Alan Christopher Nelson v. State ( 2013 )

DISMISS; and Opinion Filed November 18, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00069-CR
ALAN CHRISTOPHER NELSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-8017191
MEMORANDUM OPINION
Before Justices O'Neill, Lang-Miers, and Evans
Opinion by Justice Lang-Miers
Appellant Alan Christopher Nelson appeals from the denial of his post-conviction request
for “judicial clemency” pursuant to article 42.12, section 20(a) of the Texas Code of Criminal
Procedure. On appeal appellant argues that the trial court erred as a matter of law when it
concluded that it lacked jurisdiction to grant appellant’s request. For the following reasons, we
dismiss the appeal for lack of appellate jurisdiction.
BACKGROUND
In 1991 appellant pleaded guilty to a charge of credit card abuse and was assessed a
punishment of three years in prison, probated for four years, and a $400 fine. In 1994 the trial
court granted appellant’s motion for early release from probation. In 2012 appellant filed a
motion to set aside the conviction and to dismiss the charges pursuant to article 42.12, section
20(a) of the code of criminal procedure. In support of his motion appellant attached an affidavit
stating, among other things, that (1) his 1991 conviction is his only conviction, (2) he has been
married for over 12 years and has 2 children, (3) he and his wife own a home and a children’s
clothing resale store, (4) he believes he has been denied employment opportunities in the past
due to his felony conviction, and (5) setting aside his conviction will allow him to attend
“Paramedic and Fireman school.” The trial court held a hearing on appellant’s motion. During
that hearing, counsel for the State cited two cases—State v. Shelton, 396 S.W.3d 614 (Tex.
App.—Amarillo 2012, pet. ref’d), and State v. Fielder, 376 S.W.3d 784 (Tex. App.—Waco
2011, no pet.)—and argued that the trial court lacked jurisdiction to grant any relief to appellant
because more than thirty days had passed since appellant was discharged from community
supervision. The trial court agreed with the State and concluded that it lacked jurisdiction to
consider appellant’s motion.
ANALYSIS
On appeal appellant argues that (1) the trial court’s ruling was contrary to the express
language of article 42.12, section 20(a), (2) the trial court’s ruling conflicted with the decision in
Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002), and (3) the trial court had jurisdiction
over the matter because the request for “judicial clemency” was actually a separate civil action
instead of a continuation of the underlying criminal case.
This case is analogous to Cooksey v. State, No. 05-12-00301-CR, 2013 WL 1934943 (Tex.
App.—Dallas May 10, 2013, no pet.), in which the defendant appealed from the denial of a
similar motion to set aside his conviction and to dismiss the charges pursuant to article 42.12,
section 20(a) of the code of criminal procedure and raised the same arguments. 1 As we
1
We note that in his motion to consolidate this case with Cooksey, appellant acknowledged that this case is “practically identical” to
Cooksey and that “[t]his Court’s ruling in Cooksey will directly affect this appeal and the rights of the parties involved.”
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explained in Cooksey, it appears that “whether to grant ‘judicial clemency’ is left to the trial
court’s sole discretion.’” Id., 2013 WL 1934943, at *2. As a result, we concluded in Cooksey
that we lacked jurisdiction over the appeal because “there is no statutory authority of which we
are aware authorizing an appeal from the denial of a motion for ‘judicial clemency.’” Id. In this
case, because appellant is likewise appealing from the denial of a motion to set aside a
conviction and to dismiss the charges pursuant to article 42.12, section 20(a) of the code of
criminal procedure, we conclude that we lack jurisdiction to consider this appeal, and we do not
reach any of appellant’s issues, including the issue of whether the trial court had jurisdiction to
grant appellant’s motion. See id., 2013 WL 1934943, at *4. We dismiss the appeal for want of
jurisdiction.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
130069F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ALAN CHRISTOPHER NELSON, On Appeal from the 219th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 219-8017191.
No. 05-13-00069-CR V. Opinion delivered by Justice Lang-Miers.
Justices O'Neill and Evans participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the above appeal is DISMISSED for want of
jurisdiction.
Judgment entered this 18th day of November, 2013.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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