                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-15-00247-CR
                           ____________________

                          IN RE JAMES WILLIAMS

_______________________________________________________            ______________

                               Original Proceeding
________________________________________________________            _____________

                          MEMORANDUM OPINION

      In his petition asking that we issue a writ of mandamus, James Williams

requests that we issue a writ compelling the judge of the Criminal District Court of

Jefferson County, Texas to rule on a motion that he filed in that court, requesting

that court to exercise its discretion to consider and grant his request for shock

probation. See Tex. Code Crim. Proc. Ann. art. 42.12 § 6 (West Supp. 2014).1

Because the trial court no longer had jurisdiction over Williams’s case when he

filed his motion, we deny his writ of mandamus.




      1
      Because any amendments to article 42.12 do not impact our decision in this
proceeding, we cite to the current version of the Texas Code of Criminal
Procedure.
                                         1
        Williams filed his motion for shock probation after we resolved the appeal in

his criminal case. See Williams v. State, No. 09-13-00489-CR, 2014 Tex. App.

LEXIS 11597 (Tex. App.—Beaumont Oct. 22, 2014, no pet.) (mem. op.). In that

appeal, we modified the final judgment by deleting the trial court’s restitution

award because an award of restitution was not orally pronounced as part of the

judgment at sentencing, but we affirmed Williams’s aggravated robbery

conviction. According to the clerk’s record in that case, 2 Williams’s sentence was

imposed and executed on October 4, 2013. 3 The record Williams filed with his

petition in this case shows that he filed his request for shock probation on April 9,

2015.

        We note our jurisdiction over mandamus proceedings involving complaints

of a trial court’s failure or refusal to hear motions. See State ex rel. Hill v. Court of

Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig.

proceeding); In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig.

proceeding); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003,

orig. proceeding). Although we have jurisdiction over Williams’s petition, the trial

court, given Williams’s delay in filing his motion after the trial court acted to

        2
        We may take judicial notice of matters contained within other appellate
cases. See Tex. R. Evid. 201.
        3
       A defendant’s sentence is executed when the defendant is actually
incarcerated. See Bailey v. State, 160 S.W.3d 11, 14 n.2 (Tex. Crim. App. 2004).
                                           2
execute his sentence, did not have jurisdiction to act on his motion. Section 6 of

article 42.12 of the Texas Code of Criminal Procedure extends a trial court’s

jurisdiction for 180 days after a judgment is executed to allow a trial court to act on

a motion seeking shock probation. See Tex. Code Crim. Proc. Ann. art. 42.12 §

6(a); Bailey, 160 S.W.3d 11, 14 & n.3 (Tex. Crim. App. 2004) (“[A] trial court

loses jurisdiction over the case 180 days after sentencing under Article 42.12 §

6(a)[.]”). In Williams’s case, the trial court lost jurisdiction over any requests for

shock probation in April 2014, which is approximately a year before he filed his

motion.

      Because Williams filed his motion over a year after the trial court lost

jurisdiction over his request for shock probation, the trial court lacked jurisdiction

to consider his motion. See id. Accordingly, the trial court was under no ministerial

duty to act on the motion that Williams filed. See State ex rel. Hill, 34 S.W.3d at

927. We deny Williams’s petition for writ of mandamus.

      PETITION DENIED.

                                                            PER CURIAM

Submitted on July 14, 2015
Opinion Delivered July 15, 2015
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.


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