NO. 74,035





The opinion of the Court was delivered per curiam. Keasler, J., concurred in the disposition. Holcomb, J., delivered a dissenting opinion, joined by Price, J.


In his application for a writ of habeas corpus, Mr. Pena requests relief from his conviction for deadly conduct because the jury did not impose a fine as a part of his punishment, but the written judgment includes a $10,000 fine as well as the jury-assessed ten year probated prison sentence. Applicant argues that he is entitled to habeas corpus relief because the fine was "unauthorized by law" and thus his sentence is void. (1) We disagree. Applicant's judgment could have been inaccurate in that it was inconsistent with the jury's verdict, but it is neither "void" nor "illegal." (2) And a claim that a judgment is inaccurate, which is neither a claim of jurisdictional defect (3) nor of a violation of constitutional or fundamental rights, (4) is not a basis for habeas relief under article 11.07 of the Texas Code of Criminal Procedure. (5)

In any event, even assuming Pena had raised a cognizable complaint, he is not entitled to relief here--where the record reflects he waived error by not complaining at the time the $10,000 fine was imposed or on direct appeal.

It is undisputed that the jury found Pena guilty and recommended that the judge place Pena on community supervision. The judge followed that recommendation, placing Pena on community supervision for ten years and imposing a number of conditions. Defense counsel's affidavit reflects that the prosecutor requested that Pena serve 180 days in jail as a condition of probation. The judge denied that request but imposed a $10,000 fine. The State asserts that this was a quid pro quo - the judge imposed the fine instead of the jail time. Defense counsel swears by affidavit that, after the hearing, he told Pena that he "questioned the legality of the fine" and explained to Pena that "he had the option to appeal, or to file a motion to reconsider the sentence." But Pena elected not to pursue these options. Indeed, Pena initially did appeal, but later moved to dismiss the appeal, and the appellate court dismissed the appeal on his motion. (6)

At Pena's later revocation hearing, the judge stated that the jury had found Pena guilty and his "punishment was set at ten years imprisonment and a fine of $10,000." Pena's counsel interrupted the judge and clarified that "[t]he jury found no fine," but rather, "[w]hen the Court imposed its sentence, the fine was imposed." Defense counsel then stated, "We're not contesting it." Pena's decision not to contest the fine makes sense, if it were imposed in lieu of jail time. Pena apparently liked this result; he decided not to appeal it even though he clearly could have and was aware that he could have done so.

In response to Pena's writ application, the trial court found that Pena "was made aware that he could object to the imposition of the fine . . . but he chose not to do so." We agree. Based on this record, we conclude that Pena affirmatively waived any complaint about the imposition of the fine.

Therefore, we dismiss Mr. Pena's application. Even if Mr. Pena had alleged a constitutional or jurisdictional defect, he would not be entitled to habeas corpus relief because he could have, and should have, complained about the fine at the time it was imposed or on direct appeal. (7)

Per Curiam

Delivered : March 13, 2002



1. Applicant's ground to habeas relief is stated:

The trial court committed fundamental error when it ordered the appellant to pay a $10,000.00 fine as a condition of his community service after a jury had refused to impose a fine; and thereafter, the court committed error by revoking community supervision based on that void sentence.

2. A "void" or "illegal" sentence is one that is not authorized by law. See Ex parte Johnson, 697 S.W.2d 605, 606-07 (Tex. Crim. App. 1985). For example, had the jury assessed Mr. Pena a $20,000 fine, that sentence would be void and illegal because Texas statutes only permit a maximum of a $10,000 fine. Id. Here, a $10,000 fine is legal and is authorized by statute, but the jury did not assess any such fine.

3. I.e., the trial court never had personal or subject matter jurisdiction over the defendant.

4. See, e.g, Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994) (habeas corpus is reserved for those instances in which there is a jurisdictional defect in the trial court which renders the judgment void or for denials of fundamental or constitutional rights); Ex parte Watson, 601 S.W.2d 350 (Tex. Crim. App. 1980) (post-conviction writ of habeas corpus is limited, and "lies only to review jurisdictional defects or denials of fundamental or constitutional rights"); Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).

5. This Court long ago held that a writ of habeas corpus does not lie to correct an inaccurate criminal judgment, and that the proper mode of correction is a nunc pro tunc motion and order. Ex parte Patterson, 139 Tex. Crim. 489, 496, 141 S.W.2d 319, 323 (1940) (a mere irregularity in a judgment may be corrected by nunc pro tunc proceeding, but "the matter was not a subject for the granting of the writ of habeas corpus") (citing Ex parte Beeler, 41 Tex. Crim. 240, 241, 53 S.W. 857, 857 (1899)); see also Ex parte Hannen, 155 Tex. Crim. 10, 13, 228 S.W.2d 864, 866-67 (1950) (judgment may be held "void for want of a definite punishment having been in fact assessed," but if "a definite punishment was assessed and the entry of a judgment showing otherwise was by a clerical error, the judgment may be corrected by the court ... to make the record speak the truth, by nunc pro tunc entry of the judgment as same was actually rendered in the case when tried"); Ex parte Stansbury, 155 Tex. Crim. 73, 74, 231 S.W.2d 431, 432 (1950) (same); Ex parte Wingfield, 162 Tex. Crim. 112, 113, 282 S.W.2d 219, 219 (1955) ("[i]f the error was in the entry of judgment and not in the pronouncement, the judgment was not void and was subject to correction by nunc pro tunc proceedings"). However, a nunc pro tunc motion and order might not lie to correct the judgment here, assuming it were inaccurate, because the purpose of a nunc pro tunc order is to correct clerical errors in the judgment records of the trial court. A clerical error is one that does not result from any judicial reasoning or determination. Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980). And any error here apparently resulted from a judicial determination. Rather than being mistaken or inadvertent, it appears undisputed that the trial court intentionally imposed the $10,000 fine.

6. Pena v. State, No. 13-99-099-CR (Tex. App. - Corpus Christi, opinion delivered October 21, 1999) (not designated for publication).

7. See Ex parte Bagley, 509 S.W.2d 332, 334 (Tex. Crim. App. 1974) (holding that "the contemporaneous objection rule serves a legitimate State interest in this question, and that the failure of petitioner, as defendant, to object at the trial, and to pursue vindication of a constitutional right of which he was put on notice on appeal, constitutes a waiver of the position he now asserts" on a writ of habeas corpus); see also Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App. 2001) (citing Bagley and noting that "[o]rdinarily, the writ of habeas corpus may not be used to litigate matters that could have been raised at trial and on direct appeal").