Opinion
No. 05-15-01478-CV
01-05-2016
IN RE JIMMY DEWAYNE HILL, Relator
Original Proceeding from the 363rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-0953582-W
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Brown
Opinion by Justice Fillmore
In this petition for writ of mandamus relator requests that we order the trial court to rule on his motion for judgment nunc pro tunc, which seeks to delete the deadly-weapon finding from the judgment adjudicating him guilty of aggravated robbery and which seeks the award of additional pre-sentence time credits beyond those already reflected in the judgment. We conditionally grant the petition in part.
In July 2009, relator pleaded guilty to aggravated robbery with a deadly weapon. He was granted deferred adjudication and was placed on community supervision for a period of five years. In March 2011, relator was arrested for the offense of burglary of a building. The State moved to revoke his probation and proceed to adjudication of guilt. Following adjudication of guilt, relator was sentenced to fourteen years' imprisonment. The judgment adjudicating guilt included a deadly-weapon finding and awarded relator certain pre-sentence time credits.
Relator filed numerous motions complaining about both the deadly weapon finding and about his presentence time credit. On July 22, 2014 and November 4, 2014, the trial court signed nunc pro tunc orders addressing the deadly-weapon finding. The record does not reflect any action by the trial court on the complaint concerning relator's pre-sentence time credit.
The State argues relator has not provided an adequate record to support mandamus relief. Relator has requested that the Court transfer the record from his most recent appeal, Hill v. State, No. 05-14-01067-CR, to this mandamus. By order issued concurrently with this opinion we have granted the motion. Moreover, the appendix attached to the State's response to the petition for writ of mandamus also provides an adequate basis for determining that relator is entitled to mandamus relief.
Mandamus relief is appropriate in a criminal case only when a relator establishes (1) that he has no adequate remedy at law to redress the harm he alleges, and (2) that what he seeks to compel is a ministerial act, not a discretionary or judicial decision. In re Allen, 462 S.W.3d 47, 49 (Tex. Crim. App. 2015) (orig. proceeding). To demonstrate that the trial court has failed to perform a ministerial act, a relator must show that he has a clear right to the relief sought. Id. The act requested must be "positively commanded and so plainly prescribed under the law as to be free from doubt." Id. at 50.
The relief the relator seeks from this Court is an order compelling the trial court to rule on his motion. A trial court has a ministerial duty to rule upon a properly filed and timely presented motion. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). To be properly filed and timely presented, a motion must be presented to a trial court at a time when the court has authority to act on the motion. See In re Hogg-Bey, No. 05-15-01421-CV, 2015 WL 9591997, at *1-2 (Tex. App.—Dallas Dec. 30, 2015, orig. proceeding) (mem. op., not designated for publication). A trial court has the authority to act on a motion for judgment nunc pro tunc to correct a clerical error in the judgment even after its general jurisdiction over the case has expired. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994); TEX. R. APP. P. 23.1. A trial court has a reasonable time within which to consider such a motion and to rule. In re Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding). If the trial court fails to respond to a motion for judgment nunc pro tunc within a reasonable time, the movant may seek relief by filing an application for writ of mandamus in a court of appeals. Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010) (orig. proceeding); Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004) (orig. proceeding).
Whether to grant or deny a motion is generally a question for the trial court to determine in the first instance. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding); State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 n.3 (Tex. Crim. App. 2003) (orig. proceeding). For that reason we do not address the merits of the motions on which relator is seeking the trial court's ruling and address only the question whether relator is entitled to a ruling on the motions he has filed. --------
Here, the trial court has addressed relator's complaint regarding the deadly-weapon finding. Relator failed to timely appeal the trial court's judgment nunc pro tunc with regard to the deadly-weapon finding. Hill v. State, 05-14-01067-CR, 2015 WL 2394099, at *2 (Tex. App.—Dallas May 18, 2015, pet. ref'd) (mem. op., not designated for publication). He is not entitled to mandamus relief with regard to the deadly-weapon finding.
The trial court has not, however, ruled on relator's time-credit complaint, which is a matter that the trial court retains authority to consider after the expiration of its general jurisdiction. See Bates, 889 S.W.2d at 309. Relator has properly presented his complaint by his motions for judgment nunc pro tunc dated February 2012 and July 14, 2014. It is clear that the trial court is aware of the time-credit complaint because the trial court ruled on the July 14, 2014 motion in part by addressing the deadly-weapon claim. Cf. In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding) (trial court not required to rule on motion not called to its attention).
Accordingly, we conditionally grant the writ of mandamus in part. We order the trial court to rule on relator's February 20, 2012 and July 14, 2014 motions for judgment nunc pro tunc to the extent that they raise complaints concerning the calculation of relator's pre-sentence time credits. The writ will issue only if the trial court fails to comply with this Court's order. 151478F.P05
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE