In Re: Eric L. Shaddox--Appeal from of County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00117-CV
______________________________
IN RE: ERIC L. SHADDOX
Original Mandamus Proceeding
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Eric L. Shaddox has filed a pro se petition for writ of mandamus, which appears to name the Honorable Lauren Parish, presiding judge of the 115th Judicial District Court of Upshur County, Texas as respondent. (1) Shaddox complains there is an error in the calculation of his jail-time credits and the release date. Because Shaddox has not shown that he made any request of the trial court to perform a nondiscretionary act and has not provided a sufficient record, we deny the petition for writ of mandamus.

To be entitled to mandamus relief in a criminal matter, the relator must establish that (1) the act sought to be compelled is ministerial, and (2) there is no adequate remedy at law. Dickens v. Court of Appeals for the Second Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 548 (Tex. Crim. App. 1987). In his petition, Shaddox merely states, "I am currently seeking relief for denial of flat time credits on my sentence." The petition fails to specify what act or omission by the trial court is being complained of. As such, Shaddox has failed to show the act sought to be compelled is ministerial.

We note Shaddox complains that he has not received credit for all of the time he served before sentencing. In addition, Shaddox alleges he has filed "a Nunc Pro Tunc with the 115th District Court in Upshur County, but I still haven't heard back." Under certain circumstances, the trial court may have the authority to correct the omission of presentence jail credit through a judgment nunc pro tunc. (2) See Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004) ("The appropriate remedy in this situation is to require Applicant to present the issue to the trial court by way of a nunc pro tunc motion . . . . If the trial court fails to respond, Applicant is first required to seek relief in the Court of Appeals, by way of a petition for a writ of mandamus . . . ."). Shaddox does not complain about the trial court's alleged failure to rule on his motion for judgment nunc pro tunc or request this Court to order the trial court to rule on the alleged motion.

Further, Shaddox's petition fails to include a sufficient record. It is the relator's burden to provide this Court with a sufficient record to establish his or her right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim's Pride Corp., 187 S.W.3d 197 (Tex. App.--Texarkana 2006, orig. proceeding). The petition does not include an appendix containing "a certified or sworn copy of any order complained of, or any other document showing the matter complained of." See Tex. R. App. P. 52.3(d), (j)(1)(A). The petition also does not certify that a copy was served on the respondent. See Tex. R. App. P. 9.5. Shaddox has not provided us with a record that shows he made any request of the trial court to perform a nondiscretionary act. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding).

For the reasons stated, we deny Shaddox's petition for writ of mandamus.

 

Jack Carter

Justice

 

Date Submitted: December 12, 2006

Date Decided: December 13, 2006

 

1. Shaddox titled his petition as follows: "Eric L. Shaddox, TDCJ-ID # 1193942 v. The 115th Judicial District Court of Upshur County, Texas[,] Presiding Judge - Lauren Parish[,] IN HER OFFICIAL CAPACITY." Other than the title, the petition fails to specify who Shaddox is requesting the writ against. The petition merely requests credit for time served before trial. We note this Court does not have jurisdiction to issue a writ of mandamus against the Texas Department of Criminal Justice. See Tex. Gov't Code Ann. 22.221 (Vernon 2004).

2. We note that the granting of credit for jail time has historically been accomplished by post-conviction writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Ex parte Dunn, 976 S.W.2d 208 (Tex. Crim. App. 1998). The courts of appeals have no original habeas corpus jurisdiction in post-conviction criminal matters. Tex. Gov't Code Ann. 22.221; Dodson v. State, 988 S.W.2d 833, 835 (Tex. App.--San Antonio 1999, no pet.).