

NO. 07-10-00373-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

OCTOBER
15, 2010
 

 
IN RE RODDY DEAN PIPPIN, RELATOR

 

 
 
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
 
 
MEMORANDUM OPINION
 
Appearing pro se, Relator Roddy
Dean Pippin has filed a petition for writ of mandamus complaining of alleged
sentencing errors in judgments dated December 30, 2004.  He asks us to order respondent, the Honorable
Stuart Messer “judge of the 46th Judicial District Court,” Hardeman County, to
credit his sentences in three cases with pre-sentence jail time.  We will deny the petition.
            A
relator seeking relief by mandamus must show that the
trial court clearly abused its discretion, and the relator
has no adequate remedy by appeal.  In re Sw. Bell Tel. Co., 226 S.W.3d 400,
403 (Tex. 2007) (orig. proceeding) (citing In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding)).  Mandamus will issue to
control the conduct of a trial court only when “the duty to do the act
commanded is clear and definite and involves the exercise of no
discretion--that is, when the act is ministerial.” Turner v. Pruitt, 161 Tex. 532, 534, 342
S.W.2d 422, 423 (1961).  Before
mandamus relief may issue, the relator must establish
that the trial court 1) had a legal duty to perform a non-discretionary act, 2)
was asked to perform the act, and 3) failed or refused to do so.  O’Connor v. First
Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo 2001, orig. proceeding).
We are unable to grant relator the requested mandamus relief for several
reasons.  
We take judicial notice of the fact
that Judge Messer is the presiding judge of the 100th Judicial District Court,
which does not include Hardeman County. 
Nor did Judge Messer preside over relator’s
cases in 2004.  Pippin v. State, 271 S.W.3d 861 (Tex.App.--Amarillo 2008, no pet.).  But without documentation relator
asserts Judge Messer now presides over the 46th district court by
assignment.  Besides Judge Messer, relator adds that three other judges presided over his case
in the trial court.    Mandamus is
directed specifically to an individual judicial officer.  It is not directed to a judge simply because
he or she occupies the office formerly held by the judge of whom a relator complains.  See In
re Roseland Oil & Gas, Inc., 68 S.W.3d 784, 786 (Tex.App.--Eastland
2001, orig. proceeding) (“[m]andamus is personal to
the judge”).  In other words, “[a] writ
of mandamus will not lie against a successor judge in the absence of a refusal
by him to grant the relief Relator seeks.”  State
v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (orig. proceeding).  
Even were
Judge Messer the proper respondent in this original proceeding, relator would not be entitled to the relief requested.  Relator does not
allege he is presently confined illegally because he would have discharged his
sentences had he received correct time credit. Claims for pre-sentence jail
time credit like that asserted by relator are
ordinarily raised by a motion for judgment nunc pro tunc filed in the convicting
court.  Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex.Crim.App. 2004). 
Should the trial court deny the motion for judgment nunc pro tunc or fail or refuse to respond to
the motion, the movant may petition the proper court
of appeals for a writ of mandamus.  Id. 
Here there is no record or other proper indication that relator filed a motion for judgment nunc pro tunc which the convicting court
denied or failed or refused to rule on following a proper request.
Further, relator’s
petition does not meet several formal requirements of Rule 52 of the Rules of
Appellate Procedure.  Tex. R. App. P.
52.  In particular, it omits the
certification required by Rule 52.3(j) and does not contain the appendix
required by Rule 52.3(k).  Relator also did not file a record as required by Rule
52.7.
            Based
on the foregoing discussion, we deny relator’s
petition for writ of mandamus.
 
                                                                                                James
T. Campbell
                                                                                                            Justice
 
            




 

