Opinion
No. 04-18-00233-CR
06-06-2018
IN RE ROBERT MARTINEZ
MEMORANDUM OPINION
Original Mandamus Proceeding PER CURIAM Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice PETITION FOR WRIT OF MANDAMUS DENIED WITHOUT PREJUDICE
This proceeding arises out of Cause No. 2013CR6698, styled State v. Martinez, pending in the 186th Judicial District Court, Bexar County, Texas, the Honorable Jefferson Moore presiding.
Relator Robert Martinez filed a pro se petition for writ of mandamus complaining that the trial court improperly denied his motion for judgment nunc pro tunc. Martinez asserts the trial court erred in denying his motion because he is entitled to an additional day of jail time credit for the date of his arrest, May 12, 2013.
Under the code of criminal procedure, a defendant is entitled to credit on his sentence for any time he spent in jail from the time of his arrest and confinement until his sentence. TEX. CODE CRIM. PROC. ANN. art. 42.03 § 2(a)(1) (West 2018). The trial court is required to grant such presentence jail-time credit when the sentence is pronounced. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). If the court fails to do so, the defendant may file a motion with the convicting court requesting that it correct the error by entering a judgment nunc pro tunc. Id. Because the law requires the trial court to award credit for presentence time served, the court's failure to do so violates a ministerial duty. In re Daisy, 156 S.W.3d 922, 924 (Tex. App.—Dallas 2005, orig. proceeding). Consequently, a defendant is entitled to mandamus relief upon denial of a motion for judgment nunc pro tunc when he can show his entitlement to the requested "pre-trial jail-time credit is absolutely indisputable under the terms of Article 42.03, Section 2(a)(1)." See In re Brown, 343 S.W.3d 803, 804 (Tex. Crim. App. 2011). The relator has the burden of providing the court with a record establishing his right to mandamus relief. In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig. proceeding).
Here, Martinez has failed to provide this Court with any record supporting his contention that he is entitled to jail-time credit. Martinez has not provided this Court with a copy of the judgment of conviction reflecting how much jail-time credit he was entitled to, if any, and how much jail-time credit he actually received, if any. Based on the insufficient record before us, we cannot determine that it is "absolutely indisputable" that Martinez is entitled to the jail-time credit he seeks. See Brown, 343 S.W.3d at 804.
Because Martinez has failed to demonstrate his right to relief, the petition for writ of mandamus is denied without prejudice to filing a new petition for writ of mandamus with the appropriate record.
PER CURIAM DO NOT PUBLISH