                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-13-00427-CR

                                         IN RE Harold BOWENS

                                     Original Mandamus Proceeding 1

PER CURIAM

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: August 28, 2013

PETITION FOR WRIT OF MANDAMUS DENIED

           On July 8, 2013, relator Harold Bowens filed a petition for writ of mandamus complaining

of the trial court’s failure to rule on his “Motion Nunc Pro Tunc to Correct Judgment and

Sentence.” The trial court signed an order denying relator’s motion on July 15, 2013, and this court

subsequently issued an opinion on August 7, 2013 denying relator’s mandamus petition as moot. 2

Relator then filed a supplemental petition in this court complaining of the trial court’s denial of his

motion nunc pro tunc. For the following reasons, we deny relator’s supplemental petition for writ

of mandamus.




1
  This proceeding arises out of Cause No. 1985CR3726W, styled The State of Texas v. Harold Bowens, pending in the
290th Judicial District Court, Bexar County, Texas, the Honorable Melisa Skinner presiding.
2
  In re Harold Bowens, No. 04-13-00427-CR, 2013 WL 4010202 (Tex. App.—San Antonio Aug. 7, 2013, orig.
proceeding).
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        Bowens was charged with capital murder in 1985 in connection with the shooting death of

an electronics store clerk that occurred during a robbery. Bowens, who was then represented by

appointed counsel, waived his right to be prosecuted by indictment of a grand jury and agreed to

testify against his co-defendant and plead guilty to a reduced charge of non-capital felony murder

in exchange for the State’s agreement to recommend a life sentence. The life sentence carried with

it the possibility of parole.

        Bowens filed a pro se motion for judgment nunc pro tunc in the trial court in April 2013.

In his motion, Bowens asserted he was actually innocent of the offense of murder and that the 1985

judgment of conviction was erroneous and based on an improperly obtained plea bargain

agreement which has affected his eligibility for parole. The trial court denied the motion for

judgment nunc pro tunc, concluding there was no error in the defendant’s judgment. Bowens now

seeks mandamus relief from this court, requesting that he be released on parole due to the alleged

breach of the plea agreement. In his supplemental mandamus petition, Bowens asserts the repeated

denials of his applications for parole are, “not what the judge had in mind” at the time of the plea

agreement.

        “The purpose of a nunc pro tunc order is to correctly reflect from the records of the court

a judgment actually made by it, but which for some reason was not entered of record at the proper

time.” Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980). The trial court retains the

power to correct clerical errors appearing in the judgment by nunc pro tunc order even after the

expiration of plenary power. Id. An error in the entry of judgment is considered “clerical” if it did

not arise as the result of judicial reasoning. Id. The trial court has found that the judgment in this

instance accurately reflected the trial court’s action. While Bowens appears to contend, in part, the

alleged error may have been clerical in nature, the record does not support his assertion. Therefore,



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we cannot conclude the trial court clearly abused its discretion in denying the motion for judgment

nunc pro tunc.

        To the extent Bowens complains of a judicial, rather than a clerical, error in the judgment

of conviction, the trial court did not abuse its discretion in denying the motion for judgment nunc

pro tunc because judicial error in the entry of judgment, if any, is not susceptible to correction by

nunc pro tunc. See State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994). No direct appeal

was taken from Bowens’s judgment of conviction.

        In his supplemental filing in this court, Bowens included a document entitled “Appeal of

Denied Motion for Nunc Pro Tunc Correction of Erroneous Sentence.” To the extent Bowens is

seeking to appeal from the trial court’s order denying his motion for judgment nunc pro tunc, we

do not have jurisdiction to consider such an appeal. See Reyes v. State, No. 04-12-00267-CR, 2012

WL 2602965, at *1 (Tex. App.—San Antonio July 5, 2012, no pet.) (not designated for

publication) (denial of motion for judgment nunc pro tunc is not an appealable order, proper

remedy is by petition for writ of mandamus); see also Castor v. State, 205 S.W.3d 666, 667 (Tex.

App.—Waco 2006, no pet.). Any appeal from the trial court’s order is dismissed for lack of

jurisdiction.

        Because we conclude the trial court did not abuse its discretion in denying relator’s motion

for judgment nunc pro tunc, this court is of the opinion that relator is not entitled to mandamus

relief. Accordingly, relator’s supplemental petition for writ of mandamus is denied. See TEX. R.

APP. P. 52.8(a).

                                                  PER CURIAM


DO NOT PUBLISH




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