
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-12-00706-CV


In re Frederico Rodriguez




ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY


M E M O R A N D U M   O P I N I O N

		Relator Frederico Rodriguez, an inmate in the Texas Department of Criminal
Justice, filed a pro se petition for writ of mandamus asking this Court to compel the
Honorable Ken Anderson, presiding judge of the 277th Judicial District Court of Williamson
County, to answer his request for a nunc pro tunc judgment modifying his judgment of conviction
to reflect purportedly missing presentence jail-time credit and to transmit an order to the Texas
Department of Criminal Justice reflecting the missing days of credit.  See Tex. Gov't Code Ann.
§ 22.221 (West 2004); Tex. R. App. P. 52; see also Tex. R. App. P. 23.  We deny the petition.
		A trial court is required to grant a defendant presentence jail-time credit when the
sentence is pronounced.  Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (West Supp. 2012); Ex parte
Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004).  Thus, whenever a defendant can show
indisputably that he has been improperly denied jail-time credit for a period of pretrial incarceration,
he is entitled to relief from the convicting court in the form of a judgment nunc pro tunc and, failing
that, by writ of mandamus in the court of appeals.  In re Brown, 343 S.W.3d 803, 805 (Tex. Crim.
App. 2011); Ybarra, 149 S.W.3d at 148.
		However, to obtain mandamus relief for the trial court's refusal to rule on a motion,
a relator must establish:  (1) the motion was properly filed and has been pending for a reasonable
time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. 
In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.--Waco 2008, orig. proceeding); In re Hearn,
137 S.W.3d 681, 685 (Tex. App.--San Antonio 2004, orig. proceeding).  A relator must show
that the trial court received, was aware of, and was asked to rule on the motion.  In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.--Texarkana 2008, orig. proceeding).
		Further, it is relator's burden to properly request and show entitlement to mandamus
relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); In re Davidson, 153 S.W.3d 490, 491
(Tex. App.--Amarillo 2004, orig. proceeding); see Barnes v. State, 832 S.W.2d 424, 426 (Tex.
App.--Houston [1st Dist.] 1992, orig. proceeding) ("Even a pro se applicant for a writ of mandamus
must show himself entitled to the extraordinary relief he seeks.").  In this regard, the relator must
provide the reviewing court with a record sufficient to establish his right to mandamus relief.  See
Walker, 827 S.W.2d at 837; Blakeney, 254 S.W.3d at 661; see also Tex. R. App. P. 52.7(a) (relator
must file with petition "a certified or sworn copy of every document that is material to the relator's
claim for relief and that was filed in any underlying proceeding"), 52.3(k) (specifying required
contents for appendix), 52.7(a) (specifying required contents for record).
		Rodriguez has failed to provide this Court with a file-stamped copy of his motion or
any other documents to show that a properly filed motion for judgment nunc pro tunc is pending
before the trial court. (1)  Consequently, there is no way for us to 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. 
Even if we assume that the motion was properly filed, Rodriguez has not demonstrated that the
motion has been brought to the trial court's attention or that the court is aware of the motion.  See
Hearn, 137 S.W.3d at 685 (simply filing matter with district clerk is not sufficient to impute
knowledge of pending pleading to trial court).  In addition, Rodriguez has failed to provide any
correspondence to the district court requesting a ruling on the motion or any other document that
shows that he brought the motion to the attention of the trial court.  See id. (mere filing of motion
with trial court clerk does not constitute request that trial court rule on motion).  Finally, Rodriguez
has failed to provide anything indicating that the trial court has refused to rule on the motion, or
failed to rule within a reasonable time.  Absent a showing that the trial court is aware of the motion,
has been asked to rule on his request, and refused to do so, Rodriguez has not established entitlement
to the extraordinary relief of a writ of mandamus.  See In re Salazar, No. 03-11-00550-CV,
2011 WL 4507296, at *1 (Tex. App.--Austin Sept. 30, 2011, orig. proceeding) (mem. op., not
designated for publication) (mandamus relief denied because relator failed to provide copy of
motion, any correspondence to district court requesting ruling on motion, or anything indicating
district court refused to rule on motion).
		Furthermore, Rodriguez has failed to provide this Court with any documentation to
support his claim that he is entitled to presentence jail-time credit.  He failed to provide 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.  Consequently, Rodriguez has failed
to provide a sufficient record for us to determine that he is indisputably entitled to the jail-time credit
he seeks.  See In re Garza, No. 03-11-00820-CV, 2012 WL 512678, at *3 (Tex. App.--Austin
Feb. 15, 2012, orig. proceeding) (mem. op., not designated for publication) (mandamus relief
denied because relator failed to provide sufficient record demonstrating indisputable entitlement to
jail-time credit).
		Accordingly, we deny the petition for writ of mandamus.

						__________________________________________
						J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Filed:   November 21, 2012
1.   In support of his petition for writ of mandamus, Rodriguez attached a document entitled
"Motion to Enter Judgment and Sentence Nunc Pro Tunc."  However, this document is not
file-marked by the district clerk.  No other document or record of proceedings is attached to or
furnished in support of the petition.
