### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00513- CV

In re Douglas H. Roberts

ORI GINAL P ROCEEDI NG F ROM MCCULLO CH COUNTY

M E M O R A N D U M O P I N I O N

Re l at o r Do ug las H. Roberts, an inmate in the Texas Depa rtment of Criminal J u s t ice, filed a pro se petition for writ of mandamus asking this Court to compel the Honora ble Melvin R ex E merson, J r., presiding judge of the 198th J udicial District Court of McCulloch County , to “proc ess” his motion for a nunc pro tunc judgme nt modify ing his judgme nt of conviction to ref

lect purportedly missing prese ntence jail-time cre dit. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2012); Tex. R. App. P. 52; see also Tex. R. App. P. 23. We deny the petition.

A trial court is require d to g rant a defe ndant pres en t ence jail-time cre dit when the sentenc e is pronounce d. Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (West Supp. 2011); Ex parte Y barra , 149 S.W .3d 147, 14 8 (T ex . Crim. App. 2004). Thus, whene ver a defe ndant can show indisputably that he has been denied jail-time cre dit for a period of pretria l incar cer at i o n , he is entitled to relief from the convicting court in the form of a judgme nt nunc pro tunc and, failing that, by writ of mandamus in the court of appea ls. In re Brown , 343 S.W .3d 803, 805 (Tex. Crim. App. 2011); Y barra , 149 S.W .3d at 148.Howeve r, to obtain mandamus relief for the trial court’s ref usal to rule on a motion, a relator mus t es t ab l i s h : (1) the m otion was properly filed and has been pending for a rea sonable time; (2) the relator reque sted a ruling on the m otion; and (3) t h e t ri al court ref used t o rule. In re Sarkissian , 243 S.W .3d 860, 8 6 1 (Tex. App.—Waco 2008, orig

. proce eding ); In re Hearn , 137 S.W .3d 681, 685 (Tex. App.—San Antonio 2004, orig

. proce eding ). A relator must show that the trial court rec eiv ed, was awa re of, and was asked to rule on the motion. In re Blakene y , 254 S.W .3d 659, 661 (Tex. App.—Texarkana 2008, orig . proce eding ). Fur ther, it is relator’s burden to proper ly reque st and show entitlement to mandamus relief

. W alker v. Pack

er , 827 S.W .2d 833, 837 (Tex. 1992) ; In re Davidson , 153 S.W .3d 490, 491 (Tex. App.—Amar illo 2 0 0 4 , orig

. proce eding ); see Barnes v. State , 832 S.W .2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig

. proce eding ) (“Eve n a pro se applicant for a writ of mandamus

m u s t s h o w h i m s elf entitled to the ex traordina ry relief he seeks.”). I n this reg ard, the relator must provide the r eviewingcourt with a r ecor d sufficie nt to establish his right to mandamus re lief. See W alker , 827 S.W .2d at 837; Blakene y , 254 S.W .3d at 661; see also Tex. R. App. P. 52.7(a) (re lator must file with petition “a cer tified or sworn copy of ever y document that is materia l to the relator’s claim for relief and that was filed in a ny underly

ing proce eding ”), 52.3(k) (spec ify ing the require d contents for

the appe ndix ), 52.7(a ) (spe cify ing the require d contents for the re cord)

. Roberts has failed to provide this Court with a file-stampe d copy of his motion or any other documents to show that a proper ly filed motion for judgme nt nunc pro tunc is pending befor e

2the trial court. Consequently , there is no way for us to deter mine whether the motion was proper ly 1 filed or, if it was, the date on which it was re ceive d by either the cler

k’s offic e or the judge . Even if we assume that the motion wa s proper ly filed, Roberts has not de monstrated that the motion has been broug ht to the t ri al court’s attention or that the court is awa re of the motion. See Hearn , 137 S.W .3d at 685 (simply filing matter with district cler k is not sufficie nt to impute knowledg e of pending pleading to trial court). I n addition, Roberts has failed to provide any corr espondenc e to the district court reque sting a ruling on the motion or any other document that shows that he broug ht the motion to the attention of t he trial court. See id. (mere filing of motion with t rial cour

t clerk does not constitute reque st that trial court rule on motion). Finally , Roberts has failed to provide any thing indicating that the trial court has ref used to rule on the motion, or failed to rule within a rea sonable t ime. Absent a showing that the trial court is awa re of the motion, has been aske d t o ru l e o n h i s reque st, a nd ref used to do so, Roberts has not e stablished entitlement to the extraordinary relief of

a writ of mandamus. See In re Salazar , No. 03-11-00550- CV, 2011 WL 4507296, at *1 (Tex. App.—Austin Sept. 30, 2011) (mem. op., not desig nated for publication) (mandamus relief denied beca use rela tor failed to provide copy of motion, any corr espondenc e to district court reque sting ruling on motion, or any

thing indica

ting district cour

t refuse d to rule on motion). Fur therm o re , Roberts has failed to provide this Court with any documentation to support his claim that he is entitled to prese ntence jail-time cre dit. He failed t o provide a copy of

I n support of his petition for writ of mandamus, Roberts att ac h ed a document entitled 1 “Motion to Enter Nunc Pro Tunc Orde r.” Howeve r, this document is not file-mar ked by the district cler k. No other document or rec ord of proce eding s is attache d to or furnished in support of the petition. 3the judgme nt of conviction or any rec ord ref lecting how much jail-time cre dit he was entitled to, if any , and how mu ch jail-ti me credit he actually rec eived, if any . Consequently , Roberts has failed to provide a suffi ci en t rec ord for us to deter mine that he is indisputably entitled to the jail-time

cre dit he seeks. See In re Garza , No. 03-11-00820- CV, 2012 WL 512678, at *3 (Tex. App.—Austin Fe b. 15, 2012) (mem. op., not desig nated for publication) (mandamus relief denied beca use relator failed to provide sufficie nt rec ord demonstra ting indisputable e ntitlement to jail-ti me cr edit). Acc ording ly , we de ny

the petition for wr it of mandamus.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Denied Filed: August 21, 2012

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