## In the Court of App eals Second Appellate District of Texas

at Fort Wor t h

________________________ ___ No. 02

- 19

- 003 94

- CR

_____ ______ ________________

On Appeal from th e 3 71st District Court Tarra nt County, Texas Trial Court No. 1380491D

Before Sudderth, C.

J

. ; Womack and Wallach, JJ. Memor andum Opinion by Justice Woma c k Concurring M emorandum Opinion by Chief Jus tice Sudderth Dissenting Mem orandum Opi nion by Justice Wallach 

### R OHN 

### M. W EATHERLY 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDU M OPINION
I. I NTRODUCTION Appellant Rohn M

. Weatherly a p peals the trial court ’ s “ Nunc Pro Tunc Order Correcting Minutes of the Court ” in whic h the trial court amended its January 15,
2 016 judgment o f convicti on to contain s ex
- o ffende r

- r egi stration r equire m ents and the age of Weath erly ’ s victim at the time the o ffense occurred

. We affirm.
II. B ACKGROUND In October 2015, Weatherly ple aded guilty to the unlawful restraint of a child
under t h e age of seventeen with out a senten cing r ecommendation by the State

. See Weatherly v. State , No s . 0 2

- 16

- 00026

- CR, 02

- 16

- 0 0 02 7

- CR , 2016 WL 7157300, at *1 (Tex. App.

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

. Aft e r the preparation of a pre

- sentenci ng rep ort and the hold i ng of a punishment hearin g , the trial cour t sen tenced Weatherly to fift e e n years ’ confinement.
The tri al court ’ s January 15, 2016 ju dgmen t re flected that s ex
- o ffender

- r egistration

r equirem e nts did not apply to We atherly and that t he age of the vi c tim at the time of
the of fense was “ N/A. ” On direct appeal, this court affirmed the trial court ’ s ju dgment. Id

. On October 18, 2 01 9 , the trial court rendered a nunc pro tunc order 1 ame n ding
the January 15, 20 16 judgment to ref lec t that s ex
- o ff

ender

- r egistration r equir ements

1 There are four nunc pr o tu nc orders th at we re ent er ed in this case after j ud gment
. T he first o rder a me n ded the judg m e nt ’s “Judge Pres iding ” f ield , add ing3

did apply to Weatherly and that the ag e of the victim at t h e time of the offense “ was younger than 17 years of age

. ” This appeal foll owed.
III. D ISCUSSION In his sole issue, Weat herly argues that the trial court e rred by entering the

nunc pro tunc order m odifying the January 15, 201 6 judgment and that Chapter 6 2 of
the Texa s Cod e of Criminal Procedure

— the s tatute which mandates that individuals
convicted of the unlawful restraint of a child b e requ ir ed to adhere to s ex
- o ffender

r egistratio n r equirements

— is unconstitutional as applied to him

. We conclud e that
th e trial court prope rly en tered its nunc pro tunc order and that Weatherly ca n not attack the constitu tionality of Chapt er 62 in this a pp eal.
A. The Trial Court ’ s Nunc Pro Tunc O rder Weatherly first argues that the trial court erred by entering the nunc pr o tunc order. We d is agre e. A judgment nunc pro tunc is the appropriate ave n ue to make a correction
when the co urt ’ s records do not mi rror the judgme nt that wa s actually rendered.
the mag istra te ’s name

. The s e cond order corrected the “ Time Credited ” fie ld. The third order amended the jud gme nt to ref l e c t sex

- offe nder

- regi stration requi re ments and the age o f Weathe r ly’s victim a t the time of th e comm is s ion of th e offense. This third o rder, h o w ever, was overturned by the Texas Court of C riminal A ppeals because Weatherly was not pro vid ed notice or a n opp o r t unity to be heard. Ex pa rte Weath erly , No. WR

- 61,21 5

- 07, 2019 WL 4318459, a t *1 (T ex. C ri m . Ap p. Se pt. 11, 2 01 9) ( n ot design ated for public a t

ion). It is the fourth nunc pro tunc order that Wea t herly now appeals , and t he record re fle cts that Weath erly w a s given proper notice an d that the trial c our t held a hearing with the State and Wea therl y p r e se nt be fore ente ri ng th e order

.4

Collins v. State , 240 S

. W.3d 925, 928 (Tex. Crim. App. 2007) ; Alvarez v. S t ate , 605 S.W.2d 61 5, 617 (Tex. Crim. App. 1980). This means that a trial c o urt can fix a
clerical error in the recor d, but only err or s that were not the resul t of judicial reasoning are considered cleric a l errors that can b e fixed by a nunc pro tunc orde r . Ex parte Poe , 7 51 S.W .2d 873, 876 (Tex. Crim. App. 1988). However, t he t rial court cannot, thro ugh a nunc p ro tun c order , change a court ’ s record s to refle ct what it
believes should have been done. C o llins , 240 S.W.3d at 928. And w hen the law requir e s the tria l court to ent er a particular finding in the written judgment of

c onviction, the trial co urt “retain[ s] no discretion to d o otherwise,” and “the fail ure of the trial judge to do so [is] not an e r ror of judicial reas oning but rather an error of a
clerical n ature.” Poe , 751 S.W.2d at 876. Even though the unlawful restr a int of a child i s not c onsidered a “ sex o ffense , ”
it is no netheless a “ [r

]eportable conviction ” that triggers Chapter 62 ’ s r egis t ration obligations

. See Tex. Code Crim. Proc. Ann

. art. 62.001(5)(E) ; Dewa lt v. State , 417 S.W.3d 678, 68 1

– 9 0 (Tex. App.

— Aust i n 2013, pet. ref

’ d)

. C iting Dewalt

, t his

court has held t hat the s ex
- o f fender

- r egi stration r equirements and a child victim ’ s ag e

are stat utorily man dated to be included in a tria l court ’ s judgment when a person has
been convicted of a crime listed in Cha p ter 62. Williams v. St ate , No. 02

- 17

- 000 01

- CR,
2018 WL 34 68458, at *4 ( Tex. App.

— F ort Worth July 19, 2018) (mem. op., not desig n ated for publication ) , aff’d , 603 S.W.3d 439 (Tex. Crim. App. 2020). Th i s court further held in Williams that the addition of the re gistration requir ement and th e5

vict im ’ s age to a j ud gment is a “ cl erical act, not a judicial one, appropriate

. . . for a

n unc pro tunc order. ” Id

. Not only are these addit i ons a clerical act , but the trial cour t has no discretion b ut to include th e m in a judgment because the Texas C ode of
Crim inal Proce du re requires th e trial cou rt to enter these specific statements
. Tex.
C ode Crim. Proc. art. 42.01, § 1(27) ( “ The judgment shall reflect: . .

. In the event of conviction of an offense for which reg i stration as a sex offen der is requi red un de r Chapter 62, a statement tha t the regis tration requirement of that chapter applies t o the
defendant and a statement of the age of the v i cti m of the offens e . ” ) ; Poe , 751 S.W.2d
at 876. In this case, Weatherly p l eaded gu ilty to the unl awful restra int of a child , and

t he victim ’ s age at the time of the offense was four years old. Weatherl y , 2016 WL 7157300, a t *1 . As such, the requiremen t s o f Chapter 62 ar e met, and the trial court was required to include s ex
- o f f ender

- r egistration r equ irements and the a ge of Weatherly ’ s victim in the judgment. Tex. Code Crim. Proc. art s . 42.01, § 1(27) , 6 2.001(5)(E) ; see Tex. Pen al Code Ann. § 2 0

. 0 2 . T h u s, th e trial court did n ot err by rendering i ts nunc pro tunc order. We ov e rrule t his portion of W eatherly ’ s s ole is sue. B. Weathe rl y ’ s Constit u t ional Argume nt In the remainder of his sole issue, Weat h erly complains that Ch apter 62 is
unconstitutional as ap plied to him b ecaus e he did not commit a sex offense . The State argue s that this court does n ot have juri sdicti on to hear this c omplaint. We agree with the State.6

Just as a trial court may not correct erro rs that are the result of judicial
reasoni n g via nunc p ro tunc , a reviewing court has limited jurisdiction to consider the proprie ty of a tria l cour t’s nunc pro tu nc order

— we do not have aut hority to review the underlying conviction or other ancillary matt ers related to the conviction

. Se e Blanto n v. St

ate , 3 69 S.W.3d 894, 900, 904 (Tex. Crim. App. 2012)

. “T h e right of appeal befor e this Court is li mited to the va li d ity of the nunc pro tunc entry.” Moore v.
State , 446 S.W.2d 878, 879 (Tex. Crim. App. 196 9) ; see also Cunningham v. State , 322 S.W. 2 d 538, 540 (

Tex. Crim. App. 1959) (“In cases such as this the r i ght of appeal, if an y, is limited t o the validity of the n unc pro tunc entry. Appe llant is not entitled to appeal from the conv i ction itself

. . . . ”); Collins , 240 S.W.3d at 929 (explaining that a n appe al from a nunc pro tunc order is not the correct pr o cedure for deciding an issue relat e d to t he defendant ’ s co nviction ).
This court a nd numerous other Texas courts of appeals hav e c onsistentl y applied this jurisdictional principle regarding t he lim ited r eview in an appeal of a nunc pro tunc order. Lofti

n v. State , No. 02

- 11

- 00 3 66

- CR, 201 2 WL 55 12391, at *3 (T ex . App.

— Fort Worth Nov. 15 , 2012, no pet.) (per curiam) (mem. op., not d esignated for publication ) (holding that as an appellate court review ing th e direct appeal of a nunc pro tunc order, court was precluded from consider ing complai n t rega rding underlyin g conviction) ; Allen v. Sta te , No s . 01

- 16

- 00707

- CR, 01

- 16

- 0070 8

- CR , 2016 WL 74739 40, at *1 (Tex. App.

— Houston [1st Dist.] Dec. 29, 2016 , no pe t.) (p er curiam) (mem. op., not designated for publicatio n ) (“However, an appeal of a judgme n t nunc pro tunc is7

li mi ted to issues related to the clerical errors addressed in that judgmen t and does not provide an opportunity to raise issues re lating t o the origin al conviction and sentence.”); Hill v. State , No. 0 5

- 14

- 01067

- CR, 2015 WL 2 394099, at * 2 (Tex . App.

— Dallas M ay 18, 2015, pet. ref ’ d ) (m em. op., not designated for publication) (“Ap p ellant seeks to use the July 22, 2014 nunc pro tunc ord er to c h ange, on app eal, the judicial determination of h is underlying c o nviction, which is not a permissib l e purp ose of the nunc p ro tunc order.”); Barnett v. State , No. 06

- 14

- 00149

- CR, 2015 WL
599966 3 , at *2 (Tex. App.

— Texarkana July 24, 2015, pet. ref’d) (mem. o p., no t desi gnated for publication) (“Consequently, the appeal o f a judgment nunc pro t unc is
limi t ed to issues related to the clerical errors addr essed therein; it does not provide the appell a nt an opportunity to raise issues relating to the origi nal con v iction and

s entence.”)

. Thus, this court does not have the aut h ority to address Weathe rly ’ s

attac k on th e co nstitutiona li ty of Chapter 62 in this appeal

. Loftin , 2012 WL 5512391,
at *3 ; see a lso State v. Rowe , 285 S.W.3d 614, 619 (Ark. 2008) ( hol ding th a t a tr ial co urt

cannot rule a statute unconstitutional post

- con v iction via nunc pro tun c because i t is
“a n attempt to ha ve the record reflect what should have happened and not what happened bu t was not recorded” ) ; State v. Al

- Hafeez , 305 N. W.2 d 3 79, 38 0 ( 1 981) (“The limited remedy available in an application for an orde r nunc pro t unc wi ll not
be exten de d to question the constit utionality of the actions taken or declined t o be taken by the trial court, but is limited to the spe cific pu rpose of tha t proceed i ng, i. e.,8

to correct the record to accura t ely reflect what actual ly happened in the proceedings.”)

. We overrule the remainin g po rtion of Weatherly’s sole issue. 2
C. The Dissent
The dissent presents a number of issue s that it has wit h the maj ori ty opinio n and our position that we should not addr e ss Weatherly ’ s constitu tiona l claim in this appeal

. We will address these issues in turn
. 1. Jurisdict ion over Weatherly ’ s A p peal According to the dissent, “ T he majority holds that this cou rt does n ot have ‘jur i sdiction’ over We atherly’s appeal from t h e fourth nunc pro tunc order.” This is
incorrect. Indeed, we have addressed the portion of Weatherly ’ s complaint on a ppeal

2 Even though we conclude that we do not have jurisdiction to address Weatherly’s co nstitutional claim, it is worthy of note th a t , as the di ssent poin ts out, t here is a split o f authority a cross the c o untry on the constit u t ionality of stat utes requir i n g sex offender re gistration for perso ns convicted of a crime involving no sexual c omp onent like kidnapping and unlawful restraint o f a child. In addit ion to t h e dissent’s recog nition that t he Wisconsi n Su preme Court and an I l l inois appel late court h a v e found the statu tes re quiring the sex offender registration of nonse xual offenders constitutional, eight other sta tes have also held t h a t such statutes are con st itutional

. See Col lins v. T homas , No. 212

- cv
- 950

- WH A, 201 5 WL 5125 7 5 0 , at *7 (M.D. A la. A u g. 31, 2015) (Ala bama); Stat e v . Coleman , 385 P.3d 420, 426 (Ct. App. 2016) (Arizona); Rainer v . S tate , 690 S.E.2d 827 , 829 (2010) (Geo rg i a ) ; Moff itt v. Com monwealt h , 360 S.W.3d 247, 255

– 57 (Ky. Ct. App. 2 0 1 2) (K entuc ky); Peopl e v . Bo sca , 8 7 1 N.W.2d 307, 355

– 5 6 (2015) (Michigan); Thomas v. Miss

. Dep’t of Corr. , 248 So . 3 d 786, 790

– 91 (Miss. 2 018) (Mississippi); Peo pl e v. Cint ron , 827 N.Y.S.2 d 4 45, 460 (N.Y. Sup. Ct. 2006), aff’d sub nom. , P e ople v. Knox , 1 2 N.Y .3d 60, 65 (2009) (New Yo rk); Sta te v. Sakobie , 598 S.E.2d 6 15 , 619 (2004) (N orth Carolina). As fa r as states that have f ou nd such s tatutes un constitu tional, in addi tion to Florida and O hi o that the disse n t poi nt s out, only New Mex ico join s the minority of state c ourts to h ave fo und this type of statute unconstitutiona l. See ACLU of N .M

. v. City of Albuquerque , 137 P.3d 1215 , 1226 (N .M. Ct. App. 2006).9

abou t whether the trial court erred by entering the nunc pro tunc ju dgment

. Ou r decision to overrule this porti o n of Weatherly’s i ssue is fou nded on well

- established
law

— namely, a st a tu te which mandates that t he ju dgment must include sex

- offender

regist ration requireme nts and a child victim’ s age when a person has been co nvicted

o f a crime li s t ed in Chapter 6 2 , including so me crimes th at involve no sexual
component
. Dewalt

, 417 S.W.3d at 681

– 90; W illia ms , 2018 WL 3468458, at *4.
What we have held in this case is that this court has limit ed juri sdiction in the appeal of a judgmen t nunc pro t u n c. Blanton , 36 9 S.W.3d at 900 , 904 . I n s upport of
its argument that Weatherly has the rig ht to appeal the fourth nunc pro tunc judgment , the d issent cites to general cases about timely p erfecting an appeal from a jud gment nunc p ro tunc. See Williams v

. State , 603 S.W.3d 439, 44 6

– 4 7 (Tex. C ri m . App. 2020)

. 3 We have not sugg ested that Weatherly failed to timely pe rfect his appeal,
but rather w e have relied upon the well

- establis hed rule t hat our review in an appeal
fr om a nunc pro t unc judgme n t “ is limi t ed to the validity of the nunc pro tunc e ntry. ”
Moore , 446 S.W.2d at 879

.

3 We agree with the dis s e nt th at W illiam s sta nds for the pro position that o u r jurisdiction is invoke d by Weathe rly ’ s timely no ti ce of appeal from the trial court ’ s nunc pro tunc judgment

. But a timely n otice of ap peal does not change the nature or scope o f our review.10

2
. “ Authorit y ” to Address Weatherly ’ s Claim According to the dissent, we have “also cast[] doubt on this court’s ‘authority’

t o address the merits of Weath erly’s cl a im” and we h ave “narrow [ ed ] the sc o pe of this
court’s review. ” However, the dissent ac knowledges that in “an appeal from a nunc
pro tunc or der, a defendant cannot challenge his or her underlying conviction and

sentence .” Cunningham , 322 S.W. 2d at 540

. T h a t is not t he only limitation on o ur reviewing juris d iction. As mentioned above, our review of a judgme nt nunc pro tunc is limited to t h e validity of the entry

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

. This limited review is
furth er restricted , as the dissent notes, t o issues r e lated to cleric a l erro rs only. Id . The

c orrection of clerical errors by natu re can no t involve judicial reasoning. Poe , 751 S. W .2d at 876

. A nalyzing the con stituti onality of a sta tu t e i s the ep itom e of a judicially

- reasoned endeavor. Ex part e Madding , 70 S.W.3d 131, 1 35 n.8 (Tex. Crim. App. 2 002) (re cognizing that analyzing a due proce ss claim is not the correction of a
“mere clerical error in the judgment”)

. Despite writing several pages of a ju dicially

- reasoned analysis regarding the

const i tutionali t y of Chapter 6 2 as app lied to Weatherly, t he disse nt continues to assert th at such a task is merely the corr ecting of a clerical error. However, such a judicially

reasoned endeavor far exceed s the s cope of a nun c pro tunc review

. The trial co u rt in thi s instance appr o pr iately entered the findi n gs because the
law makes clear it had no ch oice to do otherwise. Dewalt , 417 S.W.3d at 68 1

– 90;
Williams , 2018 WL 3468458, at *4. Entering the findings in vo lved no judicial11

reasoning at all. I f the tri a l court i n this c ase had addresse d Weatherly’s argu m ent that Chapter 62 is unconstitutional as applied to him , it would have then been atte mpti ng to correct a “judicial” error, and the trial court would have e ngage d in “judicial reasoning” regard ing its n u nc pro tu n c entry. S ee M adding , 70 S.W.3d at 135 n

. 8 (“This case involves due process, not the issue of a mere clerical error in the judgm ent. ”).
This a trial court cannot do. See Fanniel v. State , 73 S. W.3 d 557, 560 (Tex. App.

— Houston [1st Di st.] 2002 , no pet.) (reasoning tha t a “ nunc pro tunc judgment made to correct a judicial error is void”). And because t he scope of ou r jurisdiction is limited

to the propriety of the trial court’s nunc pro tunc entr y , this court would be improperly steppi ng outsid e its own j u r isdiction by engaging in the same judic i al reasoning. See Barton v. G illespie , 178 S.W.3d 121, 126 (Tex. App.

— Houston [1st Dis t.] 2005, no pet.) (“A clerical error does not result fro m judicial reasoning, evidence or
determination. Conversel y , a judic i a l error arises from a mistake of law or f act that requires judicial rea soning to correct. A judicial error occurs in the renderi ng, rather than the entering of the judgment.”) (interna l citations omitted). Thus, we ca nnot agree with the diss e n t ’ s choic e t o engage in the judicial ly

- reas oned end e avor of analyzing whet her Chapter 62 ’s requirements are unconstitu tiona l as applied to Weatherly. To support its position that analyzing the constitution al it y of Chapter 62 as applied to Weathe rly is mer ely the c o rrection of a clerical error, the dissent relies on the Texas Court of Criminal Appeals ’ order dismiss ing Weath erly’s habeas corpus12

applicatio n without prejudice pending the outcome of this very appeal. Ex part e W eat herly , No. WR

- 61,215

- 09, 2020 WL 913 2 7 7 , at *1 (Tex. C rim. App. Feb . 26, 2020) (per curiam)

. S pecif

ically, the dissent states that the Court of Criminal A ppea ls no ted
in its order that the appeal before this court involves “appellate remedies with r e ga rd to the judgment nunc pro tunc ,” a nd th a t so me of Weat herly’s habeas claims involve “the validi t y of t he judgment nunc pro tunc .” Id

. These are correct st atem ents, and we
have addr essed in the majority opinion the validity of the fourth nunc pro tun c j udgment. Nowhere in the Court of Cr imi na l App eals’ orde r dismissing W eatherly’s habeas corpus ap p licati on , however , does the Court of Criminal Appeals suggest that
this court shou ld analyze the constituti on ality of a sta tute that required the tr ial court to make specific find ing s in its jud gment
. T he dissent also reli es on an unpublished case from o ur sister court of appeals
i n Am arill o for the proposition that attacking the constitutionality of a statu t e that requires mandatory findings to be i ncluded in the judgment can be rev ie wed in a n appe a l of a nunc pr o tunc jud gment
. Evans v. State , Nos. 07

- 17

- 00249

- CR, 07

- 17

- 00250

- CR, 07

- 17

- 00 251

- CR, 2018 WL 53055 00, at *1

– 3 (Tex. App.

— Amarillo Oct. 25, 2018, p e t. ref’d) (mem. op., not designated for p ublication)

. According to the dissent, the Ev ans c o urt analyzed t he constit utionality of the st atute requi r ing the
inclusion of dead ly

- weapon find ings that were first entered in a set o f judgments that13

the trial court called “ nunc pro tunc. ” 4 While we agree that the procedural posture
laid out in Ev an s i s ame nable t o d iffering v iew s , we conclude that the diss e nt ’ s relia nce

o n Evans is misplaced because the judgments were not in fact nunc pro tunc

. 5 Id

. Evans in act uality was an appeal from a judgment m odified during the trial

court ’ s plen ary power . A r evie w of the A marillo co urt of ap pe als ’ web site 6 and t h e “Case Events” log rega r ding Evan s ’s app eal s demon strates that the trial court imposed se n tenc e on June 28, 2017. Ev an s filed both his notice of appeal and hi s motion for new trial on J uly 10, 2017. The “ nunc pro tunc ju dg m ents ” were entered

o n Septemb e r 5, 2017. No where else in the Amarillo court’s “Case Events” log does

4 There w e re th re e j udgme nts i n Evans

. 2018 WL 5305500 , at * 1.

5 We d o note that the Evans court specifically s ta ted that Evans was ap peali ng
“ his convictions for a ggravated assault with a dead ly we a pon.” Id

.
6 While the dissent asse rt s that “ the majority ’ s disc u ssion of t hese o utside

- of the

- opi nion facts is imp r o per and not relevant, ” this court r ecently did jus t that in another case , wherein we reviewed the “ briefing of the parties contained in the or i gina l record in the s upreme court to guide us as to the basi s of it s r e ason in g ” because the opini o n being an alyz e d was “ textually silent as to suppo rtive interpret iv e authority

. ” In re State Farm Mutual Auto. Ins. , No. 02

- 20

- 00144

- CV, 2020 WL 6788961 , at *1 3 (Tex. App.

— Fort Worth Nov. 19, 2020, orig. procee ding )

. We also n o ted in that opinion tha t “ [a] c our t of ap p eals may similarly examine and take judicial notic e of the original record in proceedings before the supreme court and the court of cr iminal appeals through a search of their respec tive websites. ” Id. a t n. 9; s e e also G oodman v. State , No. 07

- 07

- 0502

- CR, 2008 WL 3157 10, at *1 ( Tex . App.

—

A m arillo Feb. 5, 20 08 , no pet. ) (mem. op., not designated for publication) ( taking judicial notice of a differe nt court of appeals ’ websi te to determine whether an appeal of a tri a l court cause nu mber referenced in appe llan t ’ s peti t ion wa s currently pending before that
c ou rt ); Brooks v. State , No. 07

- 07

- 05 05

- 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 a ppeal the trial court ’ s Sep te mber 5, 2017
entries. Ev an s ’ s motio n for new trial exten d ed t h e trial c ourt’s plen ary power, an d
thus even thou g h the trial co u rt titled the judgments “nunc pro tunc,” what actually
occurred i n E vans was that the trial court modi fied its judgments within its ple na ry power ; the use of t he te rm “nunc pro tun c” in the j udgment s w as simply a misnome r . See Williams , 60 3 S.W.3d at 443 (“[B]ecause the trial court’s two post

- October 6 o rders

were not nunc pro tunc orders (despite being labeled as such) bu t were appropriate
exercises of i ts plenary power over its j udgme n t, t h e cases r elied on by the State . . . are inapposi t e to th e case at hand.”)

. 7 Because Evans is an appe al made during the trial

court ’ s plenary powe r, it does not support the dissent ’ s position

. 3. Habeas Corpus as a n Avenue of A ddr ess ing Weath erly ’ s Com p laint
T he disse nt argues that there is a “ logis t i cal” problem with our review being
limited in such a wa y that we cannot address Weatherly’s con stitutional cla im

. To that, the dissent asks th e question , “ W hen was Weatherly sup pose d to challen ge th e tri a l court’s denial of his motion to declar e the SOR P [ 8 ] facially unconstitutional or to

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

7 Ir o n ically, th e judgments in Evans still co ntain cler ic al error s by stati ng that the dat e of the written judgment s w ere entered on June 1, 2017, which is impossible given that s entencing wa s imposed on June 28, 2017. The correction of the da te of jud gmen t s e n tered w oul d be correctio n s to clerical error s and w oul d be a proper e ntry for a nunc pro tun c order

.

8 The diss ent uses the term SORP to stand for sex

- offender regist rat ion program .15

for redress concerning h is constitutional complaint is by w ay o f a postconv ictio n wri t of habea s corpus. See Tex . Code Crim. P ro c . Ann

. art. 11.07.
Numerous cases have allowed defendant s to address complaints regarding their guilty pleas through postconviction writs of habeas corpus. See Ex parte Ag uilar , 537 S.W.3d 122 , 124 (

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

. 2012); E x parte Har rington , 310 S.W .3d 452, 455 ( T ex. Crim. App. 2010). W hile we do not decide here whether Weatherly ’ s complaint has merit, we merely note that there are oth er po ssible avenue s to attack his plea aside from

e xpanding our review of nunc pro tunc ju dgmen ts
. In Moussa zadeh , a f

ter the a pplicant pleaded gui l t y t o murder, and after his
murder convict ion was affirmed o n di rect appeal, the applicant sought a
postco nvic ti on writ of habeas corpus contending that his mistaken understanding of parole eligibi lity bas e d on misinf ormation from his trial counsel render e d h i s guilty plea involuntary. 361 S.W.3d at 686. The Mous saza deh court reasoned that because
the “terms of th e relevant parole

- eligibility statute are su ccinct and clear with r espect to the cons equen ces of a guilty plea” t h en “[t]he performance of appl i c an t ’s counse l was deficient” for not prop erly informing Mou ssaz adeh. Id . at 691. The Moussazadeh

court held t hat the applicant “sufficiently proved that his counsel was constit utionally
deficien t” an d v a cated Mouss azadeh’s plea. Id

. at 692. Similarly, in Harr

i n gt o n , the ap plicant sought postconviction habeas relief

con tend ing that his guilty plea was involunta ry b ecause of his trial counsel’s failure to16

investiga te a prior DWI convicti on used by the Sta te to en h anc e applicant’s
mis demea nor DW I charge to a felo n y . 31 0 S.W.3d at 454. Based o n his trial
counsel’s erro neous advice, applicant pleaded guilty to fe l on y DWI. Id . Because the applicant had be en wrongly convicted of a felony c onviction, and eve n though he had
al rea dy bee n discharged from incarcerat i on , he lo st his job with the Texas Workforce
Commission. Id

. at 459. The Harrington court reasoned t ha t a pplicant’s loss of his job
was a collater al consequence to his plea and tha t habeas corpus wa s theref o re the
pr ope r vehi cl e to bring his complaint. Id

. The court held that applicant had met his
burden of sho wing a reasonable probability that, but fo r c ou nsel’s erroneous advice,
he would not hav e entered a guilty plea. Id . at 4 59

– 60.
And st rik ingly si m ila r to W eat herly’ s situation, i n Agui lar , a Ho ndu ran national with tempora r y p r o tect ed status pleaded guilty to the state

- jail felo ny o f attempting to

ev ade arrest in a motor ve hi cle. 537 S.W.3d at 124. Prior to his plea, Aguilar’s plea
counsel was advised by an immigrat ion attorne y th at a fel ony co nvi ction that carried
with i t a s i x
- mo nth jail sentence would r ender Aguilar removabl e fr om the country.
I d . at 128. After plea c ou nsel acknowledged to both Aguilar and the im migration attorney that he understo od the law and cou ld negot i ate a pl ea that a llo wed Agu i lar to
retain his t em p o rary protected status and rem ain eligible for legal resi dence, plea

cou ns el negotiated a n agre ement wher e by Aguilar pleaded guilty and re ceived a six

month jail sentence. As a r esult, Aguilar los t his le g al nonimmig rant stat us and was ineligible to reap p l y f

o r protect ed status. Id

. at 126. The Texas Court of Cri mina l17

Appea ls reasoned that plea counsel had n egotiated a plea he believed co nformed with the immigration attorney’s a dvice, but it d id not. Id

. T he court held tha t counsel’s “[d]e ficiency is e a sy to find i n this cas e” and that Agu i lar had shown that he woul d
not h av e pleaded guilty i f he had been c orrectly advised of the relev ant immigration
consequences. Id

. at 128. The cou rt vaca ted Aguilar ’s p lea. Id

. at 129 ; see also Ex pa rte Trejo , 602 S.W.3d 918, 91 8

– 19 ( Tex. Cri m. App. 2 020) (granting application for
post co nviction writ of habeas corpus on the ground tha t his counsel did not properl y inform him of the immigration consequence s of his guilty pl ea).
L ike the a pplicants i n Moussazadeh , Harrington , Ag u i lar , and other cases 9 who all entered guilty pleas based on misinformation or the failure to be prop erly a dmonished
from their trial at torneys abou t th e consequences of their ple a s, there are other avenues of relief for applic ants dissatisfied with their pleas. If an applicant prevails, pleas can be vacated. I f an applicant then faces the same charges and the same

9 In an unpublished opinion, the Texas Court of Crimin al App eals grant e d habeas re lief and v a cat ed a defendant’s judgment p redicate d on hi s plea of n olo contendere where trial counsel aff irmati vely misadvised the defendant about the sex

off en der

- registra tion consequences of pleading to attempted sexu al ass ault. Ex par te Cov e y , No. P D

- 0 145

- 09, 20 1 0 W L 1253224, at *8 (Tex. Cr im . App. M a r. 31, 2010 ). Co vey serves as a nother example regar din g We atherly’s ability to attack the judgment and the complained

- of findings outside of an appeal from a nunc pro t unc judgment. Id

. ; see a l s o Ex pa rte Hernandez

, No. WR

- 83,596

- 01, 2015 WL 50768 88 , at *1 ( Tex. C rim. Ap p. Aug. 26, 201 5) ( concluding that applicant who claimed i neffective assistance of counsel because trial counsel failed to inform him that he would have the duty to register as a sex offende r a s a result of his aggravated kidnapping c onvictio n had “ alleged facts that , if true , might entit le him to relief

” and remanding habeas corpus application to tria l court to make findings).18

statutory issues, they can raise the iss ues through the normal course of pretrial, trial, and appel l a te c hallenges.
Cit ing Meyer v. State , 310 S.W.3d 24, 26 (Tex. App.

— Texarkana 2010, n o pe t.) , the di ssent claims that we have cho sen W eatherly ’s issues for him and advis ed him
h o w and where to arg ue , thu s strayin g outsi de th e boundaries of this court’s d u ties

. But Me yer inv olved a reviewing court ’ s decli ning to make arguments for an appellant
who had r e fused , despite repeated requests a nd allowances by the cou rt, to correct his
i nadequate and i mpr oper br i efing. Id

. It does not stand for the propositio n that a review ing cou rt cannot suggest that there are other avenues of redress, especially in
respon se to a dissent ’ s suggestion that th ere are no other ave nues of redress. Id

. N otably , “ [t] he cou rt of c r iminal a ppeals has r epeatedly explained that th e w r it of
habeas co rpus is the appropriate vehicle to raise ineffective assistance of counsel

c laims be ca use m any such claims involve omiss ions, rather than commission s readily

ascer t ainable on the fac e of th e trial r ecord, and t he writ of habeas corpus af fo r d s the applicant the opportunity to develop, through testimony, a thorough and detailed

rec o rd of th e alleg ed ineffectiveness.” Ex part e Okere , 56 S.W.3d 846, 856 (Tex. App.

— Fort Worth 2001, pet . r ef ’ d); s ee also Ex parte Tow nsend , 137 S.W.3d 79, 83 (T ex . Crim. App. 2004

) (“A dditionally, I find it ironic that the majority would rule this way
wh e n this C ou rt co nsistently dismisses ineffect ive assistance of counsel claims on
direct a ppeal by statin g t hat suc h issues are better a ddressed by a writ of habea s

c o rpus. ” ) (Meyers , J., dissenting ) ; Pieringer v. State , 139 S.W.3d 713, 720 (Tex. App.

—19

Fort Worth 200 4, no p et.) (“In this instance, an a pplication for writ of habeas corpus
is the more appropriat e v ehicle f or Appel lant’s claim

. ” )

. 10
The dissent also see m s to im ply that , thro ugh a n applicatio n for habeas corpus , Weatherly would not be attacking the facts o f or duration of his conviction and thus seeking habeas corpus relief woul d be improper. See , e.g. , In re Da niel

, 396 S. W.3d 545,
548 (Tex. Crim. App

. 2013) ; Ex parte Riec k , 144 S.W.3d 510, 519 (Tex. Crim. App. 2004). In doing so , the disse nt cit es to Da ni e l which makes syno nymous th e terms

“ conviction ” and “ restrain t. ” 1 44 S .W.3 d at 519. Howe v er, t h e term “r estraint” ha s been broadly construed. Se e Ex par te Cathcart , 1 3 S.W.3d 414, 417 (Tex. Crim. App. 2000) (“As has been noted in other cases, the t er m ‘ restraint ’ has been constru e d
broadl y in the context of habeas corpus w rit applications.”) ; s ee a l so Ex pa rte Bain , 56 8 S.W.2d 356, 358 (Tex. Cr im

. A pp. 1978 ) ( holding t hat a court order compelling
attorneys to represent a defendant withou t compensati on co ns titutes a “restraint”);
Ba s aldua v. State , 558 S.W.2d 2, 5 (Tex. Cr im

. Ap p. 1977) (

holdi ng that t

h e impo sition
of unco nstitutional conditions of pr o b ation co nstitutes a “restraint”)

. Accordingly, an application for writ of habeas corp us remains an av enue o f relief for Weatherly

.

10 The dissent takes varying posi tions about whether W eatherly ha s o ther avenues o f redress to bring his co ns titution a lity c laim

. A t one point , t he dissent states t h at it is “not c ontending tha t Weatherly’s timely appeal is his only remedy; in f act, it may n ot be.”20

4. Judge Year

y ’ s Concerns Regarding the Third N unc Pro Tunc Ju dg m ent T h e dissent also argue s that we have made the conce r n from Judge Ye ary’s dissenting opinion in the Court of Criminal Ap peals’ order to va cate the Chapte r 62
fin ding s in the third nun c pro tunc order a reality. We at he rly , 20 19 WL 431 845 9 at *1 (Yea r y , J., d is sen tin g). In that opinion, Judge Year y exp ress e d concer n that if the

c ourt vacated the third nunc pro tunc judgment, Wea therly could potentially for f e it
his right to challenge t he nunc pro tunc judgment on appeal. Id

. Howeve r , J udge Yeary’s c on cern d i d not become a reali ty since Weatherly is before t h is cour t on a direct appe al from the fourth nunc pro tunc judgment after the third n unc pro tunc jud g m ent wa s vacated. In additi on , we have addressed, within our limite d scop e o f

r eview, Wea therl y’ s cont e nt ion that the trial court erred by entering the C h apter 6 2
findi ngs. Our follow ing of the law regarding the limited review we have o f judgments

nunc p r o tunc in no way has caused Weatherly to forfeit his appeal. Bl anton , 369 S .W. 3d at 904

. 5. Valid i ty Claims Next, the dissent argues that a “ validi t y ” claim is cog nizable in an appeal from a judgme nt nunc pro tun c. But t he majority of the cases cite d by th e dissent for this
pr oposition are direct appeals or writs for mandamu s wh ich in volve d ju d i cial

r ea soning. See In re Lester

, 602 S.W.3d 469, 475 (

T ex. 202 0) (ori g. proceeding) ; Karenev
v. State , 281 SW.3d 428, 43 8 n .9 (Tex. Crim. A pp. 20 0 9) (Cochra n , J., concurring ) ; Kelly21

v. State , 724 S.W.2d 42, 44 n.2 (Tex . Crim. App. 19 87). The only othe r autho r it y the
dissent cite s is the Court of Criminal Ap p e als ’ order dis missing with out prejudice Weatherly ’ s latest habeas c orpus applicat ion

. We atherly , 20 2 0 WL 913277 , at *1

. Acc or ding to the dissent, a postconvic tion habeas corpu s “ co uld be closed t o ”
Wea t h erly. But the c our t pointed out in it s dismissa l order that “ the v alidity of t he judg ment nunc pro tunc does affect some (but not all) o f the claims [W e a therly] raised in his appl i c ation for writ of habeas corpus. ” Id

. Noth ing in t he c ourt ’ s ord e r sug g ests that Weatherly is foreclosed from pursuing a p ostconviction habeas corp us application to address an y of h i s other claim s. The di ssen t takes th i s s a m e approach to the trial court ’ s denial of Weatherl y ’ s motion to declare Chapte r 62 unconstitu t i o nal a s applied to him. A ccording to th e dissent, “ B y c o nsidering and denying Weatherly ’ s motion to de cla re the S ORP
unconstitutional as applied , the tr i al co u r t seemingly agreed that it had the a uthority to
deter mine the constitu tional ity of the State ’ s r eque s t to enter a nunc pr o tunc order

. ”
The trial c ou r t made no such d etermination. Rather, the trial cou rt understood its
role in en tering judgments n unc p r o tunc and de nied Weatherly ’ s motion because it
would have inv o lved jud icial re a soning to deter m i ne t h e constitutionality of Chapter
6 2 as applied to h i m . See Fanniel , 73 S.W.3d at 560 ( “ A nunc pro tunc judgment made to correct a judicial error is void

. ” )

. In sum, w e do not have the jurisdict ion t o re view a trial court ’s nunc p r o tunc order by e n g agin g in j udicial reasoni ng , which is wha t the disse nt s ug gest s that we do ,22

and which the dissent has done

. See Madding , 70 S.W.3d at 135 n.8

. Thus, w e resp e c tfully d isagree with the dissent

. I V. C ONCL USION Havi ng overr u led Weatherly ’ s sole issue on a p p ea l, we a ffirm the trial court ’ s judgme nt
.
/s/ Dana Womack
Dan a Womac k Justi ce Do Not Publish Tex. R. App. P. 47.2 (b)
Del i vered : January 7 , 202 1