Opinion
No. 04-10-00275-CR
Delivered and Filed: April 14, 2010. DO NOT PUBLISH.
Original Habeas Corpus Proceeding. Petition for Writ of Habeas Corpus Dismissed For Lack of Jurisdiction.
This proceeding arises out of Cause No. 1996-CI-03793, styled In the Interest of C.B. and C.D.B., Minor Children, in the 288th Judicial District Court, Bexar County, Texas, the Honorable Janet P. Littlejohn presiding.
Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
MEMORANDUM OPINION
On April 5, 2010, applicant Alfonso Barron filed an original petition for a writ of habeas corpus in this court seeking credit for pre-sentence jail time served. This court, however, is not authorized to grant the relief requested. Applicant was found in contempt of court for failure to pay child support for his two minor children. His commitment to jail was suspended, and he was placed on community supervision on July 8, 2003. Subsequently, applicant's community supervision was revoked, causing him to serve time in jail. On January 28, 2009, the trial court reinstated applicant's community supervision after a hearing. The State filed a motion to revoke applicant's community supervision on December 10, 2009. On March 3, 2010, the trial court held a hearing, found applicant violated the terms of his community supervision by failing to pay both current and back child support, revoked applicant's community supervision, and committed applicant to the county jail "for 180 days and until he pays $7,500.00 in child support arrearages." In his petition for writ of habeas corpus, applicant states that he has been continuously confined in jail since his February 20, 2010 arrest on the motion to revoke. Applicant contends he is entitled to 140 days of jail time credit ("30 days flat and 90 days trusty") for time spent confined in the county jail from the date of his arrest to the date of his sentencing on March 8, 2010. The appropriate remedy in this situation is for applicant to present the issue of jail time credit to the trial court by filing a motion for judgment nunc pro tunc in the trial court. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). Matters that may be raised and resolved by nunc pro tunc proceedings in the trial court may not be considered in a writ of habeas corpus proceeding. Id.; Ex parte Pena, 71 S.W.3d 336, 336-37 (Tex. Crim. App. 2002). If the trial court fails to rule on his motion for judgment nunc pro tunc, applicant may seek relief in this court by filing a petition for writ of mandamus. Ybarra, 149 S.W.3d at 149. Accordingly, we dismiss this petition for writ of habeas corpus for lack of jurisdiction.