Albert Nicolas v. State ( 2014 )

The State of TexasAppellee/s Fourth Court of Appeals San Antonio, Texas February 3, 2014 Nos. 04-13-00834-CR & 04-13-00835-CR Albert NICOLAS, Appellant v. 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 ORDER 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 appellant “is no longer required to pay the fine, court cost due to Kerry County, as required in the Judgment recorded in the above entitled cause in the amount of $5,766.86.” Despite receiving what appears to be all the relief he sought by way of his motion, appellant timely filed a notice of appeal. As required by Rule 25.2(d) of the Texas Rules of Appellate Procedure, the trial court filed certifications of appellant’s right to appeal. See TEX. R. APP. P. 25.2(d). The certifications state appellant has no right to appeal. We disagree. Although it may ultimately be determined that appellant’s appeal is moot – given that it appears he received the relief he sought – we cannot make such a determination until we know the issues appellant intends to raise on appeal. Accordingly, we cannot say, at this time, that appellant’s appeal is moot. Based on our review of the clerk’s record, it appears the trial court’s certifications are incorrect. The clerk’s office of this court contacted the trial court by telephone and requested that the trial court filed an amended certification. The trial court declined, explaining appellant received the relief he sought and was therefore not entitled to appeal. However, as explained above, we cannot yet determine if the appeal is, in fact, moot. We find appellant does have the right to appeal even though it may later be determined by this court that appellant’s complaints are moot. We therefore ORDER the trial court to complete an amended certification in each cause number, correcting the defect in the notification of appellant’s appellate rights on or before February 13, 2014. We ORDER the trial court clerk to file supplemental clerk’s records containing the trial court’s amended certifications no later than fifteen days after the date the trial court completes the amended certifications. We further order the clerk of this court to serve a copy of this order on appellant, all counsel, and the trial court clerk, and the trial court. _________________________________ Marialyn Barnard, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 3rd day of February, 2014. ___________________________________ Keith E. Hottle Clerk of Court