

                NO.
12-07-00360-CR
 
IN THE COURT OF APPEALS
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
 
§          
 
IN RE: MARCUS CARDELL
RUSH,         §          ORIGINAL PROCEEDING
RELATOR
§          
 


















 
 

MEMORANDUM OPINION
            Marcus Rush
was convicted of sexual assault of a child, and the trial court imposed
sentence on January 29, 2004.  In this
original proceeding, Rush alleges he was not given proper credit for his presentence
jail time and that he filed a motion requesting a nunc pro tunc judgment, which
the trial court denied.  He seeks a writ
of mandamus compelling the trial court to grant him proper jail time credit.
            When a trial
court does not respond to a motion for a nunc pro tunc judgment alleging
incorrect jail time credit, we may grant a writ of mandamus requiring the trial
court to rule on the motion.  Ex
parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App.2004).  In cases such as this, when the trial court
has ruled on the motion and denied it, filing an application for writ of habeas
corpus in the court of criminal appeals, and not mandamus, is the appropriate
avenue for relief.  See Tex. Code Crim. Proc. Ann. art. 11.07
(Vernon 2005) (establishes procedures for postconviction application for writ
of habeas corpus in noncapital felony cases); Ex parte Deeringer,
210 S.W.3d 616, 617-18 (Tex. Crim. App.2006). 
Accordingly, we deny Rush’s petition for writ of mandamus.
 
                                                                                                     BRIAN HOYLE    
                                                                                                               Justice
Opinion delivered October 11, 2007.
Panel consisted of Worthen, C.J.,
Griffith, J., and Hoyle, J.
 
 
 
(DO NOT PUBLISH)

