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Fanniel v. State

A judgment nunc pro tunc is improper when it has the effect of making a new order.

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OPINION

Frank Edward Fanniel, Jr., appellant, was charged with the offense of possession of a controlled substance, namely cocaine, in an amount less than 28 grams, enhanced with the use or exhibition of a deadly weapon, namely, a firearm. Appellant pleaded guilty to the underlying offense and pleaded true to the deadly weapon paragraph in the indictment. The trial judge deferred entering an adjudication of guilt and placed him on community supervision for a period of seven years. Within the seven year period, the State filed its motion to adjudicate guilt, alleging appellant committed aggravated robbery and violated the terms of his community supervision by using cocaine and failing to pay certain supervisory fees. The trial court entered a judgment of guilty, sentenced him to 20 years confinement, and fined him $750. The trial court ordered that the sentence for cocaine possession was to begin after appellant completed his 22 year sentence for aggravated robbery.

When the trial court adjudicated guilt on the possession offense, it did not make an affirmative finding that appellant used or exhibited a deadly weapon. More than 30 days after the adjudication of guilt, the State filed a motion for judgment nunc pro tunc to include a finding that appellant used a deadly weapon in conjunction with his possession offense, and the trial court granted the motion. Appellant argues the trial court erred by entering a judgment nunc pro tunc because the failure to include the deadly weapon finding was not a clerical error. We reverse and render.

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