### 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. 03-11-00820- CV

In re Joe Torr es G arza

ORI GINAL P ROCEEDI NG F ROM H AY S CO UNTY

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

J oe Torr es Gar za has filed a petition for writ of mandamus seeking to compel the district court to enter a nunc pro tunc order modify ing h is judgme nt of conviction to ref lect time alleg edly spent in the custody of t he Tex as Department of Criminal J ustice (TDC J ) o n a detainer. Be cause we conclude that the rec ord provided does not demonstrate that Garza has an indisputable rig ht to the relief r equeste d, we will deny the petition without prejudice. The rec ord ref

lects that Garz a was convicted of the offe nse of ag g rava ted

assa u l t with a deadly wea pon on Fe bruar

y 3, 2011, in trial court cause number 09-621. The judgme nt of conviction, which is included in the rec ord, shows t hat Gar za pleade d g uilty to the offe nse and w as sentenc ed to five y ear s’ imprisonment. The judg ment also shows that Gar za was

awa rded jail-time cre dit for the periods from May 6, 2009 to May 20, 2009, and from J une 25, 2010 to Febr uary 3, 2011. Also incl uded in the rec ord is a computer printout, appar ently from the Texas Depar

tment of Criminal J ustice, showing that a deta iner was place d on Gar za while he wa sincar cer ated at TDCJ for a separ ate offense

. The printout, which was d at ed J une 2, 2011, shows 1 that the detainer was reque sted by the Hay s County Sheriff’ s Office. T h e o ff en se listed on the printout was ag g rava ted assault with a deadly wea pon, with a ref

ere nce number o f “C R 0 9 0 621,”

corr esponding to the trial court cause number for the char g ed offe nse. There wer e also two additional dates on the printout: November 23, 2009, which appea rs to be the date the detainer was reque sted, and June 25, 2010, the date the de tainer be came “inac tive.” 2

The only other document included in the rec ord is the district court’s order deny ing Gar za’s motion for judgmen t nunc pro tunc. I n the document, Gar za claims that he is entitled to

rec eive jail-time c redit for the periods from “05-06-09 to 05-20-09,” “11-23- 09 to 06-25-10,” a nd “6-25- 10 to 02-03-11.” T he district cour t denied the motion without ex planation. Gar za has now filed a peti t i o n for writ of mandamus complaining of the district court’s order deny ing his motion. Acc ording to Gar za, he is entitled to rec eive cre dit for the time spent incar cer ated on the detainer reque sted by Hay s County , which Garza claims was from November

23, 2009, until J une 25, 2010. 3 “The traditional test for deter mining whether mandamus relief is appropr iate require s the rela tor to establish two things.” State ex rel. Y oung v. Sixth Jud. Dist. Court of Appeals ,
Ac co rd i ng to TDCJ ’s website, at the time the detainer was place d on Gar za, he was 1 incar cer ated for the offe nse of unauthorized use of a mot o r v eh i cl e. See Texas Depa rtment of C ri m i n al J u s t i ce Of

fe n d er In f

o r m a t i o n D e t a i l s , J o e T o r r e s G a r z a , a v a i l a b l e a t http:// offe nder.tdc

j.state.tx .us/POS db2/offende rDe tail.action? sid=05574914. I t appea rs from the printout that detainer s which are no longe r active are classified by 2 TDCJ as either

“ca ncele d,” “ina ctive,” or “expired.” There is no indication in the recor d as to the distinctions between these terms. We reque sted a re sponse from the State to Ga rza’s petition, but no response wa s filed. 3 2236 S.W .3d 207, 210 (T ex . C ri m . App. 2007). “F irst, he must show that he has no adequate

reme dy at law to redr ess his alleg ed harm.” Id

. “Second, he must show that what he seeks to compel is a minist eria l act, not i n v o l v i n g a discretionar y or judicial decision.” Id

. “I f the rela tor fails to satisfy either aspec t of this two-pa rt test, then relief should be denied.” Id

. The latter require ment is satisfied if the rela tor can show he has “a clea r rig ht to the relief soug ht.” Id

. I n other words, “an
act may be reg arde d as ‘ministerial’ when the fac ts are undisputed and, g iven those undisputed fac ts, ‘the law clea

rly spells out the duty to be perf ormed

. . . with such cer

tainty that nothing is left to the exercise of discretion or judgme nt.” Id

. (quoting State ex rel. Healey v. McM eans , 884 S.W .2d 772, 774 (Tex. Crim. App. 1994)).

I n this case , Gar za’s entitlement to mandamus relief hinge s on whether he has a clea r rig ht to the additional jail-time cre dit reque sted in his motion. “I n all criminal case s the judge of the court in which the defe ndant was convicted shall give the defendant credit on his sentenc e for the time the defe ndant has spent (1) in jail in said cause . . . from the time of arr est and confine ment until his sentenc e by the trial court.” Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (1) (West Supp. 2011). Consequently , “[t] he trial court is require d to g rant the [ d ef endant] pre- sentenc e jail time when sentenc e is pronounce d.” See Ex parte Y barra , 149 S.W .3d 147, 148 (Tex. Crim. App. 2004).
I f the trial court does not do so at that time, the defe ndant may later file a motion for judgme nt

nunc pro tunc reque sting the time cre dit. S ee i d

. “Wheneve r a defe ndant can show indisputabl y that he has been denied jail-time cre dit for a period of pre- trial incar cer ation for the identical ‘ca se’ for which he was convicted and s entenc ed, he is entitled to relief from the convicting co u rt i n the

3form of a judgment nunc pro t unc and, failing that, by writ of m andamus in the court of appea ls.”

In re Brown , 343 S.W .3d 803, 805 (Tex. Crim. App. 2011) (emphasis adde d).

When a person is alre ady confine d, either phy sically or constructively , by another jurisdiction for a separ ate offe nse, he is confine d on the char g ed offe nse only if a detainer or “hold” is lodge d ag ainst him by

that jurisdiction. See Ex parte Bynum , 772 S.W .2d 113, 114 (Tex. Crim. App. 1989); Nixon v. State , 572 S.W .2d 699, 701 (Tex. Crim. App. 1978). The eff ect of a detainer

or hold while incar cer ated in TDCJ is “no differ ent than if [t he petitioner] had been incar cer ated in another state’s prison or in a fede ral penitentiary .” Bynum , 772 S.W .2d at 115. “No formal detainer is require d if it is established by some other means that the prisoner was detained in that cause . . . .” Ex parte Hannington , 832 S.W .2d 355, 356 (Tex. Crim. App. 1992) (citing Ex parte Kuban , 763 S.W .2d 426 (Tex. Crim. App. 1989). “I f in fac t a hold was place d, appellant should be cre dited with all such time.” Nixon , 572 S.W .2d at 701.

Her e, the computer printout sug g ests that a detainer was place d on Gar za by the Hay s County Sheriff’ s Offic e for the char g ed offe nse—the offe nse and cause number on the printout

corr espond to the offe nse and cause number on the judgme nt of convicti o n , and Garza’s name appea rs on both documents. Howeve r, t he lengt h o f t ime the detainer was place d on Gar za is not clea r from the rec ord. The printout appar ently shows the date the detainer was re q u est ed and the date the detainer beca

me “inac tive,” but the printout does not specify whether the detainer was place d on Gar za for that entire time period or f or some other period of time w ithin those dates. I n order to clar ify the amount of time that the detainer was place d on Gar za, additional evidenc e is

n ee d ed , s u ch as an aff

idavit or other evidenc e from a person with knowledg e of TDCJ detainer

4proce dures who could confirm that the dates on the printout corr es p o n d t o t h e dates in which

the detainer was place d on Gar za, or cer tified documents from TDCJ showing that the detainer was in fac t place d on Gar za for the time pe riod in question. See Ex parte Rodriguez , 195 S.W .3d 700, 4 703-04 (Tex. Crim. App. 2006); Ex parte Hernande z , 845 S.W .2d 913, 914 (Tex. Crim. App. 1993). Moreove r, the judgme n t o f co n viction ref lects that Gar za pleade d g uilty to the char g ed offe nse. Thu s , i t is possible that this is a plea- barg ain case and that, as part of the plea ag ree ment, Gar za had ag ree d to a set number of day s of jail-time cr ed i t t h at ar e alre ady

ac cu ra t ely ref

lected in the judgme nt of conviction. I f that is the case , then Gar za would n o t b e entitled t o a judgme nt nunc pro tunc awa rding him any additional jail-time cre dit. See Colli ns

v. State , 240 S.W .3d 925, 928-29 (Tex. Crim. App. 2007) (holding that judgme nt nunc pro tunc was
not proper reme dy for failure to awa rd pre- sentenc e time c redit wher e trial court exercised judicial

rea soning in allowing terms of plea barg ain to control time cre dit awa rded and explaining that “the ability o f a defe ndant to enter into a plea barg ain and waive his rig ht to back- time is important beca use it demonstrates that Appellee did not have a clea r automatic leg al rig ht to the pre- sentenc e

cre dit”). I f, on the other hand, the amount o f p re -s entenc e cre dit was not a neg otiated term of a p l ea barg ain, then a judgme nt nunc pro tunc ref lecting the actua l amount of time Gar za ser v ed i n the ca se would be a

ppropriate

. See I

n re Gome

z , 268 S.W .3d 262, 266 (Tex. App.—Austin 2008, orig

. proce eding ) (conditionally g ranting mandamus relief in case in which “plea ag ree ment did not addre ss, one way or the other, w hether [relator] was to rec eive ba ck-time [cre dit] or how much”)

.

We note that the copy of the computer printout included in the rec ord does not appea r to be 4 a cer tified copy as require d by the rules of evidenc e. See Tex. R. Evid. 902(4) (per taining to cer

tified copies of public r ecor ds). 5Her e, the terms of the plea ag ree ment have not been m ad e a p ar t o f the rec ord. Nor has Gar za

repr esente d in his petiti on that the amount of pre -sentenc e cr edit was not a te rm of the a g ree ment.

I n summary , it is rela

tor’s burden to provide this Cou rt with a rec ord sufficie nt
t o es tablish his rig ht to mandamus relief

. See Tex. R. App. P. 52.7(a) ; cf. W alker v. P a ck

er , 8 2 7 S.W .2d 833, 837 (Tex. 1992). I n this case , that means providing a rec ord sufficie n t t o s h o w that the district court abused its discretion in deny ing Gar za the jail-time cr ed i t t o wh i ch he is indisputably entitled. See Brown , 343 S.W .3d at 805. For the rea sons discussed above, Gar za has failed to provide such a rec ord. Acc ording ly , we deny Gar za’s petition without prejudice to re- file his petition at a later time.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Filed: F ebrua

ry 15, 2012

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