                                  NO. 12-13-00266-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

IN RE:                                           §

JOHN MICHAEL DAISY,                              §      ORIGINAL PROCEEDING

RELATOR                                          §

                                  MEMORANDUM OPINION
        John Michael Daisy, Relator, filed a petition for a writ of mandamus in this court. In the
petition, Relator contends that Respondent, the Honorable Kerry L. Russell, Presiding Judge of
the Seventh Judicial District Court of Smith County, Texas, denied his motion for judgment nunc
pro tunc in violation of his ministerial duty to grant the motion. Relator also alleges that he is
without an adequate remedy at law.        He requests that this court issue an order directing
Respondent to issue a judgment nunc pro tunc correcting his credit for time served while
awaiting trial for a 1985 offense that occurred in Smith County. We deny the petition.


                                         BACKGROUND
        On February 12, 1985, Relator committed an aggravated robbery in Smith County. On
February 13, 1985, Relator committed an aggravated robbery in Henderson County, Texas.
Relator was arrested on February 13, 1985, for the Smith County robbery, and was confined in
jail.
        On March 7, 1985, Relator was sent from Smith County to Henderson County to await
trial for the Henderson County aggravated robbery. He was convicted of that offense, and on
April 23, 1985, the Henderson County trial court signed a judgment stating that Relator’s
sentence was twenty-five years of imprisonment. Relator was relinquished to the custody of the
Texas Department of Criminal Justice. However, he was returned to Henderson County for a
new trial on the offense. Relator pleaded guilty, the offense was reduced to robbery, and Relator
was sentenced to twenty years of imprisonment on May 6, 1985. The trial court signed a new
judgment and gave Relator credit for time served from the date he was arrested, February 13,
1985.
        In his petition, Relator claims that Smith County had placed a “hold” on him for the
Smith County offense, which resulted in his being sent to Smith County on June 7, 1985, on a
bench warrant. Relator contends that, on August 15, 1985, the trial court sentenced him to
twenty years of imprisonment for the Smith County offense. He states that the Smith County
trial court granted him credit for ninety days as time served, which would have been from May
17, 1985, to the date of sentencing. However, Relator argues further that he received credit from
February 14, 1985, through March 7, 1985, and separately, from June 7, 1985, through August
15, 1985. Relator states in his petition that because of the Smith County “hold,” he remained in
detention from February 13, 1985, through August 15, 1985, and was entitled to, but was denied,
for that time.
        Relator filed a motion for judgment nunc pro tunc in the Smith County trial court,
alleging that the trial court’s judgment should be corrected to accurately reflect the credit he is
owed for time served awaiting trial on the Smith County offense.           The trial court denied
Relator’s motion, and this original proceeding followed.


                                   CREDIT FOR TIME SERVED
        Relator contends the trial court abused its discretion when it denied his motion for
judgment nunc pro tunc, because the judgment for the Smith County offense erroneously reflects
that he was erroneously denied credit for time served while awaiting trial for that offense in
1985.
Standard of Review
        To be entitled to mandamus relief with respect to a criminal law matter, a relator must
show that he has no adequate remedy at law to redress his alleged harm, and that what he seeks
to compel is a ministerial act. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). “If there is any
discretion or judicial determination attendant to the act, it is not ministerial in nature. Nor is a
ministerial act implicated if the trial court must weigh conflicting claims or collateral matters




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which require legal resolution.” State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34
S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).
        The relief sought must be “clear and indisputable” such that its merits are “beyond
dispute.” Id. at 927–28. It is relator’s burden to provide this court with a sufficient record to
establish the right to mandamus relief. See TEX. R. APP. P. 52.3(k), 52.7(a); Young, 236 S.W.3d
at 210; see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).
Applicable Law
        “The purpose of a nunc pro tunc order is to correctly reflect from the records of the court
a judgment actually made by it, but which for some reason was not entered of record at the
proper time.” Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980). An error in the
entry of judgment is clerical if it did not arise as the result of judicial reasoning. Id.
        The Texas Court of Criminal Appeals has held that a motion for judgment nunc pro tunc
in the trial court, or writ of mandamus in the appellate court if such a motion is denied, will
provide a remedy only if the right to pretrial jail time credit is “absolutely indisputable under the
terms of article 42.03, section 2(a)(1).” In re Brown, 343 S.W.3d 803, 804 (Tex. Crim. App.
2011) (orig. proceeding) (per curiam); see also Hill, 34 S.W.3d at 927–28 (“The relief sought
must be clear and indisputable such that its merits are beyond dispute.”) (internal quotations
omitted).
Discussion
        The record contains the two judgments for the Henderson County offense. It does not
include the Smith County judgment or any documentation related to that offense. Without the
Smith County judgment, we do not know its terms and cannot confirm how the trial court
granted credit for time served while Relator was awaiting trial on that offense.
        Relator attached three reports from the Texas Department of Criminal Justice showing
Relator’s sentence date and identifying how many years and days of the sentence he has served.
We are unable to determine the offense to which each report corresponds. One of the reports has
an illegible sentence start date. The remaining two reports show a sentence start date of May 17,
1985. Relator alleges in his petition that he received a letter from the State Counsel of Offenders
that said “[o]n May 5, 2011 an audit of your records was performed and an error was discovered
and corrected. Your judgment and sentence [for the Smith County offense] awarded you back
jail time of ninety days which gives you a sentence begin date of May 17, 1985. Your time is



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correct.” However, Relator did not include this letter in the record, and therefore we do not
consider it.
         It is Relator’s burden to bring a record showing he is entitled to mandamus relief. See
TEX. R. APP. P. 52.3(k), 52.7(a); In re Brown, 343 S.W.3d 803 at 804; Young, 236 S.W.3d at
210. Given that critical documents are missing from the record, Relator failed to meet his burden
to show that it is absolutely indisputable that he was denied his right to jail time credit. In re
Brown, 343 S.W.3d at 804; Hill, 34 S.W.3d at 927–28. Thus, Relator has not shown that the
trial court failed to perform a ministerial duty, and consequently, Relator is not entitled to
mandamus relief.
         Furthermore, to the extent Relator complains of a judicial, rather than a clerical, error in
the judgment of conviction, the trial court did not abuse its discretion in denying the motion for
judgment nunc pro tunc. This is because judicial error is not susceptible to correction by nunc
pro tunc. See State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994).


                                                   CONCLUSION
         Relator has failed to satisfy his burden to demonstrate entitlement to mandamus relief.
Accordingly, we deny Relator’s petition for writ of mandamus.
                                                                  SAM GRIFFITH
                                                                     Justice

Opinion delivered August 29, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          AUGUST 29, 2014


                                         NO. 12-13-00266-CR


                                     JOHN MICHAEL DAISY,
                                             Relator
                                               V.
                                     HON. KERRY RUSSELL,
                                           Respondent


                                 Appeal from the 7th District Court
                          of Smith County, Texas (Tr.Ct.No. 7-85-105)

                      ON THIS DAY came to be heard the petition for writ of mandamus filed
by JOHN MICHAEL DAISY, who is the defendant in Cause No. 7-85-105, pending on the
docket of the 7th Judicial District Court of Smith County, Texas. Said petition for writ of
mandamus having been filed herein on August 26, 2013, and the same having been duly
considered, because it is the opinion of this Court that a 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.
                   Sam Griffith, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
