Opinion
14-22-00095-CR
08-05-2022
IN RE KENNETH R. SOWELL, Relator
Do Not Publish - Tex.R.App.P. 47.2(b).
ORIGINAL PROCEEDING WRIT OF MANDAMUS 262nd District Court Harris County, Texas Trial Court Cause No. 1007515
Panel consists of Chief Justice Christopher and Justices Bourliot, and Spain (Spain, J., dissenting).
MEMORANDUM MAJORITY OPINION
Frances Bourliot Justice
Our majority opinion of August 4, 2022 is withdrawn and we issue this substitute opinion. On Monday, February 14, 2022, relator Kenneth R. Sowell filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann. § 22.221; see also Tex.R.App.P. 52. In the petition, relator asks this Court to compel the presiding judge of the 262nd District Court of Harris County, to rule on his motion for judgment nunc pro tunc.
Relator's motion claims the jury did not find him guilty as charged in the indictment, therefore the deadly weapon finding should be removed from the judgment. The records before this court, filed in relator's appeal of his conviction, reflect the verdict of the jury as follows: "We, the Jury, find the defendant, Kenneth Ray Sowell, guilty of aggravated robbery, as charged in the indictment." The indictment charged appellant with the use and exhibition of a deadly weapon, namely a firearm. Accordingly, relator is not entitled to removal of the deadly weapon finding from the judgment.
An appellate court may take judicial notice of its own records in the same or related proceedings involving the same or nearly the same parties, but not for the purpose of considering testimony not shown in the record of the case before it. Fletcher v. State, 214 S.W.3d 5, 7 (Tex. Crim. App. 2007).
See Sowell v. State, No. 14-05-00864-CR, 2006 WL 3091446, at *1 (Tex. App.-Houston [14th Dist.] Nov. 2, 2006, no pet.) (mem. op., not designated for publication).
Under these circumstances, we will not require the trial court to perform the useless act of ruling on relator's motion for judgment nunc pro tune. See Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002) ("The law does not require a futile act."). Relator's petition for writ of mandamus is denied.
The dissent would abate this proceeding based upon relator's petition for writ of mandamus in the higher court. That filing is not before us and is not represented to be a post-conviction writ of habeas corpus, which would deprive this court of jurisdiction of this petition. See In re Briscoe, 230 S.W.3d 196 (Tex. App.-Houston [14th Dist.] 2006, no pet.).
MEMORANDUM DISSENTING OPINION
Charles A. Spain Justice.
Relator Sowell asks this court to compel the trial judge to rule on a motion for judgment nunc pro tunc in a case in which he has previously appealed. See State v. Sowell, No. 1007515 (262d Dist. Ct., Harris Cty., Tex., Aug. 15, 2005), aff'd, No. 14-05-00864-CR, 2006 WL 3091446 (Tex. App.-Houston [14th Dist.] Nov. 2, 2006, no pet.) (mem. op., not designated for publication).
Sowell requests a mandamus on Hon. Randy Roll, the former judge of the 262nd District Court. See Tex.R.App.P. 7.2(b).
The public docket of the court of criminal appeals reflects that Sowell has also filed an "application for writ of mandamus" under the original jurisdiction of that court. In a per curiam order, the court of criminal appeals recites that Sowell "contends that he filed a motion for judgment nunc pro tunc in the trial court, but that the trial court has not ruled on that motion." In re Sowell, No. WR-68,434-05, 2022 WL 852775, at *1 (Tex. Crim. App. Mar. 23, 2022) (order) (per curiam). The court of criminal appeals ordered that "Respondent, the Judge of the 262nd District Court, shall respond as to whether it has ruled on Relator's motion for judgment nunc pro tunc, and if not, why not. Respondent shall file a response within fifteen days from the date of this order." Id. While the order reflects that the underlying trial court proceeding is the same cause number as that in the petition for a writ of mandamus in this court, a copy of the "application for writ of mandamus" has neither been filed with the clerk of this court, nor have I looked further than the March 23, 2022 order.
The public docket of the court of criminal appeals reflects that on July 15, 2022 the clerk of that court sent out the following notice: "On this day, the supplemental clerk's record, in response to the order issued by this Court, has been received and presented to the Court." The supplemental clerk's record is not available on the website.
I do not disagree, were this court to address Sowell's complaint on the merits, that it appears the judgment is correct. But as Sowell's mandamus proceeding is still pending in the court of criminal appeals and that higher court has required the trial court to respond and received a response, I do not wish to suggest that the court of criminal appeals is requiring the trial court "to perform a useless act."
I applaud the court for deciding the case for reasons other than petitioner's purported noncompliance with judicially-created “extra rules” concerning presentment of motions by incarcerated persons. See In re Gomez, 602 S.W.3d 71, 74-75 (Tex. App.-Houston [14th Dist.] 2019) (orig. proceeding) (Spain, J., concurring); In re Pete, 589 S.W.3d 320, 323-324 (Tex. App.-Houston [14th Dist.] 2019) (orig. proceeding) (Spain, J., concurring); see also In re Sowell, No. 14-21-00387-CR, 2021 WL 4164923, at *1 (Tex. App.-Houston [14th Dist.] Sept. 14, 2021) (orig. proceeding) (Spain, J., dissenting).
I would abate the proceeding in this court until the court of criminal appeals has concluded the mandamus proceeding in No. WR-68,434-05.
Accordingly, I respectfully dissent to the court's disposition of this original proceeding.