Opinion
NO. 12-11-00286-CR
01-31-2012
In re: THOMAS REX KENNEDY, III, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
In this original mandamus proceeding, Relator Thomas Rex Kennedy III requests an order directing the trial court to grant his motion for a nunc pro tunc order to correctly credit him with presentence time served.
The trial court is required to grant a defendant presentence jail time credit when sentence is pronounced. TEX. CODE CRIM. PROC. ANN. art. 42.03 §2(a) (West Supp. 2011). When a defendant has been denied credit for jail time to which he is entitled, the preferred practice is for the trial court to enter a nunc pro tunc order authorizing credit for the appropriate time. Ex parte Forooghi, 185 S.W.3d 498, 499 (Tex. Crim. App. 2006 (Johnson, J., concurring); Ex parte Ybarra, 149 S.W.3d 147, 147 (Tex. Crim. App. 2004). If the request is denied, the defendant should then file a petition for writ of mandamus to the appropriate court of appeals. Ex parte Ybarra, 149 S.W.3d at 147.
Here, Relator has attached a file-marked copy of his request for a nunc pro tunc order authorizing credit for 128 days. The copy includes a handwritten notation, made before the original was photocopied, that "[n]o action [was] taken by court 7-1-11." Even if we construe this notation as a denial of the motion, Relator has not shown that he is entitled to relief because the record does not include any documentation verifying the dates and events alleged to be the basis of Relator's time credit claim. See TEX. R. APP. P. 52.7(a)(1) (requiring certified or sworn copy of every document material to relator's claim for relief and filed in any underlying proceeding). A relator must furnish a record sufficient to support his claim for mandamus relief. See id. Since Relator has not furnished such a record, we cannot conclude that he is entitled to mandamus relief. Accordingly, we deny Relator's petition for writ of mandamus.
JAMES T. WORTHEN
Chief Justice
Opinion delivered January 31, 2012. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
NO. 12-11-00286-CR
THOMAS REX KENNEDY, III, Relator
v.
HON. DWIGHT L. PHIFER, Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by THOMAS REX KENNEDY, III, who is the relator in Cause No. 16685, pending on the docket of the 2nd Judicial District Court of Cherokee County, Texas. Said petition for writ of mandamus having been filed herein on September 21, 2011, and the same having been duly considered, because it is the opinion of this Court that writ of mandamus should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby DENIED.
James T. Worthen, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.