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).
04-13-00427-CR
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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04-13-00427-CR
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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