in Re Kenneth R. Sowell

Majority and Dissenting Opinions filed August 4, 2022, Withdrawn; Petition
for Writ of Mandamus Denied; Substitute Memorandum Majority and
Dissenting Opinions filed August 5, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00095-CR
IN RE KENNETH R. SOWELL, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
262nd District Court
Harris County, Texas
Trial Court Cause No. 1007515
MEMORANDUM MAJORITY OPINION
Our majority opinion of August 4, 2022 is withdrawn and we issue this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,1 filed in relator’s appeal of his
conviction,2 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.
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.3
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot, and Spain (Spain,
J., dissenting).
Do Not Publish — Tex. R. App. P. 47.2(b).
1
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).
2
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).
3
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.).
2