In re Robert James Isbell, Jr.--Appeal from 216th Judicial District Court of Kerr County

MEMORANDUM OPINION

No. 04-06-00558-CV

IN RE ROBERT JAMES ISBELL, JR.

Original Mandamus Proceeding (1)

Opinion by: Rebecca Simmons , Justice

Sitting: Catherine Stone , Justice

Karen Angelini , Justice

Rebecca Simmons , Justice

Delivered and Filed: November 8, 2006

WRIT OF MANDAMUS CONDITIONALLY GRANTED

By this original proceeding, relator Robert James Isbell, Jr., an inmate proceeding pro se, seeks a writ of mandamus to compel the Honorable Stephen B. Ables of the 216th Judicial District Court, Kerr County, Texas to rule on his May 30, 2006, "First Amendment to Defendant's Original Motion Nunc Pro Tunc." Because the trial court failed to rule upon Isbell's motion, we conditionally grant the petition for writ of mandamus.

A trial court is required to consider and rule upon a motion within a reasonable time.Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.--San Antonio 1997, orig. proceeding). When a motion for judgment nunc pro tunc addressing jail time credit is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act. Id.; Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004); In re Salinas, No. 04-05-00582-CV, 2005 WL 2369712, at *2 (Tex. App.--San Antonio, September 28, 2005, orig. proceeding). Many factors may be considered in determining whether the trial court has unnecessarily delayed a ruling, including the trial court's actual knowledge of the motion, its overt refusal to act on it, the state of the court's docket, the court's inherent power to control its docket, and the existence of other judicial and administrative matters which must be addressed. Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App.--Amarillo 2001, orig. proceeding). The relator has the burden of providing a record establishing that his motion has awaited disposition for an unreasonable time. In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.--San Antonio 2004, orig. proceeding); Tex. R. App. P. 52.3(j), 52.7(a).

On November 21, 2005, Isbell filed a "Motion Nunc Pro Tunc" with the 216th Judicial District Court, Kerr County, Texas seeking post-sentence jail time credit. On April 12, 2006, Isbell filed his first petition for writ of mandamus to compel Judge Ables to rule on his "Motion for Nunc Pro Tunc." On April 21, 2006, this court denied Isbell's writ of mandamus due in part to Isbell's failure to provide a record establishing that his motion had awaited disposition for an unreasonable time. See Mendoza, 131 S.W.3d at 168. On May 30, 2006, Isbell filed his second motion entitled "First Amendment to Defendant's Original Motion Nunc Pro Tunc." Isbell requested the trial court amend the sentence and judgment to reflect 368 additional days of jail credit. On August 18, 2006, Isbell filed his second application for writ of mandamus. In conjunction with this motion, Isbell provided this court with a partial copy of the trial clerk's record as proof of his allegations.

According to the record, Isbell was originally confined in Live Oak County Jail on October 5, 2000 and was detained in Live Oak until July 3, 2001, for a total of 272 days, (2) when Nueces County Sheriff's Department transported him to the Nueces County Jail. Isbell was detained in Nueces County Jail until October 18, 2001, for a total of 108 days, when deputies from the Kerr County Sheriff's Department transported Isbell to the Kerr County Jail. On October 24, 2001, Isbell entered a plea of no contest to the second degree felony of burglary of a habitation in Cause No. A01-335. As part of the plea agreement, Isbell was to be sentenced to six years confinement in the Institutional Division of the Texas Department of Criminal Justice. Isbell asserts the sentence was to run concurrent with Isbell's sentence from Live Oak County; and thus, the judgment on Cause No. A01-335 calculating Isbell's time from October 18, 2001, the date in which Isbell was retrieved from authorities in Nueces County, is erroneous. Because the judgment is silent, we presume Isbell's sentence was to run concurrently. Ex parte Hernandez, 758 S.W.2d 594, 596 (Tex. Crim. App. 1988) (holding that sentences assessed are to run concurrently unless the trial court specifically orders that they are to be served consecutively).

In light of the record presented, we conclude the trial court abused its discretion by taking no action on Isbell's "First Amendment to Defendant's Original Motion Nunc Pro Tunc." The record indicates that the trial court received notice and additional documents concerning Isbell's motion and thus demonstrates that although the trial court was made aware of Isbell's motion, the court to date has not performed its ministerial duty of considering and ruling on Isbell's motion. Further, in light of the trial court's failure to respond to our request of September 13, 2006, it appears that the court has no plans to take any action on Isbell's motion.

Because the trial court has failed to rule upon Isbell's motion, we conditionally grant Isbell's petition for writ of mandamus and direct respondent to consider and rule upon Isbell's motion within ten days. A writ will be issued only if necessary to effect compliance with this opinion.

Rebecca Simmons , Justice

1. This proceeding arises out of Cause No. A01-335 , styled State of Texas v. Robert James Isbell, Jr., pending in the 216th Judicial District Court, Kerr County, Texas , the Honorable Stephen B. Ables presiding.

2. Although the records from Live Oak County indicate Isbell was in custody from October 5, 2000 through June 20, 2001, Isbell contends that he was moved to a holding tank until Nueces County picked him up on July 3, 2001. Because the Nueces County records indicate he was retrieved on July 3, 2001, and there is no indication that Isbell was released during this time, we have calculated the additional thirteen days in the time spent in Live Oak County.