Opinion
NUMBER 13-16-00061-CR
01-27-2016
IN RE DANNY LEE DAVIS
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum OpinionPer Curiam
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case."); see id. R. 47.4 (distinguishing opinions and memorandum opinions).
Relator, Danny Lee Davis, proceeding pro se, filed a petition for writ of mandamus on January 26, 2016. Through this original proceeding, relator seeks to compel the trial court to rule on and grant his motion for nunc pro tunc judgment to correct the credit for his time served. We deny the petition for writ of mandamus.
This original proceeding arises from trial court cause number 93-CR-00220-E in the 148th District Court of Nueces County, Texas. At the current time, the Honorable Guy Williams serves as the presiding judge of the 148th District Court, and is therefore the respondent in this case. See TEX. R. APP. P. 52.2. We note that relator's original 1993 conviction was reversed and remanded by this Court. See Davis v. State, No. 13-93-00611-CR (Tex. App.—Corpus Christi Feb. 23, 1995, pet. ref'd) (not designated for publication). On remand, appellant was found guilty and convicted of first degree felony murder. --------
I. STANDARD OF REVIEW
To be entitled to mandamus relief, the relator must show: (1) that he has no adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
A remedy at law, though it technically exists, "may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate." Greenwell v. Ct. of App. for the Thirteenth Jud. Dist., 159 S.W.3d 645, 648-49 (Tex. Crim. App. 2005) (orig. proceeding). The act sought to be compelled must be a ministerial act that does not involve a discretionary or judicial decision. State ex rel. Young, 236 S.W.3d at 210. The ministerial-act requirement is satisfied if the relator can show a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d at 122. A clear right to relief is shown when the facts and circumstances dictate but one rational decision "under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles." Bowen v. Carnes, 343 S.W.3d 805, 810 n.6 (Tex. Crim. App. 2011); see In re State ex rel. Weeks, 391 S.W.3d at 122.
Consideration of a request or motion that is properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding); see White v. Reiter, 640 S.W.2d 586, 594 (Tex. Crim. App. 1982). There is no adequate remedy at law for a trial court's failure to rule because "[f]undamental requirements of due process mandate an opportunity to be heard." See In re Christensen, 39 S.W.3d 250, 251 (Tex. App.—Amarillo 2000, orig. proceeding) (citing Creel v. Dist. Atty. for Medina Cnty., 818 S.W.2d 45, 46 (Tex. 1991)). Thus, in proper cases, mandamus may issue to compel the trial court to act. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).
The Texas Court of Criminal Appeals has held that where the trial court fails to respond to a nunc pro tunc motion, the appropriate remedy is to seek relief in the appellate courts by way of a petition for a writ of mandamus. See Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004) (per curiam) (regarding the clerical correction by nunc pro tunc motion of pre-sentence jail time credit).
II. BURDEN OF PROOF
It is the relator's burden to properly request and show entitlement to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) ("Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks."). In addition to other requirements, the relator must include a statement of facts supported by citations to "competent evidence included in the appendix or record," and must also provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record." See generally TEX. R. APP. P. 52.3. The relator must also file an appendix and record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); id. R. 52.7(a) (specifying the required contents for the record); see also Walker, 827 S.W.2d at 837; In re Blakeney, 254 S.W.3d at 661.
III. ANALYSIS
By one issue, relator contends that mandamus should issue ordering the trial court to hear and rule on relator's motion for nunc pro tunc judgment to correct his time served. Relator further asks that we order the trial court to grant his motion for nunc pro tunc judgment. Relator contends that the judgment of conviction entered failed to properly credit him with the time served incarcerated from his first arrest and conviction through his appeal.
In the instant case, relator's petition for writ of mandamus was filed in substantial compliance with the Texas Rules of Appellate Procedure and contains sections for the identity of parties, the table of contents, an index of authorities, a statement of facts, a statement of jurisdiction, the issues presented, argument and authorities, and prayer. See generally TEX. R. APP. P. 52. Although the certification does not follow the specific format required by the appellate rules, relator has verified the contents of the petition as true and correct. See id. R. 52.3(j). The petition includes argument supported by appropriate citations to authority and to documents included in the appendix. See id. R. 52.3(h). Relator filed an appendix with his petition, which includes a copy of his July 27, 2015 motion for nunc pro tunc judgment and associated correspondence to the District Clerk of Nueces County. Relator has also included copies of his judgments of conviction and various documents from the Institutional Division of the Texas Department of Criminal Justice pertaining to the time that he has served in prison.
However, relator has failed to meet his burden to obtain mandamus relief with regard to his request to compel the trial court to rule on relator's motion for nunc pro tunc judgment. To obtain mandamus relief for the trial court's refusal to rule on a motion, a relator must establish: (1) the motion was properly filed and has been pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding). The relator must show that the trial court received, was aware of, and was asked to rule on the motion. In re Blakeney, 254 S.W.3d at 661; In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). In this regard, the mere filing of a motion does not equate to a request that the trial court rule on the motion. See In re Sarkissian, 243 S.W.3d at 861; In re Hearn, 137 S.W.3d at 685; In re Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. In re Shredder Co., 225 S.W.3d at 680 ("Relator has made repeated requests for a ruling on its motion.").
Here, there is nothing in the limited record before this Court to establish that relator's motion was properly filed with the trial court or that relator has ever requested a ruling on his motion or otherwise called the motion to the respondent's attention. See Barnes, 832 S.W.2d at 426 (denying mandamus petition where relator did not ask for a hearing on his motions or take any action to alert trial court that it had not yet considered his motions). Accordingly, relator has not furnished an appendix sufficient to support his claim for relief insofar as he has not demonstrated that his pleadings were presented to the respondent and the respondent has refused to rule on them. See In re Dimas, 88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding); In re Chavez, 62 S.W.3d at 228.
Moreover, to the extent that relator seeks relief on the merits for his request for credit for time served, the substantive merit of relator's motions is not before us in this original proceeding. "While it is a basic premise that an appellate court lacks the power to compel a trial judge to do a particular act involving or requiring discretion on his part, this Court is empowered to order a trial judge to exercise his discretion in some manner." O'Donniley v. Golden, 860 S.W.2d 267, 269 (Tex. App.—Tyler 1993, orig. proceeding). Thus, while we have jurisdiction to direct the trial court to make a decision on relator's motion for nunc pro tunc judgment, we may not tell the court what that decision should be. See In re Cunningham, 454 S.W.3d 139, 143 (Tex. App.—Texarkana 2014, orig. proceeding); In re Blakeney, 254 S.W.3d at 661; In re Shredder Co., 225 S.W.3d 676, 680 (Tex. App.—El Paso 2006, orig. proceeding); In re Ramirez, 994 S.W 2d 682, 684 (Tex. App.—San Antonio 1998, orig. proceeding).
IV. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that the petition should be denied. Accordingly, we deny the petition for writ of mandamus. In so holding, we do not reach the merits of relator's pleadings or direct the trial court regarding how to rule on them. See In re Blakeney, 254 S.W.3d at 661; O'Donniley, 860 S.W.2d at 269.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed this the 27th day of January, 2016.