In Re: Lee Roy Garcia v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-07-00283-CR

NO. 12-07-00284-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: LEE ROY GARCIA, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Lee Roy Garcia pleaded guilty to two felony offenses (trial court cause numbers 007-1276-02 and 007-1512-02). He was sentenced to ten years of imprisonment in each case, with the sentences to be served consecutively. In this original proceeding, Garcia alleges he was not given proper credit for his presentence jail time and that he filed a motion requesting a nunc pro tunc judgment, which the trial court denied. He now seeks a writ of mandamus compelling the trial court to grant him proper jail time credit.

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. Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App. 2004). In cases such as this, when the trial court has ruled on the 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. Ann. 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). Accordingly, we deny Garcia s petition for writ of mandamus.

SAM GRIFFITH

Justice

Opinion delivered August 8, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)