In Re: Steven Don Evans--Appeal from of County

Criminal Case Template COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-03-00411-CR)

IN RE: STEVEN DON EVANS,

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AN ORIGINAL PROCEEDING)

Relator.

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IN MANDAMUS)
O P I N I O N

Steven Don Evans seeks a writ of mandamus to compel the trial judge to rule on his motion for judgment nunc pro tunc. Evans claims that when the trial judge revoked his community supervision, she did not give him credit for time spent in jail. He therefore filed a motion for judgment nunc pro tunc, requesting the judge to correct this error. He asserts that the judge has failed to rule on this motion. Evans argues that the judge's failure to rule has prevented him from appealing her ruling.

We first note that Evans does not have a right to appeal a trial judge's denial of a motion for judgment nunc pro tunc based on the failure to award jail-time credit. Sanchez v. State, 112 S.W.3d 311 (Tex.App.--Corpus Christi, no pet. h.); Everett v. State, 82 S.W.3d 735, 735 (Tex.App.--Waco 2002, pet. dism'd). Therefore, the judge's purported failure to rule has not deprived Evans of any appellate rights. Moreover, this court has authority to issue a writ of mandamus in a criminal law matter only if two conditions are met: (1) there is no adequate remedy at law; and (2) the act sought to be compelled is ministerial. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991). Evans has an adequate remedy at law; he may seek relief through a petition for writ of habeas corpus. See id. (stating that a writ of habeas corpus is an adequate remedy at law);Ex parte Quinby, 928 S.W.2d 565, 566 (Tex.Crim.App. 1996)(granting habeas relief where petitioner had not received proper credits); see also Tex.Code Crim.Proc.Ann. art. 11.07 (Vernon Supp. 2003)(setting forth the procedure to obtain habeas relief).

Accordingly, we deny the petition for writ of mandamus.

 

October 2, 2003

ANN CRAWFORD McCLURE, Justice

 

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

 

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