Albert Nicolas v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-13-00834-CR
& 04-13-00835-CR
Albert NICOLAS,
Appellant
v.
The STATE of TexasAppellee
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court Nos. B93-6 & B93-7
Honorable M. Rex Emerson, Judge Presiding
PER CURIAM
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: March 19, 2014
DISMISSED AS MOOT
In previous judgments in which appellant Albert Nicolas was convicted of aggravated
sexual assault of a child, the trial court imposed $5,766.86 in costs. Several years later, appellant
filed a “Motion for Nunc Pro Tunc to Correct Judgments and Sentences, Motion to Set, Motion
for Bench Warrant.” In this motion, appellant sought to have the trial court correct the judgments
in his prior convictions “to remove the attorney fees” imposed because appellant was at all times
indigent. By order signed October 1, 2013, the trial court found appellant was indigent and stated
04-13-00834-CR & 04-13-00835-CR
appellant “is no longer required to pay the fine, court cost due to Kerr County, as required in the
Judgment recorded in the above entitled cause in the amount of $5,766.86.” 1
Despite receiving what appears to be all the relief he sought by way of his motion, appellant
timely filed a notice of appeal. Based on our initial review of the clerk’s record, it appeared
appellant’s appeals are moot – given that he received the relief he sought. Because it appeared
any issues appellant might raise would be moot, we ordered appellant to file in this court on or
before February 24, 2014, a statement of the issues he intends to raise on appeal. We advised that
if appellant failed to file a statement of issues as ordered, we would dismiss his appeal as moot.
Appellant did not respond.
A case is moot when the issues presented are no longer live or the parties lack a legally
cognizable interest in the outcome. Murphy v. Hunt, 455 U.S. 478, 481 (1982). Texas has applied
the mootness doctrine in juvenile cases. See In re R.M., 234 S.W.3d 103, 104 (Tex. App.—El
Paso 2007, no pet.) (citing In re G.E., 224 S.W.3d 647 (Tex. App.—El Paso 2006, no pet.)). In
G.E., the juvenile appealed the disposition order and his placement in a boot camp. Id. at 648.
While the appeal was pending, the juvenile’s probation was terminated. Id. The court of appeals
dismissed the appeal as moot because there was no live controversy between the parties and
resolution of the issues on appeal would have had no effect. Id.
The Texas Court of Criminal Appeals has also applied the mootness doctrine. In Winkler
v. State, 252 S.W.2d 944, 944 (Tex. Crim. App. 1952), the defendant appealed his drunk driving
conviction. On appeal, the defendant challenged the trial court’s assessment of a fine and costs.
Id. The Court of Criminal Appeals held that because the defendant had paid the fine and costs, the
appeal was moot. Id.; see also Fouke v. State, 529 S.W.2d 772, 772 (Tex. Crim. App. 1975)
1
Nicolas recites a different dollar amount in his motion. However, the judgment in the clerk’s record reflects costs
of $5,766.86.
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04-13-00834-CR & 04-13-00835-CR
(holding appeal from conviction for resisted arrest was moot because defendant voluntarily paid
fine and costs, which was only punishment assessed).
In this case, Nicolas sought to have the trial court remove the imposition of the costs
assessed in the prior judgments. The trial court granted Nicolas the relief he sought. Accordingly,
we hold the appeals are moot. Proceeding with the appeals and rendering a judgment would have
no practical legal effect on an existing controversy. We therefore dismiss the appeals as moot.
PER CURIAM
Do Not Publish
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