      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00382-CV



                                  In re Jorge Oracio Benavides


                  ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY



                              MEMORANDUM OPINION


                Relator Jorge Oracio Benavides, an inmate proceeding pro se, has filed a petition for

writ of mandamus, asking this court to compel the 277th District Court of Williamson County to

delete its deadly-weapon findings from Benavides’s 2009 judgments of conviction for the offenses

of engaging in organized criminal activity and aggravated kidnapping. According to Benavides,

during the hearing at which he had pleaded guilty to committing those offenses, the State failed to

prove that he had used or exhibited a deadly weapon. Benavides also asserts that he has no adequate

remedy at law to challenge the deadly-weapon findings because he waived his right to appeal his

convictions when he pleaded guilty, and the Court of Criminal Appeals has denied his application

for writ of habeas corpus.1

                In criminal cases, “mandamus relief is appropriate only when a relator establishes

(1) that he has no adequate remedy at law to redress his alleged harm, and (2) that what he seeks to




       1
           See Tex. Code Crim. Proc. art. 11.07.
compel is a ministerial act, not a discretionary or judicial decision.”2 “The second prerequisite, the

ministerial-act requirement, is satisfied if the relator can show a clear right to the relief sought.”3

“A clear right to relief is shown when the facts and circumstances dictate but one rational decision

under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and

clearly controlling legal principles.”4 “If the relator fails to satisfy either aspect of this two-part test,

then relief should be denied.”5

                  Assuming without deciding that Benavides has established that he has no adequate

remedy at law, we cannot conclude on this record that the district court has a ministerial duty to

delete the deadly-weapon findings from Benavides’s judgments of conviction, for at least two

reasons. First, the record does not reflect that, prior to filing his petition for writ of mandamus with

this Court, Benavides filed a motion with the district court asking it to delete the deadly-weapon

findings from the judgments. A trial court has a ministerial duty to rule on a properly filed motion

within a reasonable time, but that duty is not triggered until after a motion has been filed and brought

to the trial court’s attention.6 In the absence of a properly filed motion, we cannot conclude that any

such duty has been triggered here.


        2
         In re Allen, 462 S.W.3d 47, 49 (Tex. Crim. App. 2015) (citing Bowen v. Carnes,
343 S.W.3d 805, 810 (Tex. Crim. App. 2011)).
        3
            In re Bonilla, 424 S.W.3d 528, 533 (Tex. Crim. App. 2014).
        4
            Id.
        5
        State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.
Crim. App. 2007).
        6
        See id.; Ex parte Ybarra, 149 S.W.3d 147, 148–49 (Tex. Crim. App. 2004); In re Henry,
525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding).

                                                     2
                 Second, even if Benavides had asked the district court to delete the deadly-weapon

findings from the judgments of conviction, we could not conclude on this record that the district

court had a ministerial duty to do so. “A judgment nunc pro tunc is the appropriate avenue to make

a correction when the court’s records do not mirror the judgment that was actually rendered.”7

However, “[t]he corrections must reflect the judgment that was actually rendered but that for some

reason was not properly entered into the record at the time of the judgment.”8 “Corrections to the

record are limited to clerical errors and are not appropriate for errors involving judicial reasoning.”9

Thus, “a nunc pro tunc judgment is improper if it modifies, changes, or alters the original judgment

pronounced in court, or has the effect of making a new order.”10

                 Here, the record shows that at the conclusion of Benavides’s plea hearing, the district

court made an affirmative finding that a deadly weapon had been used during the commission of the

offenses. Thus, it was not a clerical error to include the deadly-weapon findings in the written

judgments of conviction, and, consequently, the district court cannot delete those findings from

the judgments.11


       7
        Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007) (citing Alvarez v. State,
605 S.W.2d 615, 617 (Tex. Crim. App. 1980)); see In re Cherry, 258 S.W.3d 328, 333 (Tex.
App.—Austin 2008, orig. proceeding).
       8
        Blanton v. State, 369 S.W.3d 894, 898 (Tex. Crim. App. 2012) (citing Jones v. State,
795 S.W.2d 199, 200 (Tex. Crim. App. 1990)).
        9
            Id. (citing Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988)).
       10
            Id. (citing Ex parte Dickerson, 702 S.W.2d 657, 658 (Tex. Crim. App. 1986)).
       11
          See Poe, 751 S.W.2d at 876; Fanniel v. State, 73 S.W.3d 557, 559–60 (Tex. App.—Houston
[14th Dist.] 2002, no pet.); Curry v. State, 720 S.W.2d 261, 262–63 (Tex. App.—Austin 1986, pet.
ref’d); see also Guthrie-Nail v. State, 506 S.W.3d 1, 4–7 (Tex. Crim. App. 2015) (discussing

                                                   3
                We cannot conclude on this record that Benavides has a clear right to the relief

sought. Accordingly, the petition for writ of mandamus is denied.12



                                             _________________________________________
                                             Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Bourland

Filed: June 26, 2018




procedural requirements for making deadly-weapon findings following bench trials); In re Malone,
No. 05-14-01458-CV, 2014 Tex. App. LEXIS 12890, at *2–6 (Tex. App.—Dallas Dec. 2, 2014, orig.
proceeding) (characterizing mandamus petition in similar case as impermissible “collateral attack[]
on the judgment rather than complaint[] regarding a clerical error”).
       12
            See Tex. R. App. P. 52.8(a).

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