      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00090-CV



                                  In re Juan DeLaCruz Bustillo


                      ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                             MEMORANDUM OPINION


               Relator Juan De La Cruz Bustillo, an inmate, has filed a pro se petition for writ of

mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221 (West 2011). In the petition, Bustillo

asks this Court to compel the presiding judge of the 331st Judicial District Court of Travis County

to answer his request for a judgment nunc pro tunc modifying his judgment of conviction to reflect

purportedly missing presentence jail-time credit. We will deny the petition.

               Under the code of criminal procedure, a defendant is entitled to credit on his sentence

for any time he spent in jail from the time of his arrest and confinement until his sentence. Tex.

Code Crim. Proc. Ann. art. 42.03 § 2(a) (West 2011). The trial court is required to grant such

presentence jail-time credit when the sentence is pronounced. Ex parte Ybarra, 149 S.W.3d 147,

148 (Tex. Crim. App. 2004). If the court fails to do so, the defendant may file a motion with the

convicting court requesting that it correct the error by entering a judgment nunc pro tunc. Id. Because

the law requires the trial court to award credit for presentence time served, the court’s failure to do

so violates a ministerial duty. In re Daisy, 156 S.W.3d 922, 924 (Tex. App.—Dallas 2005, orig.

proceeding). Consequently, a defendant is entitled to mandamus relief upon denial of a motion for
judgment nunc pro tunc when he can show indisputably that he is entitled to the requested jail-time

credit. See In re Brown, 343 S.W.3d 803, 804 (Tex. Crim. App. 2011).

               A defendant may also seek mandamus relief if the trial court fails to respond to a

motion for judgment nunc pro tunc. Ex parte Ybarra, 149 S.W.3d at 148-49. However, to obtain

mandamus relief compelling a trial court to rule on a motion, a relator must establish: (1) a properly

filed motion has been pending for an unreasonable time, and (2) the matter was brought to the

attention of the trial court and the trial court failed or refused to rule on the motion. In re Layton,

257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding). Further, it is the relator’s

burden to properly request and show entitlement to mandamus relief. Walker v. Packer, 827 S.W.2d

833, 837 (Tex. 1992). In this regard, the relator must provide the reviewing court with a record

sufficient to establish his right to mandamus relief. In re Mendoza, 131 S.W.3d 167, 168 (Tex.

App.—San Antonio 2004, orig. proceeding); see Tex. R. App. P. 52.7(a)(1) (requiring that relator

file certified or sworn copy of every document material to claim for relief).

               Here, Bustillo complains that the trial court has refused to rule on his motion for

judgment nunc pro tunc. However, he has not provided this Court with any record concerning the

motion that is the basis of his request for relief. For example, he has not provided this Court with

a file-stamped copy of his motion or any other document showing that his motion has been properly

filed. Without this record, we cannot determine whether the motion was properly filed or, if it was,

the date on which it was received by either the clerk’s office or the judge. In addition, Bustillo has

not provided this Court with any record demonstrating that the motion has been brought to the trial

court’s attention or that a ruling was requested. Absent a showing that the trial court is aware of his



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motion for judgment nunc pro tunc, has been asked to rule upon the motion, and refused to do so,

Bustillo cannot establish that he is entitled to mandamus relief. See In re Zepeda, No. 03-12-00214-

CV, 2012 WL 1499603, at *4 (Tex. App.—Austin Apr. 25, 2012, orig. proceeding) (mem. op., not

designated for publication).

                In addition, Bustillo has failed to provide this Court with any record supporting his

contention that he is entitled to jail-time credit of more than one year. Bustillo has not provided this

Court with a copy of the judgment of conviction or any record reflecting how much jail-time credit

he was entitled to, if any, and how much jail-time credit he actually received, if any. Based on the

insufficient record before us, we cannot determine that it is “absolutely indisputable” that Bustillo

is entitled to the jail-time credit that he seeks. See Brown, 343 S.W.3d at 804.

                Because Bustillo has failed to demonstrate his right to relief, the petition for writ of

mandamus is denied without prejudice.



                                                __________________________________________

                                                Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Filed: April 11, 2013




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