Tucker, Michael

03/12/2025

PD-1059-24

  1. “The court of appeals too narrowly construed its authority under Rule 43.2(b) of the Texas Rules of Appellate Procedure to modify judgments where there has been an omission in the judgment.”
  2. “The court of appeals erred to limit the “statute of offense” field in a judgment to only elements of the underlying criminal offense where entry of ‘Sec. 22.021(f)’ was necessary for the lawful execution of a judgment under Art. 42.01 and calculation of an inmate’s parole eligibility per Govt. Code Sec. 508.145(a).”
  3. “The court of appeals erred to conclude that the recital that ‘the victim or intended victim was younger than 6 years of age at the time of the offense’ was a sufficient affirmative finding for purposes of Govt. Code Sec. 508.145(a).”

Tucker was convicted of aggravated sexual assault of a child. The victim was under 6, which under Tex. Penal Code § 22.021(f)(1) raised the minimum punishment to 25 years. Tex. Gov’t Code § 508.145(a)(3) makes a person serving a sentence for “Section 22.021” ineligible for parole “if the offense is punishable under Subsection (f) of that section.”

The trial court’s judgment included a field labeled “Statute for Offense.” In it, the judge included the statutory subsection identifying Tucker’s conduct, “Tex. Penal Code § 22.021(a)(2)(B),” but not “(f)(1).” On page 3, the judgment recites that the victim was under 6.

When Tucker appealed, the State asked that the “Statute for Offense” field also list “(f)(1).” The court of appeals rejected the State’s request, holding in an en banc opinion that it could not modify the judgment because (1) what was on the judgment was not an error, and (2) the “Statute for Offense” field was reserved only for elements of the offense.

The State contends that courts of appeals have authority to make the record speak the truth, which includes both errors and omissions. It relies on caselaw interpreting a prior iteration of the Rules of Appellate Procedure giving courts of appeals the power to both correct and reform judgments. It argues “(f)(1)” belongs on the judgment regardless of whether it is an element of the offense. Tex. Code Crim. Proc. art. 42.01, § 1 provides that “[t]he sentence served shall be based on the information contained in the judgment,” and this includes the “(f)(1)” designation because it conveys to penitentiary authorities how long to detain the defendant. It highlights that Gov’t Code § 508.145 makes parole ineligibility turn on the fact that “the offense is punishable under Subsection (f)”—not a recital in the judgment that the victim is under 6.