                                  NO. 12-13-00009-CR

                      IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

IN RE:                                        §

JODY FORD MCCREARY,                          §               ORIGINAL PROCEEDING

RELATOR                                      §

                                 MEMORANDUM OPINION
                                     PER CURIAM
       Relator Jody Ford McCreary alleges that he was sentenced in absentia in trial court cause
number 007-1110-10 and cannot appeal his conviction to this court until sentence is imposed in
his presence. Accordingly, he requests a writ of mandamus directing the trial court to impose
sentence in his presence in accordance with Texas Code of Criminal Procedure Article 42.03,
Section (a).
       Relator calls our attention to the trial court’s docket sheet as support for his contention
that he was sentenced in absentia. He specifically alleges that the docket sheet does not show
that (1) the court reporter appeared, (2) counsel for the State appeared, (3) the defendant
appeared with counsel, and (4) the trial court pronounced sentence. Although the copy included
in the record is difficult to read, we have determined that it contains a number of stamped
notations dated January 11, 2011, including the following:
       (1) “State and Defendant announced ready and that Defendant [desired] to plead guilty to
the Court and waive Jury Trial as to Guilt and Punishment”;
       (2) “Defendant fully admonished of the consequences of such a plea and advised of the
range of punishment attached to the offense charged, but persisted in pleading guilty”;
       (3) “Defendant pleaded guilty”;
       (4) “Plea of guilty accepted. Evidence presented. Based on evidence, Defendant found
GUILTY as charged in indictment and Court’s findings made and ordered filed”;
         (5) “Pre-Sentence Investigation and Report . . . waived in writing by Defendant”;
         (6) “Punishment assessed at 12 years confinement in Texas Department of Corrections”;
and
         (7) “Defendant sentenced.”
         In a criminal case, a relator is entitled to mandamus relief only if he establishes (1) that
he has no adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re
State ex rel. Weeks, 391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013). The ministerial act
requirement is satisfied if the relator can show a clear right to the relief sought. Id. at 122.
Based upon the foregoing notations, we cannot conclude that Relator has established a clear right
to mandamus relief. Relator’s petition for writ of mandamus is denied.
Opinion delivered April 24, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



                                                           2
                                 COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT

                                           APRIL 24, 2013


                                        NO. 12-13-00009-CR


                                   JODY FORD MCCREARY,
                                            Relator
                                              v.
                                    HON. KERRY RUSSELL,
                                          Respondent




                                     ORIGINAL PROCEEDING


                      ON THIS DAY came to be heard the petition for writ of mandamus filed
by JODY FORD MCCREARY, who is the relator in Cause No.007-1110-10, pending on the
docket of the 7th Judicial District Court of Smith County, Texas. Said petition for writ of
mandamus having been filed herein on January 8, 2013, and the same having been duly
considered, because it is the opinion of this Court that a writ of mandamus should not issue, it is
therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of
mandamus be, and the same is, hereby DENIED.
                      By per curiam opinion.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
