TUCKER, MICHAEL v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-1059-24

MICHAEL TUCKER, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY

SCHENCK, P.J., delivered the opinion of the Court in which
RICHARDSON, NEWELL, KEEL, and MCCLURE, JJ., joined. NEWELL, J., filed a
concurring opinion. FINLEY and PARKER, JJ., concurred. YEARY, J., filed a
dissenting opinion. Walker, J., dissented.

OPINION
TUCKER–2

Appellant, Michael Tucker, was convicted under a predecessor statute of

super-aggravated sexual assault of a child, among other offenses. The minimum

term of confinement was twenty-five years, and Appellant was ineligible for parole

because the victim was under six years old at the time of the offense. 1

Appellant challenged the sufficiency of the evidence of one of his other

convictions. Tucker v. State, 706 S.W.3d 379, 387 (Tex. App.—Austin 2024) (op.

on reh’g) (en banc). While the case was pending at the court of appeals, the State

requested a judgment nunc pro tunc to reflect Appellant’s victim was under six

years old at the time of the offense by adding (f)(1) as a subsection in the “Statute

for Offense” box. 2 Id. at 390. The court of appeals held there was no error in the

judgment to modify because Section 22.021(f)(1) is not an element of the offense

but a punishment issue. 3 Id.

1
See TEX. PENAL CODE § 22.021(a)(2)(B), (f)(1) (2017); TEX. GOV’T CODE
§ 508.145(a)(4) (2017). In 2025, the legislature amended Section 22.021(f)(1) and changed the
age from under six years old to under ten years old. Act of May 27, 2025, 89th Leg., R.S., ch. 557,
§ 21, sec. 22.021(f)(1), 2025 TEX. SESS. LAW SERV. 1313, 1323 (codified at TEX. PENAL CODE
§ 22.021(f)(1)).
2
The trial court did not have jurisdiction to enter a nunc pro tunc judgment because the
case was on appeal. See TEX. R. APP. P. 25.2(g) (“Once the record has been filed in the appellate
court, all further proceedings in the trial court – except as provided otherwise by law or by these
rules – will be suspended until the trial court receives the appellate-court mandate.”).
3
The judgment includes a reference to the victim being under six years old at the time of
the offense, but it is in the sex-offender registration part of the judgment.
TUCKER–3

The State filed a petition for discretionary review challenging the denial of

its request for a judgment nunc pro tunc, which we granted. After the court of

appeals decided this case and after we granted review, this Court held the under-

six-years-old provision is an element of the offense. See Gutierrez v. State, 710

S.W.3d 804, 809 (Tex. Crim. App. 2025). The parties now agree the State is

entitled to relief. Given Appellant’s concession, we need not decide whether

subsection (f)(1) must be included in the judgment’s “Statute for Offense” box.

We reverse the court of appeals’s judgment, remand the cause to the trial

court, and order the trial court to modify the judgment of conviction for Count I in

appellate cause number 03-22-00697-CR (trial court cause number D-1-DC-21-

904045) to show “PC 22.021(a)(2)(B), (f)(1)” in the “Statute for Offense” box.

Delivered: February 12, 2026

Publish

In the
Court of Criminal Appeals of Texas
════════════
No. PD-1059-24
════════════

MICHAEL TUCKER, Appellant

v.

THE STATE OF TEXAS

═══════════════════════════════════════
On State’s Petition for Discretionary Review
From the Third Court of Appeals
Travis County
═══════════════════════════════════════

YEARY, J., filed a dissenting opinion.

I have two problems with the Court’s opinion that prevent me
from joining it.
First, I disagree that we can avoid deciding “whether the
TUCKER – 2

notation [of the complete statute the defendant has been convicted of
violating, including every applicable subsection] must be included [on
the line provided for that information by the Office of Court
Administration’s form for] the judgment of conviction[].” Majority
Opinion at 3. The trial court’s judgment in this case reflects, in the field
provided for what it calls “Statute for Offense[,]” that Appellant
committed an offense under Section 22.021(a)(2)(B), but no reference
is made there to Subsection (f)(1), at least not on that line.
Subsection (f)(1), at the time this offense was committed,
provided that the minimum term of confinement for an offense
committed under Section 22.021 would be increased to “25 years if”
the victim was “under six years of age at the time the offense [was]
committed[.]” See former TEX. PENAL CODE § 22.021(f)(1) (amended
by Acts 2025, 89th Leg., ch. 557 (H.B. 1422), § 21, eff. Sept. 1, 2025).
And, indeed, the third page of the trial court’s judgment in this case
affirmatively reflected, underneath a heading described as “Execution
of Sentence[,]” that the trial court made a special finding that, at the
time of the offense, the child victim was under six years old. So, it is not
as though the judgment in this cause wholly failed to reflect a finding on
the age of the victim.
Our recent decision in Gutierrez v. State, 710 S.W.3d 804 (Tex.
Crim. App. 2025), complicates matters somewhat because, there, this
Court decided that Subsection (f)(1) “operates more as an element of a
TUCKER – 3

super aggravated offense, rather than a [mere] punishment issue.” 710
S.W.3d at 809. 1 And Article 42.01, Sec. 1(13) demands that a judgment
“shall reflect” . . . “[t]he offense for which the defendant was
convicted[.]” TEX. CODE CRIM. PROC. art. 42.01, §1(13). So, at least
arguably, because this Court has said that Subsection (f)(1) “operates
more as an element of a super aggravated offense,” it should have been
included on the line of the judgment announcing the “Statute for
Offense[.]” But the Court now seems to say we can simply avoid
resolving that issue because “[t]he parties now agree” how that issue
should be resolved, at least in this case. Majority Opinion at 3. But that
is, in my view, manifestly not so.
Decisions made by courts are an exercise of the judicial power.
Judges exercise the judicial power; the parties to litigation do not. This
Court has said before that we “must still independently examine [an]
error confessed because our judgments are precedents, and the proper
administration of the criminal law cannot be left merely to the
stipulation of parties.” Estrada v. State, 313 S.W.3d 274, 286 (Tex.
Crim. App. 2010) (internal quotation marks and citation to authority
omitted).
Second, I cannot join the Court’s ultimate disposition of the case.
I do not understand the point of remanding this cause to the trial court

1
I joined most of the Court’s opinion in Gutierrez, but I did not join that part
of the Court’s opinion that contained this quote.
TUCKER – 4

to modify the judgment of conviction. It seems to me this is the least
preferable of three alternative dispositions. First, in light of this Court’s
opinion in Gutierrez v. State, 710 S.W.3d 804 (Tex. Crim. App. 2025),
we could, after pointing out that the part of the court of appeals’ opinion
that suggests that Subsection 22.021(f)(1) is not an element of the
offense but a punishment issue, simply summarily remand the cause to
the court of appeals for further consideration of the issue the Court
itself avoids today. That would be my preferred disposition.
Alternatively, since this Court seems to regard the parties’
agreement as dispositive, the Court could simply modify the judgment
on its own, under Rule 78.1(b) of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 78.1(b) (“The Court of Criminal
Appeals may . . . modify the lower court’s judgment and affirm it as
modified[.]”). But the Court does not choose that option. Instead, the
Court chooses what to my mind is the least desirable alternative by
remanding the cause to the trial court to make a modification that we
could make ourselves. I am concerned that this third option runs an
unacceptable risk of potentially reigniting the appeal itself.
For these reasons, I respectfully dissent.

FILED: February 12, 2026
PUBLISH

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-1059-24

MICHAEL TUCKER, APPELLANT

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY

NEWELL, J., filed a concurring opinion.

There is nothing wrong with the judgment in this case. Article 42.01 of the

Texas Code of Criminal Procedure sets out the requisites for judgments in a

criminal case.1 The judgment in this case complies with that statute. Specific to

1
Tex. Code Crim. Proc. Ann. art. 42.01.
Tucker Concurring — 2

the ground for review, the judgment recites the offense for which Appellant was

convicted, and that the victim of the offense was under six years old. The

judgment even uses the felony judgment form promulgated by the Office of Court

Administration (OCA).2

As near as I can tell, there is no legal requirement that the “Statute for

Offense” box on the felony judgment form require more information than the trial

court entered. Neither is there any legal requirement that the “Offense for Which

Defendant Convicted” box on the felony judgment specify the age of the victim of

the offense. While it may be good practice to include this information in those

particular boxes, I remain skeptical that the trial court was required to do so.

I acknowledge that OCA has promulgated “published guidance” entitled

“TIPS FOR AVOIDING MOST COMMON MISTAKES”. This guidance is

certainly not controlling. So I do not see how there was any “error” legal or

clerical in the way the trial court filled out the judgment form. The absence of this

information does not render the conviction void or alter the applicable punishment

2
Tex. Code Crim. Proc. Ann., art. 42.01, sec. 4 (“The Office of Court Administration of the
Texas Judicial System shall promulgate a standardized felony judgment form that conforms to
the requirements of Section 1 of this article. A court entering a felony judgment shall use the
form promulgated under this section.”).
Tucker Concurring — 3

range or even affect parole eligibility. “It doesn’t look right” isn’t a legal basis for

a new judgment. And if it is, what’s next? Fonts?

This is why I think there is only a “legal” rather than a “clerical” issue; a

court would first have to decide whether there is a legal requirement that the

information be placed in the particular box before it could be said to be clerical. A

judgment nunc pro tunc is an appropriate avenue to make a correction when the trial

court’s records do not mirror the judgment that was rendered.3 But the judgment

rendered in this case does mirror the judgment pronounced. There is no credible

argument that the notations the State requests are necessary to make the judgment

in this case match the judgment that was pronounced. 4 Everyone assumes that

these additional notations are legally required but they simply are not.

That’s why I believe we should leave policing style issues regarding

judgments to the trial courts. As a legal error, this falls into the category of

“unassigned error.” As we have explained previously, reviewing courts cannot

consider “unassigned error” that is not preserved in the trial court. 5 Arguably we

3
See, e.g., Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007).
4
Blanton v. State, 369 S.W.3d 894, 897-98 (Tex. Crim. App. 2012) (“The purpose of a nunc pro
tunc judgment is to provide a method for trial courts to correct the record when there is a
discrepancy between the judgment as pronounced in court and the judgment reflected in the
record.”).
5
See Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006) (reaffirming that appellate courts
are free to review "unassigned error" - a claim that was preserved in the trial below but was not
Tucker Concurring — 4

should hold that the State failed to preserve error regarding the notations in the

judgment. However, Appellant’s concession that the judgment needs to be fixed

waives any possible complaint about this Court’s correction of the judgment

despite a lack of preservation. Given that concession, I join the Court’s correction

of the judgment in this case.

At some point a court will have to decide the legal issue of whether these

notations are legally required. As mentioned above, I believe we should let that

happen in the trial courts. Otherwise, we are signing this Court and the courts of

appeals up to answer OCA’s judgment tipline.

With these thoughts, I concur.

Filed: February 12, 2026

Do Not Publish

raised on appeal); see also Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009) (noting that
a court of appeals should review preservation of error on its own motion, but if it does not do so
expressly, the court of criminal appeals can and should do so when confronted with a
preservation issue).