court rendered a nunc pro tunc order1amending 

the January 15, 2016 judgment to reflect that sex-offender-registration requirements

1There are four nunc pro tunc orders that were entered in this case after 

judgment. The first order amended the judgment’s “Judge Presiding” field, adding
3

did apply to Weatherly and that the age of the victim at the time of the offense “was 

younger than 17 years of age.” This appeal followed.

III. DISCUSSION

In his sole issue, Weatherly argues that the trial court erred by entering the 

nunc pro tunc order modifying the January 15, 2016 judgment and that Chapter 62 of 

the Texas Code of Criminal Procedure—the statute which mandates that individuals 

convicted of the unlawful restraint of a child be required to adhere to sex-offenderregistration requirements—is unconstitutional as applied to him. We conclude that 

the trial court properly entered its nunc pro tunc order and that Weatherly cannot 

attack the constitutionality of Chapter 62 in this appeal.

A. The Trial Court’s Nunc Pro Tunc Order

Weatherly first argues that the trial court erred by entering the nunc pro tunc 

order. We disagree. 

A judgment nunc pro tunc is the appropriate avenue to make a correction

when the court’s records do not mirror the judgment that was actually rendered. 

the magistrate’s name. The second order corrected the “Time Credited” field. The 

third order amended the judgment to reflect sex-offender-registration requirements 

and the age of Weatherly’s victim at the time of the commission of the offense. This

third order, however, was overturned by the Texas Court of Criminal Appeals because 

Weatherly was not provided notice or an opportunity to be heard. Ex parte Weatherly, 

No. WR-61,215-07, 2019 WL 4318459, at *1 (Tex. Crim. App. Sept. 11, 2019) (not 

designated for publication). It is the fourth nunc pro tunc order that Weatherly now 

appeals, and the record reflects that Weatherly was given proper notice and that the 

trial court held a hearing with the State and Weatherly present before entering the 

order. 
4

Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007); Alvarez v. State, 

605 S.W.2d 615, 617 (Tex. Crim. App. 1980). This means that a trial court can fix a 

clerical error in the record, but only errors that were not the result of judicial 

reasoning are considered clerical errors that can be fixed by a nunc pro tunc order. 

Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). However, the trial court 

cannot, through a nunc pro tunc order, change a court’s records to reflect what it 

believes should have been done. Collins, 240 S.W.3d at 928. And when the law 

requires the trial court to enter a particular finding in the written judgment of 

conviction, the trial court “retain[s] no discretion to do otherwise,” and “the failure of 

the trial judge to do so [is] not an error of judicial reasoning but rather an error of a

clerical nature.” Poe, 751 S.W.2d at 876. 

Even though the unlawful restraint of a child is not considered a “sex offense,”

it is nonetheless a “[r]eportable conviction” that triggers Chapter 62’s registration 

obligations. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(E); Dewalt v. State, 

417 S.W.3d 678, 681–90 (Tex. App.—Austin 2013, pet. ref’d). Citing Dewalt, this

court has held that the sex-offender-registration requirements and a child victim’s age

are statutorily mandated to be included in a trial court’s judgment when a person has 

been convicted of a crime listed in Chapter 62. Williams v. State, No. 02-17-00001-CR, 

2018 WL 3468458, at *4 (Tex. App.—Fort Worth July 19, 2018) (mem. op., not 

designated for publication), aff’d, 603 S.W.3d 439 (Tex. Crim. App. 2020). This court 

further held in Williams that the addition of the registration requirement and the 
5

victim’s age to a judgment is a “clerical act, not a judicial one, appropriate . . . for a 

nunc pro tunc order.” Id. Not only are these additions a clerical act, but the trial court 

has no discretion but to include them in a judgment because the Texas Code of

Criminal Procedure requires the trial court to enter these specific statements. Tex. 

Code Crim. Proc. art. 42.01, § 1(27) (“The judgment shall reflect: . . . In the event of 

conviction of an offense for which registration as a sex offender is required under 

Chapter 62, a statement that the registration requirement of that chapter applies to the 

defendant and a statement of the age of the victim of the offense.”); Poe, 751 S.W.2d 

at 876. 

In this case, Weatherly pleaded guilty to the unlawful restraint of a child, and 

the victim’s age at the time of the offense was four years old. Weatherly, 2016 WL 

7157300, at *1. As such, the requirements of Chapter 62 are met, and the trial court 

was required to include sex-offender-registration requirements and the age of 

Weatherly’s victim in the judgment. Tex. Code Crim. Proc. arts. 42.01, § 1(27), 

62.001(5)(E); see Tex. Penal Code Ann. § 20.02. Thus, the trial court did not err by 

rendering its nunc pro tunc order. We overrule this portion of Weatherly’s sole issue.

B. Weatherly’s Constitutional Argument 

In the remainder of his sole issue, Weatherly complains that Chapter 62 is 

unconstitutional as applied to him because he did not commit a sex offense. The 

State argues that this court does not have jurisdiction to hear this complaint. We 

agree with the State. 
6

Just as a trial court may not correct errors that are the result of judicial

reasoning via nunc pro tunc, a reviewing court has limited jurisdiction to consider the 

propriety of a trial court’s nunc pro tunc order—we do not have authority to review 

the underlying conviction or other ancillary matters related to the conviction. See 

Blanton v. State, 369 S.W.3d 894, 900, 904 (Tex. Crim. App. 2012). “The right of 

appeal before this Court is limited to the validity of the nunc pro tunc entry.” Moore v. 

State, 446 S.W.2d 878, 879 (Tex. Crim. App. 1969); see also Cunningham v. State, 

322 S.W.2d 538, 540 (Tex. Crim. App. 1959) (“In cases such as this the right of 

appeal, if any, is limited to the validity of the nunc pro tunc entry. Appellant is not 

entitled to appeal from the conviction itself . . . .”); Collins, 240 S.W.3d at 929

(explaining that an appeal from a nunc pro tunc order is not the correct procedure for 

deciding an issue related to the defendant’s conviction). 

This court and numerous other Texas courts of appeals have consistently 

applied this jurisdictional principle regarding the limited review in an appeal of a nunc 

pro tunc order. Loftin v. State, No. 02-11-00366-CR, 2012 WL 5512391, at *3 (Tex. 

App.—Fort Worth Nov. 15, 2012, no pet.) (per curiam) (mem. op., not designated for 

publication) (holding that as an appellate court reviewing the direct appeal of a nunc 

pro tunc order, court was precluded from considering complaint regarding underlying 

conviction); Allen v. State, Nos. 01-16-00707-CR, 01-16-00708-CR, 2016 WL 7473940, 

at *1 (Tex. App.—Houston [1st Dist.] Dec. 29, 2016, no pet.) (per curiam) (mem. op., 

not designated for publication) (“However, an appeal of a judgment nunc pro tunc is 
7

limited to issues related to the clerical errors addressed in that judgment and does not 

provide an opportunity to raise issues relating to the original conviction and 

sentence.”); Hill v. State, No. 05-14-01067-CR, 2015 WL 2394099, at *2 (Tex. App.—

Dallas May 18, 2015, pet. ref’d) (mem. op., not designated for publication) 

(“Appellant seeks to use the July 22, 2014 nunc pro tunc order to change, on appeal, 

the judicial determination of his underlying conviction, which is not a permissible 

purpose of the nunc pro tunc order.”); Barnett v. State, No. 06-14-00149-CR, 2015 WL 

5999663, at *2 (Tex. App.—Texarkana July 24, 2015, pet. ref’d) (mem. op., not 

designated for publication) (“Consequently, the appeal of a judgment nunc pro tunc is

limited to issues related to the clerical errors addressed therein; it does not provide the 

appellant an opportunity to raise issues relating to the original conviction and 

sentence.”). Thus, this court does not have the authority to address Weatherly’s 

attack on the constitutionality of Chapter 62 in this appeal. Loftin, 2012 WL 5512391, 

at *3; see also State v. Rowe, 285 S.W.3d 614, 619 (Ark. 2008) (holding that a trial court 

cannot rule a statute unconstitutional post-conviction via nunc pro tunc because it is 

“an attempt to have the record reflect what should have happened and not what 

happened but was not recorded”); State v. Al-Hafeez, 305 N.W.2d 379, 380 (1981) 

(“The limited remedy available in an application for an order nunc pro tunc will not 

be extended to question the constitutionality of the actions taken or declined to be 

taken by the trial court, but is limited to the specific purpose of that proceeding, i.e., 
8

to correct the record to accurately reflect what actually happened in the

proceedings.”). We overrule the remaining portion of Weatherly’s sole issue.2

C. The Dissent

The dissent presents a number of issues that it has with the majority opinion

and our position that we should not address Weatherly’s constitutional claim in this 

appeal. We will address these issues in turn. 

1. Jurisdiction over Weatherly’s Appeal

According to the dissent, “The majority holds that this court does not have 

‘jurisdiction’ over Weatherly’s appeal from the fourth nunc pro tunc order.” This is 

incorrect. Indeed, we have addressed the portion of Weatherly’s complaint on appeal 

2Even though we conclude that we do not have jurisdiction to address 

Weatherly’s constitutional claim, it is worthy of note that, as the dissent points out, 

there is a split of authority across the country on the constitutionality of statutes 

requiring sex offender registration for persons convicted of a crime involving no 

sexual component like kidnapping and unlawful restraint of a child. In addition to the 

dissent’s recognition that the Wisconsin Supreme Court and an Illinois appellate court 

have found the statutes requiring the sex offender registration of nonsexual offenders 

constitutional, eight other states have also held that such statutes are constitutional. 

See Collins v. Thomas, No. 212-cv-950-WHA, 2015 WL 5125750, at *7 (M.D. Ala. 

Aug. 31, 2015) (Alabama); State v. Coleman, 385 P.3d 420, 426 (Ct. App. 2016) 

(Arizona); Rainer v. State, 690 S.E.2d 827, 829 (2010) (Georgia); Moffitt v. Commonwealth, 

360 S.W.3d 247, 255–57 (Ky. Ct. App. 2012) (Kentucky); People v. Bosca, 871 N.W.2d 

307, 355–56 (2015) (Michigan); Thomas v. Miss. Dep’t of Corr., 248 So. 3d 786, 790–91 

(Miss. 2018) (Mississippi); People v. Cintron, 827 N.Y.S.2d 445, 460 (N.Y. Sup. Ct. 

2006), aff’d sub nom., People v. Knox, 12 N.Y.3d 60, 65 (2009) (New York); State v. 

Sakobie, 598 S.E.2d 615, 619 (2004) (North Carolina). As far as states that have found 

such statutes unconstitutional, in addition to Florida and Ohio that the dissent points

out, only New Mexico joins the minority of state courts to have found this type of 

statute unconstitutional. See ACLU of N.M. v. City of Albuquerque, 137 P.3d 1215, 1226

(N.M. Ct. App. 2006). 
9

about whether the trial court erred by entering the nunc pro tunc judgment. Our 

decision to overrule this portion of Weatherly’s issue is founded on well-established 

law—namely, a statute which mandates that the judgment must include sex-offenderregistration requirements and a child victim’s age when a person has been convicted 

of a crime listed in Chapter 62, including some crimes that involve no sexual 

component. Dewalt, 417 S.W.3d at 681–90; Williams, 2018 WL 3468458, at *4. 

What we have held in this case is that this court has limited jurisdiction in the 

appeal of a judgment nunc pro tunc. Blanton, 369 S.W.3d at 900, 904. In support of 

its argument that Weatherly has the right to appeal the fourth nunc pro tunc 

judgment, the dissent cites to general cases about timely perfecting an appeal from a 

judgment nunc pro tunc. See Williams v. State, 603 S.W.3d 439, 446–47 (Tex. Crim. 

App. 2020).

3 We have not suggested that Weatherly failed to timely perfect his appeal, 

but rather we have relied upon the well-established rule that our review in an appeal 

from a nunc pro tunc judgment “is limited to the validity of the nunc pro tunc entry.” 

Moore, 446 S.W.2d at 879.

3We agree with the dissent that Williams stands for the proposition that our 

jurisdiction is invoked by Weatherly’s timely notice of appeal from the trial court’s 

nunc pro tunc judgment. But a timely notice of appeal does not change the nature or 

scope of our review. 
10

2. “Authority” to Address Weatherly’s Claim

According to the dissent, we have “also cast[] doubt on this court’s ‘authority’ 

to address the merits of Weatherly’s claim” and we have “narrow[ed] the scope of this 

court’s review.” However, the dissent acknowledges that in “an appeal from a nunc 

pro tunc order, a defendant cannot challenge his or her underlying conviction and 

sentence.” Cunningham, 322 S.W.2d at 540. That is not the only limitation on our 

reviewing jurisdiction. As mentioned above, our review of a judgment nunc pro tunc 

is limited to the validity of the entry. Moore, 446 S.W.2d at 879. This limited review is 

further restricted, as the dissent notes, to issues related to clerical errors only. Id. The 

correction of clerical errors by nature cannot involve judicial reasoning. Poe, 

751 S.W.2d at 876. Analyzing the constitutionality of a statute is the epitome of a 

judicially-reasoned endeavor. Ex parte Madding, 70 S.W.3d 131, 135 n.8 (Tex. Crim. 

App. 2002) (recognizing that analyzing a due process claim is not the correction of a 

“mere clerical error in the judgment”).

Despite writing several pages of a judicially-reasoned analysis regarding the 

constitutionality of Chapter 62 as applied to Weatherly, the dissent continues to assert

that such a task is merely the correcting of a clerical error. However, such a judiciallyreasoned endeavor far exceeds the scope of a nunc pro tunc review. 

The trial court in this instance appropriately entered the findings because the 

law makes clear it had no choice to do otherwise. Dewalt, 417 S.W.3d at 681–90; 

Williams, 2018 WL 3468458, at *4. Entering the findings involved no judicial 
11

reasoning at all. If the trial court in this case had addressed Weatherly’s argument that 

Chapter 62 is unconstitutional as applied to him, it would have then been attempting 

to correct a “judicial” error, and the trial court would have engaged in “judicial 

reasoning” regarding its nunc pro tunc entry. See Madding, 70 S.W.3d at 135 n.8 (“This 

case involves due process, not the issue of a mere clerical error in the judgment.”). 

This a trial court cannot do. See Fanniel v. State, 73 S.W.3d 557, 560 (Tex. App.—

Houston [1st Dist.] 2002, no pet.) (reasoning that a “nunc pro tunc judgment made to 

correct a judicial error is void”). And because the scope of our jurisdiction is limited 

to the propriety of the trial court’s nunc pro tunc entry, this court would be 

improperly stepping outside its own jurisdiction by engaging in the same judicial 

reasoning. See Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 

2005, no pet.) (“A clerical error does not result from judicial reasoning, evidence or 

determination. Conversely, a judicial error arises from a mistake of law or fact that 

requires judicial reasoning to correct. A judicial error occurs in the rendering, rather 

than the entering of the judgment.”) (internal citations omitted). Thus, we cannot 

agree with the dissent’s choice to engage in the judicially-reasoned endeavor of 

analyzing whether Chapter 62’s requirements are unconstitutional as applied to 

Weatherly.

To support its position that analyzing the constitutionality of Chapter 62 as 

applied to Weatherly is merely the correction of a clerical error, the dissent relies on 

the Texas Court of Criminal Appeals’ order dismissing Weatherly’s habeas corpus 
12

application without prejudice pending the outcome of this very appeal. Ex parte

Weatherly, No. WR-61,215-09, 2020 WL 913277, at *1 (Tex. Crim. App. Feb. 26, 2020) 

(per curiam). Specifically, the dissent states that the Court of Criminal Appeals noted 

in its order that the appeal before this court involves “appellate remedies with regard 

to the judgment nunc pro tunc,” and that some of Weatherly’s habeas claims involve 

“the validity of the judgment nunc pro tunc.” Id. These are correct statements, and we 

have addressed in the majority opinion the validity of the fourth nunc pro tunc

judgment. Nowhere in the Court of Criminal Appeals’ order dismissing Weatherly’s 

habeas corpus application, however, does the Court of Criminal Appeals suggest that 

this court should analyze the constitutionality of a statute that required the trial court 

to make specific findings in its judgment. 

The dissent also relies on an unpublished case from our sister court of appeals 

in Amarillo for the proposition that attacking the constitutionality of a statute that 

requires mandatory findings to be included in the judgment can be reviewed in an

appeal of a nunc pro tunc judgment. Evans v. State, Nos. 07-17-00249-CR, 07-17-

00250-CR, 07-17-00251-CR, 2018 WL 5305500, at *1–3 (Tex. App.—Amarillo Oct. 

25, 2018, pet. ref’d) (mem. op., not designated for publication). According to the 

dissent, the Evans court analyzed the constitutionality of the statute requiring the 

inclusion of deadly-weapon findings that were first entered in a set of judgments that 
13

the trial court called “nunc pro tunc.”

4

 While we agree that the procedural posture 

laid out in Evans is amenable to differing views, we conclude that the dissent’s reliance 

on Evans is misplaced because the judgments were not in fact nunc pro tunc.

5

 Id. 

Evans in actuality was an appeal from a judgment modified during the trial 

court’s plenary power. A review of the Amarillo court of appeals’ website6and the

“Case Events” log regarding Evans’s appeals demonstrates that the trial court

imposed sentence on June 28, 2017. Evans filed both his notice of appeal and his 

motion for new trial on July 10, 2017. The “nunc pro tunc judgments” were entered 

on September 5, 2017. Nowhere else in the Amarillo court’s “Case Events” log does 

4There were three judgments in Evans. 2018 WL 5305500, at *1.

5We do note that the Evans court specifically stated that Evans was appealing 

“his convictions for aggravated assault with a deadly weapon.” Id. 

6While the dissent asserts that “the majority’s discussion of these outside-of 

the-opinion facts is improper and not relevant,” this court recently did just that in 

another case, wherein we reviewed the “briefing of the parties contained in the

original record in the supreme court to guide us as to the basis of its reasoning”

because the opinion being analyzed was “textually silent as to supportive interpretive 

authority.” In re State Farm Mutual Auto. Ins., No. 02-20-00144-CV, 2020 WL 6788961, 

at *13 (Tex. App.—Fort Worth Nov. 19, 2020, orig. proceeding). We also noted in

that opinion that “[a] court of appeals may similarly examine and take judicial notice 

of the original record in proceedings before the supreme court and the court of 

criminal appeals through a search of their respective websites.” Id. at n.9; see also 

Goodman v. State, No. 07-07-0502-CR, 2008 WL 315710, at *1 (Tex. App.—Amarillo 

Feb. 5, 2008, no pet.) (mem. op., not designated for publication) (taking judicial notice 

of a different court of appeals’ website to determine whether an appeal of a trial court 

cause number referenced in appellant’s petition was currently pending before that 

court); Brooks v. State, No. 07-07-0505-CR, 2008 WL 248991, at *1 (Tex. App.—

Amarillo Jan. 30, 2008, no pet.) (mem. op., not designated for publication) (same).
14

it show that Evans attempted to directly appeal the trial court’s September 5, 2017 

entries. Evans’s motion for new trial extended the trial court’s plenary power, and 

thus even though the trial court titled the judgments “nunc pro tunc,” what actually 

occurred in Evans was that the trial court modified its judgments within its plenary 

power; the use of the term “nunc pro tunc” in the judgments was simply a misnomer. 

See Williams, 603 S.W.3d at 443 (“[B]ecause the trial court’s two post-October 6 orders 

were not nunc pro tunc orders (despite being labeled as such) but were appropriate 

exercises of its plenary power over its judgment, the cases relied on by the State . . . 

are inapposite to the case at hand.”).

7

 Because Evans is an appeal made during the trial 

court’s plenary power, it does not support the dissent’s position. 

3. Habeas Corpus as an Avenue of Addressing Weatherly’s Complaint

The dissent argues that there is a “logistical” problem with our review being 

limited in such a way that we cannot address Weatherly’s constitutional claim. To 

that, the dissent asks the question, “When was Weatherly supposed to challenge the 

trial court’s denial of his motion to declare the SORP[

8

] facially unconstitutional or to 

attack the addition of the SORP findings?” Our response is that Weatherly’s avenue 

7

Ironically, the judgments in Evans still contain clerical errors by stating that the 

date of the written judgments were entered on June 1, 2017, which is impossible given 

that sentencing was imposed on June 28, 2017. The correction of the date of 

judgments entered would be corrections to clerical errors and would be a proper entry 

for a nunc pro tunc order. 

8The dissent uses the term SORP to stand for sex-offender registration

program. 
15

for redress concerning his constitutional complaint is by way of a postconviction writ

of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07. 

Numerous cases have allowed defendants to address complaints regarding their 

guilty pleas through postconviction writs of habeas corpus. See Ex parte Aguilar, 537 

S.W.3d 122, 124 (Tex. Crim. App. 2017); Ex Parte Moussazadeh, 361 S.W.3d 684, 686 

(Tex. Crim. App. 2012); Ex parte Harrington, 310 S.W.3d 452, 455 (Tex. Crim. App. 

2010). While we do not decide here whether Weatherly’s complaint has merit, we 

merely note that there are other possible avenues to attack his plea aside from

expanding our review of nunc pro tunc judgments. 

In Moussazadeh, after the applicant pleaded guilty to murder, and after his 

murder conviction was affirmed on direct appeal, the applicant sought a 

postconviction writ of habeas corpus contending that his mistaken understanding of 

parole eligibility based on misinformation from his trial counsel rendered his guilty 

plea involuntary. 361 S.W.3d at 686. The Moussazadeh court reasoned that because 

the “terms of the relevant parole-eligibility statute are succinct and clear with respect 

to the consequences of a guilty plea” then “[t]he performance of applicant’s counsel 

was deficient” for not properly informing Moussazadeh. Id. at 691. The Moussazadeh

court held that the applicant “sufficiently proved that his counsel was constitutionally 

deficient” and vacated Moussazadeh’s plea. Id. at 692.

Similarly, in Harrington, the applicant sought postconviction habeas relief 

contending that his guilty plea was involuntary because of his trial counsel’s failure to 
16

investigate a prior DWI conviction used by the State to enhance applicant’s 

misdemeanor DWI charge to a felony. 310 S.W.3d at 454. Based on his trial 

counsel’s erroneous advice, applicant pleaded guilty to felony DWI. Id. Because the 

applicant had been wrongly convicted of a felony conviction, and even though he had 

already been discharged from incarceration, he lost his job with the Texas Workforce 

Commission. Id. at 459. The Harrington court reasoned that applicant’s loss of his job 

was a collateral consequence to his plea and that habeas corpus was therefore the 

proper vehicle to bring his complaint. Id. The court held that applicant had met his 

burden of showing a reasonable probability that, but for counsel’s erroneous advice, 

he would not have entered a guilty plea. Id. at 459–60. 

And strikingly similar to Weatherly’s situation, in Aguilar, a Honduran national 

with temporary protected status pleaded guilty to the state-jail felony of attempting to 

evade arrest in a motor vehicle. 537 S.W.3d at 124. Prior to his plea, Aguilar’s plea 

counsel was advised by an immigration attorney that a felony conviction that carried 

with it a six-month jail sentence would render Aguilar removable from the country. 

Id. at 128. After plea counsel acknowledged to both Aguilar and the immigration 

attorney that he understood the law and could negotiate a plea that allowed Aguilar to 

retain his temporary protected status and remain eligible for legal residence, plea 

counsel negotiated an agreement whereby Aguilar pleaded guilty and received a sixmonth jail sentence. As a result, Aguilar lost his legal nonimmigrant status and was 

ineligible to reapply for protected status. Id. at 126. The Texas Court of Criminal 
17

Appeals reasoned that plea counsel had negotiated a plea he believed conformed with 

the immigration attorney’s advice, but it did not. Id. The court held that counsel’s 

“[d]eficiency is easy to find in this case” and that Aguilar had shown that he would 

not have pleaded guilty if he had been correctly advised of the relevant immigration 

consequences. Id. at 128. The court vacated Aguilar’s plea. Id. at 129; see also Ex parte 

Trejo, 602 S.W.3d 918, 918–19 (Tex. Crim. App. 2020) (granting application for 

postconviction writ of habeas corpus on the ground that his counsel did not properly 

inform him of the immigration consequences of his guilty plea). 

Like the applicants in Moussazadeh, Harrington, Aguilar, and other cases9 who all 

entered guilty pleas based on misinformation or the failure to be properly admonished 

from their trial attorneys about the consequences of their pleas, there are other 

avenues of relief for applicants dissatisfied with their pleas. If an applicant prevails, 

pleas can be vacated. If an applicant then faces the same charges and the same 

9

In an unpublished opinion, the Texas Court of Criminal Appeals granted

habeas relief and vacated a defendant’s judgment predicated on his plea of nolo 

contendere where trial counsel affirmatively misadvised the defendant about the sexoffender-registration consequences of pleading to attempted sexual assault. Ex parte 

Covey, No. PD-0145-09, 2010 WL 1253224, at *8 (Tex. Crim. App. Mar. 31, 2010).

Covey serves as another example regarding Weatherly’s ability to attack the judgment 

and the complained-of findings outside of an appeal from a nunc pro tunc judgment. 

Id.; see also Ex parte Hernandez, No. WR-83,596-01, 2015 WL 5076888, at *1 (Tex. 

Crim. App. Aug. 26, 2015) (concluding that applicant who claimed ineffective 

assistance of counsel because trial counsel failed to inform him that he would have the 

duty to register as a sex offender as a result of his aggravated kidnapping conviction

had “alleged facts that, if true, might entitle him to relief” and remanding habeas 

corpus application to trial court to make findings). 
18

statutory issues, they can raise the issues through the normal course of pretrial, trial, 

and appellate challenges. 

Citing Meyer v. State, 310 S.W.3d 24, 26 (Tex. App.—Texarkana 2010, no pet.),

the dissent claims that we have chosen Weatherly’s issues for him and advised him 

how and where to argue, thus straying outside the boundaries of this court’s duties. 

But Meyer involved a reviewing court’s declining to make arguments for an appellant

who had refused, despite repeated requests and allowances by the court, to correct his 

inadequate and improper briefing. Id. It does not stand for the proposition that a 

reviewing court cannot suggest that there are other avenues of redress, especially in 

response to a dissent’s suggestion that there are no other avenues of redress. Id. 

Notably, “[t]he court of criminal appeals has repeatedly explained that the writ of

habeas corpus is the appropriate vehicle to raise ineffective assistance of counsel 

claims because many such claims involve omissions, rather than commissions readily 

ascertainable on the face of the trial record, and the writ of habeas corpus affords the

applicant the opportunity to develop, through testimony, a thorough and detailed 

record of the alleged ineffectiveness.” Ex parte Okere, 56 S.W.3d 846, 856 (Tex. 

App.—Fort Worth 2001, pet. ref’d); see also Ex parte Townsend, 137 S.W.3d 79, 83 (Tex.

Crim. App. 2004) (“Additionally, I find it ironic that the majority would rule this way 

when this Court consistently dismisses ineffective assistance of counsel claims on 

direct appeal by stating that such issues are better addressed by a writ of habeas 

corpus.”) (Meyers, J., dissenting); Pieringer v. State, 139 S.W.3d 713, 720 (Tex. App.—
19

Fort Worth 2004, no pet.) (“In this instance, an application for writ of habeas corpus 

is the more appropriate vehicle for Appellant’s claim.”).

10

 

The dissent also seems to imply that, through an application for habeas corpus,

Weatherly would not be attacking the facts of or duration of his conviction and thus

seeking habeas corpus relief would be improper. See, e.g., In re Daniel, 396 S.W.3d 545, 

548 (Tex. Crim. App. 2013); Ex parte Rieck, 144 S.W.3d 510, 519 (Tex. Crim. App. 

2004). In doing so, the dissent cites to Daniel which makes synonymous the terms

“conviction” and “restraint.” 144 S.W.3d at 519. However, the term “restraint” has 

been broadly construed. See Ex parte Cathcart, 13 S.W.3d 414, 417 (Tex. Crim. App. 

2000) (“As has been noted in other cases, the term ‘restraint’ has been construed 

broadly in the context of habeas corpus writ applications.”); see also Ex parte Bain, 

568 S.W.2d 356, 358 (Tex. Crim. App. 1978) (holding that a court order compelling 

attorneys to represent a defendant without compensation constitutes a “restraint”); 

Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977) (holding that the imposition 

of unconstitutional conditions of probation constitutes a “restraint”). Accordingly, an 

application for writ of habeas corpus remains an avenue of relief for Weatherly.

10The dissent takes varying positions about whether Weatherly has other

avenues of redress to bring his constitutionality claim. At one point, the dissent states 

that it is “not contending that Weatherly’s timely appeal is his only remedy; in fact, it 

may not be.”
20

4. Judge Yeary’s Concerns Regarding the Third Nunc Pro Tunc

Judgment

The dissent also argues that we have made the concern from Judge Yeary’s 

dissenting opinion in the Court of Criminal Appeals’ order to vacate the Chapter 62

findings in the third nunc pro tunc order a reality. Weatherly, 2019 WL 4318459 at *1 

(Yeary, J., dissenting). In that opinion, Judge Yeary expressed concern that if the 

court vacated the third nunc pro tunc judgment, Weatherly could potentially forfeit 

his right to challenge the nunc pro tunc judgment on appeal. Id. However, Judge 

Yeary’s concern did not become a reality since Weatherly is before this court on a 

direct appeal from the fourth nunc pro tunc judgment after the third nunc pro tunc 

judgment was vacated. In addition, we have addressed, within our limited scope of 

review, Weatherly’s contention that the trial court erred by entering the Chapter 62 

findings. Our following of the law regarding the limited review we have of judgments 

nunc pro tunc in no way has caused Weatherly to forfeit his appeal. Blanton, 

369 S.W.3d at 904. 

5. Validity Claims

Next, the dissent argues that a “validity” claim is cognizable in an appeal from a 

judgment nunc pro tunc. But the majority of the cases cited by the dissent for this 

proposition are direct appeals or writs for mandamus which involved judicial 

reasoning. See In re Lester, 602 S.W.3d 469, 475 (Tex. 2020) (orig. proceeding); Karenev 

v. State, 281 SW.3d 428, 438 n.9 (Tex. Crim. App. 2009) (Cochran, J., concurring); Kelly 
21

v. State, 724 S.W.2d 42, 44 n.2 (Tex. Crim. App. 1987). The only other authority the 

dissent cites is the Court of Criminal Appeals’ order dismissing without prejudice 

Weatherly’s latest habeas corpus application. Weatherly, 2020 WL 913277, at *1.

According to the dissent, a postconviction habeas corpus “could be closed to”

Weatherly. But the court pointed out in its dismissal order that “the validity of the 

judgment nunc pro tunc does affect some (but not all) of the claims [Weatherly] raised in 

his application for writ of habeas corpus.” Id. Nothing in the court’s order suggests 

that Weatherly is foreclosed from pursuing a postconviction habeas corpus 

application to address any of his other claims.

The dissent takes this same approach to the trial court’s denial of Weatherly’s 

motion to declare Chapter 62 unconstitutional as applied to him. According to the 

dissent, “By considering and denying Weatherly’s motion to declare the SORP 

unconstitutional as applied, the trial court seemingly agreed that it had the authority to 

determine the constitutionality of the State’s request to enter a nunc pro tunc order.” 

The trial court made no such determination. Rather, the trial court understood its

role in entering judgments nunc pro tunc and denied Weatherly’s motion because it 

would have involved judicial reasoning to determine the constitutionality of Chapter 

62 as applied to him. See Fanniel, 73 S.W.3d at 560 (“A nunc pro tunc judgment made 

to correct a judicial error is void.”). 

In sum, we do not have the jurisdiction to review a trial court’s nunc pro tunc 

order by engaging in judicial reasoning, which is what the dissent suggests that we do,
22

and which the dissent has done. See Madding, 70 S.W.3d at 135 n.8. Thus, we 

respectfully disagree with the dissent.

IV. CONCLUSION

Having overruled Weatherly’s sole issue on appeal, we affirm the trial court’s 

judgment.

/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: January 7, 2021