In re Johnson

Full title: IN RE RONALD DEXTER JOHNSON, Relator

Court: Court of Appeals of Texas, First District, Houston

Date published: Mar 30, 2009

No. 01-09-00158-CR (Tex. App. Mar. 30, 2009)

Opinion

No. 01-09-00158-CR

Opinion issued March 30, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

Original Proceeding on Petition for Writ of Mandamus.

Panel consists of Chief Justice RADACK, and Justices ALCALA and HANKS.

MEMORANDUM OPINION

PER CURIAM.

Relator, Ronald Dexter Johnson, has filed a motion for leave to file a writ of mandamus and a petition for writ of mandamus. The petition requests that this Court compel respondent¹ to enter a nunc pro tunc order awarding him additional pre-trial jail time credit.² We deny the petition for writ of mandamus. First, relator's petition does not meet the requirements of the Texas Rules of Appellate Procedure because it does not certify that a copy was served on respondent. See Tex. R. App. P. 9.5. Moreover, there are three prerequisites for the issuance of a writ of mandamus by an appellate court, namely: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding). Relator has not provided us with a record that establishes that his motion for judgment nunc pro tunc was properly filed, that he requested the respondent to make a ruling on his motion, and that the respondent has failed or refused to rule. Id at 426. The petition for leave to file is denied. See TEX. R. APP. P. 52.1. The petition for writ of mandamus is denied. It is so ORDERED.

1 Relator names as respondent Jeaninne Barr, Judge, 182nd District Court of Harris County, Texas. Relator's petition does not contain a certificate of service for respondent.

2 On May 9, 2008, relator pleaded guilty to the charge of robbery in case number114122 and was sentenced to confinement for three years. No appeal was taken from this conviction. We note that relator's petition does not include a copy of the judgment and sentence for trial court cause number 114122 or other documents reflecting jail time credit awarded at the time of sentencing.