                                       In The

                                Court of Appeals

                     Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-20-00007-CR
                               __________________

                   IN RE JAMES STEVEN KERR
__________________________________________________________________

                           Original Proceeding
            9th District Court of Montgomery County, Texas
                    Trial Cause No. 18-08-10492-CR
__________________________________________________________________

                           MEMORANDUM OPINION

      James Steven Kerr filed a petition for a writ of mandamus to compel the trial

court to rule on Kerr’s motion for a judgment nunc pro tunc. He argues an adequate

time to rule has elapsed without action by the trial court. Relator has failed to show

that the alleged error in the judgment was the result of clerical error rather than

judicial reasoning. Additionally, he has failed to show that the motion has been

before the trial court for an unreasonable length of time.

      To obtain mandamus relief in a criminal case, the relator must show that he

does not have an adequate remedy at law and he seeks to compel a ministerial act


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not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial

Dist. Ct. of Apps., 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

To establish an abuse of discretion by the trial court in failing to rule on a motion,

the relator must establish that the trial court: (1) had a legal duty to perform a

ministerial act, (2) was asked to perform the act, and (3) failed or refused to do so

within a reasonable time. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo

2001, orig. proceeding).

      The purpose of a judgment nunc pro tunc is to correct the record when there

is a discrepancy between the judgment as pronounced and written judgment in the

record. Blanton v. State, 369 S.W.3d 894, 897-98 (Tex. Crim. App. 2012). Because

corrections to the record are limited to clerical errors and are not appropriate for

errors of judicial reasoning, a judgment nunc pro tunc is improper if it alters the

original judgment pronounced in court. Id. at 898.

      The appendix to Kerr’s mandamus petition includes a photocopy of a page

from a judgment that states that Kerr pleaded guilty and on May 23, 2019, he was

sentenced to eight years of confinement for “Aggravated Assault Family Violence –

Threaten with Deadly Weapon” with an affirmative finding of the use of a deadly

weapon, a firearm. The appendix includes a copy of a motion for judgment nunc pro

tunc in which Kerr argued that the deadly weapon finding should be deleted because

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prior to sentencing the complaining witness signed an affidavit of non-prosecution

and he argues she recanted her previous statement regarding Kerr’s use of a rifle. In

his motion, Kerr did not claim that the written judgment fails to reflect what actually

occurred at sentencing. On November 26, 2019, the district clerk acknowledged the

filing of a motion by Kerr. According to Kerr, he requested that his motion for

judgment nunc pro tunc be submitted on December 23, 2019.

      Based on the record now before us, Relator has failed to show that he is

entitled to a judgment nunc pro tunc. Relator has also failed to show that the trial

court has refused to rule on Relator’s motion for a judgment nunc pro tunc within a

reasonable time. Such a showing is required to obtain mandamus relief. See Young,

236 S.W.3d at 210; Chavez, 62 S.W.3d at 228. Accordingly, we deny the petition

for a writ of mandamus. See Tex. R. App. P. 52.8(a).

      PETITION DENIED.


                                                            PER CURIAM

Submitted on January 21, 2020
Opinion Delivered January 22, 2020
Do Not Publish

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




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