                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00002-CR



              MICHAEL DEAN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 5th District Court
                 Bowie County, Texas
             Trial Court No. 15F0673-005




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                      MEMORANDUM OPINION
         Michael Dean was convicted by a Bowie County jury of theft under $1,500.00 with two

prior theft convictions, a state jail felony. See Act of May 29, 2011, 82nd Leg., R.S., ch. 1234,

§ 21, 2011 Gen. Laws 3302, 3311 (amended 2015) (current version at TEX. PENAL CODE §

31.03(e)(4)(D) (West Supp. 2016)). After pleading true to two prior felony convictions, Dean was

assessed a punishment of twelve years’ imprisonment. In his sole point on appeal, Dean argues

that his judgment of conviction contained a typographical error in that it recited that he was

convicted of a second degree felony. Dean requests this Court to modify the trial court’s judgment

to recite that he was convicted of a state jail felony. After Dean filed his brief, the State agreed

that the judgment incorrectly recited that Dean was convicted of a second degree felony and that

this was a typographical error. The State then submitted a nunc pro tunc judgment to the trial court

to correct the error. We have received a supplemental clerk’s record containing the trial court’s

nunc pro tunc judgment1 correctly reciting that Dean was convicted of a state jail felony.

         Appellate courts may not decide a moot controversy. See Ex parte Flores, 130 S.W.3d

100, 104–05 (Tex. App.—El Paso 2003, pet. ref’d). “This prohibition is rooted in the separation

of powers doctrine in the Texas and United States Constitutions that prohibits courts from

rendering advisory opinions.” Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex.

1999). Generally, an appeal becomes moot when there ceases to be a controversy between the




1
 “[N]unc pro tunc orders may be used only to correct clerical errors in which no judicial reasoning contributed to their
entry.” In re Melton, 478 S.W.3d 153, 156 (Tex. App.—Texarkana 2015, orig. proceeding) (quoting State v.
Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994)). The incorrect recitation of the degree of the offense in a
judgment is a clerical error.

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litigating parties. Flores, 130 S.W.3d 105. Further, “[a] case becomes moot on appeal when the

judgment of the appellate court can no longer have an effect on an existing controversy or cannot

affect the rights of the parties.” Jack v. State, 149 S.W.3d 119, 123 n.10 (Tex. Crim. App. 2004)

(per curiam); State v. Garza, 774 S.W.2d 724, 727 (Tex. App.—Corpus Christi 1989, pet. ref’d).

       The nunc pro tunc judgment provides Dean with all of the relief he has requested in this

appeal, and any judgment of this Court cannot have any effect on the rights of the parties.

Consequently, we find that Dean’s sole issue on appeal is moot.

       Therefore, we dismiss this appeal as moot.




                                                    Ralph K. Burgess
                                                    Justice

Date Submitted:       July 13, 2017
Date Decided:         July 25, 2017

Do Not Publish




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