In Re: Marcus Cardell Rush--Appeal from 7th District Court of Smith County

NO. 12-07-00360-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: MARCUS CARDELL RUSH, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Marcus Rush was convicted of sexual assault of a child, and the trial court imposed sentence on January 29, 2004. In this original proceeding, Rush 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 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 Rush s petition for writ of mandamus.

BRIAN HOYLE

Justice

Opinion delivered October 11, 2007.

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

(DO NOT PUBLISH)