                                          IN THE
                                  TENTH COURT OF APPEALS



                                           No. 10-09-00125-CR

                           IN RE CHRISTOPHER LYNN COWAN


                                          Original Proceeding


                                   MEMORANDUM OPINION

           Christopher Lynn Cowan seeks by mandamus to compel the trial court to grant

his motion for judgment nunc pro tunc for pre-sentence jail time credit. The petition is

denied.

           Cowan’s petition for writ of mandamus was filed in this Court on April 23, 2009.

However, Cowan did not provide a proper proof of service.1 See TEX. R. APP. P. 9.5.

Further, Cowan attaches documents which he swears are true and correct. But Cowan’s

oath does not conform to the unsworn declaration by inmates provision in the Texas

Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 132.003

(Vernon 2005). Traditionally, we would notify Cowan of these deficiencies and allow

him the opportunity to correct the problems. However, because we deny the petition

on the merits, we use Rule 2 to suspend the operation of the service and unsworn

1   Cowan served the District Judge but did not serve the real party in interest, the State.
declaration requirements and proceed to a disposition in this proceeding. See TEX. R.

APP. P. 2.

       Cowan attached copies of documents to his petition that were allegedly filed

with the trial court. Those documents indicate that Cowan filed a motion nunc pro tunc

with the trial court asking for pre-sentence jail time credit. The copy of the motion is

signed and dated January 22, 2009. Cowan then allegedly filed a “Motion to Take

Matter Under Advisement” which was signed and dated March 14, 2009.                           In that

document, Cowan gave the trial court seven days to rule on his motion nunc pro tunc.

Cowan now requests this Court “issue this Writ and require the trial court to enter

credits properly.” We cannot compel the trial court to rule on Cowan’s motion in a

certain or particular way. See State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim.

App. 1987).

       Accordingly, Cowan’s petition is denied. Cowan’s “Motion for Leave to File” is

dismissed as moot.2



                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Petition Denied
Motion dismissed
Opinion delivered and filed May 20, 2009
[OT06]




2 The Rules of Appellate Procedure were amended in 1997 to eliminate the need for a motion for leave to
file the petition. See TEX. R. APP. P. 52, Notes and Comments.

In re Cowan                                                                                     Page 2
