Summary
holding that "complaints concerning clerical errors in judgment that are final and non-appealable are required to be filed in the Court of Criminal Appeals"
Summary of this case from Medina v. StateOpinion
NO. 09-12-00217-CR
05-23-2012
IN RE BENNY DWAYNE HAVARD
Original Proceeding
MEMORANDUM OPINION
Benny Dwayne Havard filed a petition for writ of mandamus asking that we compel the trial court to address his motion for judgment nunc pro tunc, in which Havard asked the trial court to correct the sentence imposed by final and non-appealable felony judgment. According to Havard, the trial court sentenced him to an illegal sentence. Havard's sentence was the product of a plea bargain agreement that resulted from the State charging him with two counts of forgery. See generally Tex. Penal Code Ann. § 32.21(d) (West 2011). Havard contends his sentence is illegal because the trial court improperly used prior convictions to enhance his sentence, and that the sentences for which he was eligible were not subject to being enhanced by the prior convictions on which the trial court relied.
First, we address Havard's request that he be given court-appointed counsel to assist with his petition. We deny his request because Havard has not demonstrated that appointment of counsel is required in the interests of justice under the circumstances he presents here. See Tex. Code Crim. Proc. Ann. art. 1.051(d)(4) (West Supp. 2011) (providing that indigent defendants are to receive court-appointed counsel in appellate proceedings "if the court concludes that the interests of justice require representation").
Next, we address Havard's argument that the trial court's judgment can be corrected by mandamus based on his claim that the errors in the judgment were clerical. To obtain mandamus relief, Havard must show that he has a clear and indisputable right to the act sought to be compelled. Banales v. Court of Appeals for Thirteenth Judicial Dist., 93 S.W.3d 33, 35 (Tex. Crim. App. 2002). Havard argues that the trial court is required to act on his petition seeking to correct the judgment's sentence because it contains a mistake that he has characterized as clerical. However, the trial court has never ruled on Havard's motion that asked the trial court to correct the length of his sentence.
Generally, the trial court has a duty to rule on a properly and timely filed motion. See State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987). In this case, Havard has not shown that there presently exists an active proceeding before the convicting court, as the judgment sentencing him to four years in prison became final before he initiated the proceedings that are the subject of his petition for mandamus. Although presented to the trial court as a motion for judgment nunc pro tunc, the motion that Havard filed with the trial court is actually a collateral attack on the judgment. Compare Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006) (holding that a claim of illegal sentence based on improper enhancement is cognizable on a writ of habeas corpus), with Ex parte Pena, 71 S.W.3d 336, 336-37 (Tex. Crim. App. 2002) (stating that a claim that a judgment is inaccurate is not a basis for habeas relief). However, habeas corpus proceedings under Article 11.07 of the Texas Code of Criminal Procedure provide the exclusive post-conviction remedy for Havard's complaint that his sentence of four years was a sentence that the Legislature did not authorize. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2011). Even were we to address the merits of Havard's complaint, it appears that the trial court's decision to assess a four-year sentence was a judicial decision and not one that resulted from clerical errors. Moreover, even if Havard were to complain about a matter that was actually a clerical error, his petition for mandamus relief should not have been filed in this court, as complaints concerning clerical errors in judgment that are final and non-appealable are required to be filed in the Court of Criminal Appeals. See In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding) (explaining that mandamus relief relating to a post-conviction proceeding must be obtained from the Court of Criminal Appeals).
We conclude that Havard has not shown that he is entitled to relief in a mandamus proceeding filed in this court. We deny Havard's petition for writ of mandamus.
PETITION DENIED.
PER CURIAM Do Not Publish Before Gaultney, Kreger, and Horton, JJ.