Opinion issued May 19, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00832-CR

———————————

JOSEPH DARYL MATHIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1173963

MEMORANDUM OPINION

Appellant Joseph Daryl Mathis appeals a trial court judgment adjudicating 

him guilty of aggravated assault of a public servant. In a sole point of error, 

Mathis contends that the judgment erroneously states that he pleaded “True” to 

allegations in the State’s motion to adjudicate his guilt and asks that we reform the 
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judgment to reflect that he pleaded “Not True.” We modify the judgment to strike 

the finding that appellant waived his right to appeal and we affirm as modified.

Background

Mathis was charged by indictment with aggravated assault of a public 

servant. Pursuant to a plea agreement with the State, Mathis pleaded guilty to the 

charged offense and the trial court placed Mathis on a five year term of deferredadjudication community supervision. During Mathis’s term of supervision, the 

State filed a motion to adjudicate his guilt, alleging that Mathis had violated 

several conditions of his probation. After holding a hearing on the motion, the trial 

court found several—but not all—allegations true and assessed his punishment at 

seven years’ confinement. 

Discussion

In his sole point of error, Mathis contends that the trial court’s judgment of 

conviction erroneously states that he pleaded “True” to the allegations in the 

motion to adjudicate rather than “Not True” and asks that we reform the judgment 

accordingly. Though the State does not join Mathis in his request, the State does 

not oppose reformation.

“An appellate court has the power to correct and reform a trial court 

judgment ‘to make the record speak the truth when it has the necessary data and 

information to do so, or make any appropriate order as the law and nature of the 
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case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st 

Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet ref’d)); see also TEX. R. APP. P. 43.2(b) (“The court of appeals 

may . . . modify the trial court’s judgment and affirm it as modified”); Bernard v.

State, 401 S.W.3d 145, 150 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) 

(reforming judgment to state that appellant pleaded “guilty” to the charged offense 

where record reflected that appellant pleaded “guilty,” but trial court’s judgment 

erroneously reflected that appellant pleaded “not guilty”); Houston v. State, No. 

01-98-01311-CR, 2000 WL 964646, at *1 (Tex. App.—Houston [1st Dist.] July 

13, 2000, no pet.) (not designated for publication) (based on record reflecting that 

appellant pleaded “no contest,” judgment erroneously stating that appellant 

pleaded “Guilty” reformed to state that appellant pleaded “no contest”).

The authority of the courts of appeals to reform judgments is not limited to 

mistakes of a clerical nature. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 

1993). “Appellate courts have the power to reform whatever the trial court could 

have corrected by a judgment nunc pro tunc where the evidence necessary to 

correct the judgment appears in the record.” Asberry, 813 S.W.2d at 529. An 

appellant bears the burden to bring forth a record showing error requiring 

modification, and we must assume that any omissions therefrom support the 

judgment as entered. Johnson v. State, 409 S.W.3d 738, 742–43 (Tex. App.—
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Houston [1st Dist.] 2013, no pet.) (first citing Diaz–Galvan v. State, 942 S.W.2d 

185, 186 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); then citing Applewhite 

v. State, 872 S.W.2d 32, 33 (Tex. App.—Houston [1st Dist.] 1994, no pet.)).

Here, the record does not provide the information necessary to modify the 

trial court judgment as requested. The reporter’s record does not include Mathis’s 

plea to the motion to adjudicate. Apart from the trial court’s docket sheet, Mathis 

does not point us to any portion of the record to support his contention that the 

judgment erroneously reports that he pleaded “True.” The docket sheet contradicts 

the judgment insofar as it reflects that Mathis pleaded “Not True” to the allegations 

in the State’s motion to adjudicate, but a contradictory docket entry is not an 

adequate basis from which to reform a trial court’s judgment. See Rodriguez v. 

State, 834 S.W.2d 592, 595 (Tex. App.—Houston [1st Dist.] 1992), remanded in 

part on other grounds, 844 S.W.2d 744 (Tex. Crim. App. 1992); N-S-W Corp. v. 

Snell, 561 S.W.2d 798, 799 (Tex. 1977) (citations omitted) (“A docket entry may 

supply facts in certain situations, but it cannot be used to contradict or prevail over 

a final judicial order.”). “The record, not the docket entry, is the authoritative 

evidence upon which the parties must rely on appeal.” Bell v. State, 734 S.W.2d 

83, 84 (Tex. App.—Austin 1987, no pet.); see also Flores v. State, 888 S.W.2d 

193, 195 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (explaining that “the 

docket sheet is merely a record kept by the clerk showing the order and nature of 
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the proceedings for each criminal action” (citing TEX. CODE CRIM. PROC. ANN. art.

33.07 (Vernon 1965))). Because the record does not provide information 

necessary to reform the judgment, we cannot do so. Cf. Nolan, 39 S.W.3d at 698–

99 (examining clerk’s and reporter’s records to identify errors in judgment and 

reforming judgment accordingly). 

Accordingly, we overrule Mathis’s sole issue.

Nunc Pro Tunc

Though the trial court filed a signed certification reflecting that Mathis did 

have a right of appeal, the trial court’s judgment included a contrary special 

finding stating “APPEAL WAIVED. NO PERMISSION TO APPEAL 

GRANTED.” Upon noting this discrepancy, we remanded to the trial court for 

clarification in order to be assured of our jurisdiction. See TEX. R. APP. P. 44.4. 

During an abatement hearing to address the discrepancy, the trial court explained 

that the special finding in its judgment denying Mathis a right to appeal was a 

clerical error and that Mathis indeed has the right to appeal. 

In an attempt to correct this clerical error, the trial court entered judgment 

nunc pro tunc. However, the judgment nunc pro tunc further modified the original 

judgment to change the “Findings on Deadly Weapon” entry from “N/A” to “Yes, 

Not a Firearm” and adding a special deadly weapon finding. In doing so, the trial 

court improperly exceeded the scope of the abatement order. See Lewis v. State, 
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711 S.W.2d 41, 43–44 (Tex. Crim. App. 1986); Kay v. State, No. 01–13–00595–

CR, 2014 WL 3697917, at *5 (Tex. App.—Houston [1st Dist.] July 24, 2014, no 

pet.) (mem. op., not designated for publication). More importantly, the trial court 

deprived Mathis of due process when it added an affirmative deadly weapon 

finding without notice and a hearing. See Guthrie-Nail v. State, -- S.W.3d --, 2015 

WL 5449642, at *1 (Tex. Crim. App. Sept. 16, 2015) (providing that it is “beyond 

dispute” that an appellant is entitled to notice and hearing prior to issuance of an 

unfavorable nunc pro tunc judgment that newly adds an affirmative deadly weapon 

finding); Shaw v. State, 539 S.W.2d 887, 890 (Tex. Crim. App. 1976) (“Before any 

unfavorable nunc pro tunc orders are entered the person convicted should be given 

an opportunity to be present for the hearing, represented by counsel, in order to 

accord him due process of law.”). At the abatement hearing, discussion was 

focused exclusively on the issue raised by our abatement order: the misstatement 

of Mathis’s right to appeal in the original judgment. Yet, apparently without notice 

to the parties, the trial court’s judgment nunc pro tunc added an affirmative deadly 

weapon finding that negatively effects Mathis. See TEX. GOV’T CODE

§ 508.145(d)(1) (“An inmate serving a sentence for . . . an offense for which the 

judgment contains an affirmative finding under [TEX. CODE CRIM. PROC. art.

42.12] Section 3g(a)(2) . . . is not eligible for release on parole until the inmate’s 

actual calendar time served, without consideration of good conduct time, equals 
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one-half of the sentence or 30 calendar years, whichever is less, but in no event is 

the inmate eligible for release on parole in less than two calendar years.”). In so 

doing, the trial court deprived Mathis of due process. See Guthrie-Nail, 2015 WL 

5449642, at *1. Because the trial court’s entry of judgment nunc pro tunc 

improperly exceeded the scope of our abatement order and violated Mathis’s due 

process rights, we vacate the judgment nunc pro tunc. 

Based on the record from that abatement hearing, however, it is clear that the 

special finding in the original judgment regarding Mathis’s right to appeal was a 

clerical error. Accordingly, to make the original judgment speak the truth, we 

strike the erroneous special finding regarding Mathis’s right to appeal and affirm 

the original judgment in all other respects. See French v. State, 830 S.W.2d 607, 

609 (Tex. Crim. App. 1992) (“[A]n appellate court has authority to reform a 

judgment . . . to make the record speak the truth . . . .”); Alcaraz v. State, 481 

S.W.3d 712, 713 (Tex. App.—Houston [1st Dist.] Dec. 3, 2015, pet. filed) 

(modifying judgment to delete erroneous special finding that appellant waived 

appeal).
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Conclusion

We vacate the November 16, 2015 Entry of Judgment Nunc Pro Tunc. We 

modify the special findings portion of the September 12, 2014 judgment to strike 

“APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.” We affirm 

the trial court’s September 12, 2014 judgment as modified.

Rebeca Huddle

Justice

Panel consists of Justice Higley, Justice Huddle, and Justice Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).