

                NO.
12-07-00150-CR
 
IN THE COURT OF APPEALS
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
 
 
§          
 
IN RE: ROBERT WAYNE
OLVERA,        §          ORIGINAL PROCEEDING
RELATOR
§          
 
 

MEMORANDUM OPINION
            Robert Wayne
Olvera pleaded guilty to felony driving while intoxicated, and the State
recommended a sentence of imprisonment for five years.  The trial court assessed the recommended
punishment and gave Olvera 215 days credit for his presentence jail time.  In this original proceeding, Olvera seeks a
writ of mandamus alleging that the trial court miscalculated his credit for
presentence jail time and he is entitled to an additional 105 days of credit.  Prior to filing his mandamus petition, Olvera
moved for a nunc pro tunc judgment, which the trial court denied by written
order on June 6, 2006.  See Ex
parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004) (appropriate
remedy where jail time credit is allegedly incorrect is to present the issue to
the trial court by nunc pro tunc motion). 

            When a trial
court does not respond to a motion for a nunc pro tunc judgment alleging
incorrect jail time credit, we may grant a writ of mandamus requiring the trial
court to rule on the motion.  Id.
at 149.  In cases such as this, when the
trial court has ruled on the nunc pro tunc motion and denied it, filing an
application for writ of habeas corpus in the court of criminal appeals, and not
mandamus, is the appropriate avenue for relief. 
See Tex. Code Crim. Proc.
art. 11.07 (Vernon 2005) (establishes procedures for postconviction application
for writ of habeas corpus in noncapital felony cases); Ex parte Deeringer,
210 S.W.3d 616, 617-18 (Tex Crim. App. 2006) (court of criminal appeals will
entertain claim of denial of presentence jail time credit brought pursuant to
article 11.07 after applicant has filed a motion for judgment nunc pro tunc in
convicting court and has sought mandamus relief from court of appeals upon
trial court’s failure to rule on motion). 
Accordingly, we deny Olvera’s petition for writ of mandamus.
Opinion delivered April 25,
2007.
Panel consisted of Worthen, C.J., Griffith, J., and
Hoyle, J.
 
 
 
                
                                                                                                     BRIAN HOYLE    
                                                                                                               Justice
 
 
Opinion delivered April 25,
2007.
Panel consisted of Worthen, C.J., Griffith, J., and
Hoyle, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
(DO NOT PUBLISH)
 
 
 
 
 
 
 
 
 
 
 
 
 
 

