Brett Johnson v. State ( 2009 )

NO. 07-09-0286-CR, 07-09-0287-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 30, 2009
______________________________
BRETT JOHNSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-422,579, 2009-422,665; HONORABLE BRAD UNDERWOOD, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Brett Johnson, filed a notice of appeal with this Court seeking appeal of
his conviction and sentence in trial court cause numbers 2009-422,579 and 2009-422,665.
On October 23, 2009, the clerk’s records in these two causes were filed with the Clerk of
this Court. Neither clerk’s record contains a judgment convicting appellant in the above
identified cause numbers, rather, there are orders dismissing each cause. Concluding that
we have no jurisdiction to address these appeals, we dismiss them as moot.
A threshold question in any case is whether the court has jurisdiction over the
pending controversy. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996).
A court has jurisdiction to determine whether it has jurisdiction. Roberts, 940 S.W.2d at
657; Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996).
Appellate courts are prohibited from deciding moot controversies. See Ex parte
Flores, 130 S.W.3d 100, 104-05 (Tex.App.–El Paso 2003, no pet.). This prohibition is
rooted in the separation of powers doctrine contained in the United States and Texas
Constitutions that prohibit courts from rendering advisory opinions. See TEX . CONST . art.
II, § 1; Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
A case is moot when (1) a party seeks a judgment to resolve a controversy, but no
controversy exists, or (2) judgment is sought on a matter which cannot have any practical
legal effect on an existing controversy. Texas Health Care Info. Council v. Seton Health
Plan, Inc., 94 S.W.3d 841, 846-47 (Tex.App.–Austin 2002, pet. denied). Because
appellant seeks relief from a conviction and a sentence that was never rendered, no
controversy exists in these appeals. Further, our proceeding with the appeals and
rendering opinions and judgments would have no practical legal effect on any existing
controversy. Thus, we conclude that the appeals have become moot and dismiss them
for want of jurisdiction. See Cabrera v. State, No. 01-02-00513-CR, 2002 Tex.App. LEXIS
5604, at *1 (Tex.App.–Houston [1st Dist.] August 1, 2002, no pet.) (memo. op.).
Accordingly, these appeals are dismissed as moot.
Mackey K. Hancock
Justice
Do not publish.
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