Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

Nos. 04-13-00834-CR

 & 04-13-00835-CR

Albert NICOLAS,

Appellant

v.

The STATE of TexasAppellee

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

PER CURIAM

Sitting: Marialyn Barnard, Justice

Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: March 19, 2014

DISMISSED AS MOOT

In previous judgments in which appellant Albert Nicolas was convicted of aggravated 

sexual assault of a child, the trial court imposed $5,766.86 in costs. Several years later, 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 
04-13-00834-CR & 04-13-00835-CR

appellant “is no longer required to pay the fine, court cost due to Kerr County, as required in the 

Judgment recorded in the above entitled cause in the amount of $5,766.86.”1

Despite receiving what appears to be all the relief he sought by way of his motion, appellant 

timely filed a notice of appeal. Based on our initial review of the clerk’s record, it appeared

appellant’s appeals are moot – given that he received the relief he sought. Because it appeared 

any issues appellant might raise would be moot, we ordered appellant to file in this court on or 

before February 24, 2014, a statement of the issues he intends to raise on appeal. We advised that 

if appellant failed to file a statement of issues as ordered, we would dismiss his appeal as moot. 

Appellant did not respond. 

A case is moot when the issues presented are no longer live or the parties lack a legally 

cognizable interest in the outcome. Murphy v. Hunt, 455 U.S. 478, 481 (1982). Texas has applied 

the mootness doctrine in juvenile cases. See In re R.M., 234 S.W.3d 103, 104 (Tex. App.—El 

Paso 2007, no pet.) (citing In re G.E., 224 S.W.3d 647 (Tex. App.—El Paso 2006, no pet.)). In 

G.E., the juvenile appealed the disposition order and his placement in a boot camp. Id. at 648. 

While the appeal was pending, the juvenile’s probation was terminated. Id. The court of appeals 

dismissed the appeal as moot because there was no live controversy between the parties and 

resolution of the issues on appeal would have had no effect. Id. 

The Texas Court of Criminal Appeals has also applied the mootness doctrine. In Winkler 

v. State, 252 S.W.2d 944, 944 (Tex. Crim. App. 1952), the defendant appealed his drunk driving 

conviction. On appeal, the defendant challenged the trial court’s assessment of a fine and costs. 

Id. The Court of Criminal Appeals held that because the defendant had paid the fine and costs, the 

appeal was moot. Id.; see also Fouke v. State, 529 S.W.2d 772, 772 (Tex. Crim. App. 1975) 

1 Nicolas recites a different dollar amount in his motion. However, the judgment in the clerk’s record reflects costs 

of $5,766.86. 

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04-13-00834-CR & 04-13-00835-CR

(holding appeal from conviction for resisted arrest was moot because defendant voluntarily paid 

fine and costs, which was only punishment assessed). 

In this case, Nicolas sought to have the trial court remove the imposition of the costs

assessed in the prior judgments. The trial court granted Nicolas the relief he sought. Accordingly, 

we hold the appeals are moot. Proceeding with the appeals and rendering a judgment would have 

no practical legal effect on an existing controversy. We therefore dismiss the appeals as moot. 

PER CURIAM

Do Not Publish

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