Petition for Writ of Mandamus Denied and Memorandum Opinion filed
October 9, 2018.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-18-00831-CR
                                NO. 14-18-00832-CR



                    IN RE TODD W. ALTSCHUL, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                             23rd District Court
                           Brazoria County, Texas
                    Trial Court Cause Nos. 26672 & 26673

                        MEMORANDUM OPINION

      On September 21, 2018, relator, Todd W. Altschul, filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017);
see also Tex. R. App. P. 52. In his petition, relator asks this court to compel the
Honorable Ben Hardin, presiding judge of the 23rd District Court of Brazoria
County, to rule on relator’s motion for judgment nunc pro tunc requesting appeal
time credit on his sentences. We deny relator’s petition.

      With certain exceptions not in play in this proceeding, to be entitled to
mandamus relief, a relator must show that he has no adequate remedy at law to
redress his alleged harm, and what he seeks to compel is a ministerial act, not
involving discretionary or judicial decision. 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). Consideration of a request or motion that is properly filed and
before the court is a ministerial act. State ex. rel. Curry v. Gray, 726 S.W.2d 125,
128 (Tex. Crim. App. 1987) (orig. proceeding). A relator must establish the trial
court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion;
and (3) failed to do so. In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston
[14th Dist.] 2017, orig. proceeding).

      On July 28, 1994, relator was convicted of aggravated assault and possession
of a deadly weapon in a penal institution. At the time he was convicted, relator was
serving a 15-year sentence for a prior conviction. The trial court sentenced realtor
to 20 years’ imprisonment for the two offenses with the sentences to run consecutive
to the earlier, 15-year sentence.

      On October 23, 2013, relator filed a notice of appeal in this court challenging
the trial court’s order denying relator’s motion for judgment nunc pro tunc. Relator
later asked this court to construe his notice of appeal as a petition for writ of
mandamus. Relator argued the trial court abused its discretion in denying his motion
for judgment nunc pro tunc to receive appeal time credit. This court granted relator’s
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motion to construe his filing as a petition for mandamus, but denied the requested
mandamus relief.

      In both relator’s 2013 motion and the motion he filed underlying this petition
for a writ of mandamus relator requested the trial court to enter a judgment nunc pro
tunc giving him appeal time credit. The trial court denied the 2013 motion and this
court determined a writ of mandamus was not warranted for that denial. In re
Altschul, Nos. 14-13-01001-CR, 14-13-01003-CR, 2014 WL 2158167, at *2 (Tex.
App.—Houston [14th Dist.] May 22, 2014, orig. proceeding) (mem. op.). In this
case, the trial court has not ruled on the motion and we are asked to compel the trial
court to rule on the same motion it denied in 2013. Relator has not asserted any
change in circumstances that would warrant a request to revisit the issue.

      Relator is not entitled to a writ of mandamus requiring the trial court to
repeatedly rule on the same motion. See In re Birdwell, 393 S.W.3d 886, 893 (Tex.
App.—Waco 2012, orig. proceeding); In re Bannister, 216 S.W.3d 555, 556 (Tex.
App.—Waco 2007, orig. proceeding) (Gray, C.J. concurring). Further, this court
explained in its previous opinion regarding this matter why relator is not entitled to
mandamus relief on his motion for judgment nunc pro tunc to receive appeal time
credit on his sentences. See In re Altschul, 2014 WL 2158167 at *1.

      Accordingly, we deny relator’s petition for writ of mandamus.

                                       PER CURIAM

Panel consists of Chief Justice Frost and Justices Boyce and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
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