                                       NO. 07-11-0177-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                             PANEL A

                                   AUGUST 15, 2011
                            ______________________________


                       IN RE JOHANSON LEE WATSON, RELATOR

                          _________________________________

             ORIGINAL PROCEEDING ARISING FROM PROCEEDINGS
          BEFORE THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
        NOS. 9479 & 9480; HONORABLE DAN MIKE BIRD JUDGE PRESIDING1
                       _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                  MEMORANDUM OPINION


       By this original proceeding, Relator, Johanson Lee Watson, an inmate

proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the

Honorable Dan Mike Bird, to hold a hearing on his Motion for Leave for Judgment Nunc

Pro Tunc. For the reasons expressed herein, we deny the requested relief.


                                          Background


       In 1997, Relator was indicted for sexual assault of a child in cause number 9479

and for burglary of a habitation in cause number 9480. The charges were enhanced
1
 Judge Bird was the District Attorney for Wilbarger County when Relator was charged with the offenses
alleged in Cause Nos. 9479 and 9480 and he voluntarily recused himself from proceedings related to
those cause numbers.
with a prior burglary from 1987. In exchange for dismissal of the burglary of a habitation

charge,2 Relator pleaded guilty to the sexual assault charge and was sentenced to

twenty years confinement. No direct appeal from that conviction was filed.


       At the sentencing hearing held on August 8, 1997, for the sexual assault

conviction, the Honorable Tom Neely opened the proceedings by announcing "[t]his is

Cause Number 9480, the State of Texas versus Johanson Lee Watson, also known as

Johanson 'Joe-Boy' Watson."           The hearing proceeded and the trial court ruled as

follows:


       the Court having found you guilty of the offense of sexual assault of a child
       [cause number 9479] as alleged in the indictment, having found the
       enhancement paragraph to be true, the Court assesses your punishment
       at 20 years . . . .


       Relator filed a Motion for Leave for Judgment Nunc Pro Tunc in the trial court on

January 18, 2011, arguing that the oral pronouncement in cause number 9480 from the

sentencing hearing in 1997 conflicted with the trial court's written judgment in cause

number 9479. He maintains he was sentenced to prison in cause number 9480, which

was dismissed in 1998.3 Relator alleges that on February 7, 2011, he corresponded

with the Wilbarger County District Clerk requesting a disposition on his motion.


       On April 26, 2011, Relator filed a Petition for Writ of Mandamus in this Court

seeking to compel the trial court to rule on his pending motion. This Court requested a



2
The burglary of a habitation charge was dismissed by order dated July 21, 1998.
3
 The written judgment and sentence in the sexual assault of a child case correctly reflects "Cause No.
9479."

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response from Respondent. No response was filed; however, the trial court scheduled

a hearing to address Relator's motion.


         On June 10, 2011, a hearing was held. The Honorable Stuart Messer presided

by assignment. See Tex. Gov't Code Ann. § 75.002(a)(3) (West 2005). Appellant and

his appointed counsel were present. After a brief hearing, the trial court ruled, "the plea

of guilty was obviously in 9479; the evidence was taken on the issue of punishment in

9479. I am not granting that nunc pro tunc . . . ." The trial court's denial of Relator's

motion was reduced to writing and filed with the trial court clerk on June 23, 2011.


                            Mandamus Standard of Review


         Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone

Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "Mandamus issues only

to correct a clear abuse of discretion or the violation of a duty imposed by law when

there is no other adequate remedy by law.@ Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d

916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to mandamus relief, a

relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for

performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.

1979).


                                       Discussion


         Relator now has a ruling on the motion that was pending in the trial court. Any

dissatisfaction with the ruling is not the proper subject of a mandamus proceeding but


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may be remedied by ordinary appeal. See In re Washington, No. 09-07-00246-CV,

2007 Tex. App. LEXIS 6449, at *2 (Tex.App.--Beaumont Aug. 16, 2007, orig.

proceeding). Consequently, his request for relief is rendered moot and the petition for

writ of mandamus is denied.



                                               Patrick A. Pirtle
                                                   Justice




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