TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00609-CV

In re Esau Alderete Ochoa, Jr.

ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

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

Relator Esau Alderete Ochoa, Jr., an inmate, has filed a pro se petition for writ of

mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221 (West 2011). In the petition, Ochoa

asks this Court to compel the trial court to enter a judgment nunc pro tunc modifying his judgment

of conviction to reflect fifteen days of missing presentence jail-time credit. We will deny the petition

without prejudice.

To obtain mandamus relief in a criminal case, a relator must demonstrate that (1) he

has no other adequate legal remedy to address the alleged harm, and (2) under the relevant facts and

law, the act sought to be compelled is purely ministerial. State ex rel. Young v. Sixth Judicial Dist.

Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). The relief sought must be clear

and indisputable, such that its merits are beyond dispute. Id.

The trial court is required to grant a defendant presentence jail-time credit at the

time of sentencing. Tex. Code Crim. Proc. Ann. art. 42.03 § 2(a) (West 2011). When a defendant

can show that the court failed to award jail-time credit at the time the sentence is imposed, he may

file a motion with the convicting court requesting that it correct the error by entering a judgment
nunc pro tunc. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). Because the law

requires the trial court to award credit for presentence time served, the judge’s failure to do so

violates a ministerial duty. In re Daisy, 156 S.W.3d 922, 924 (Tex. App.—Dallas 2005, orig.

proceeding). Accordingly, a defendant is entitled to mandamus relief upon denial of a motion for

judgment nunc pro tunc, but only if the right to presentence jail-time credit is absolutely indisputable

under the terms of article 42.03, section 2(a)(1) of the code of criminal procedure. See In re Brown,

343 S.W.3d 803, 804 (Tex. Crim. App. 2011).

The relator has the burden of providing the court with a record establishing his right

to mandamus relief. In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig.

proceeding). Further, the Texas Rules of Appellate Procedure require a relator to file a certified or

sworn copy of every document material to his claim for relief. Tex. R. App. P. 52.7(a)(1). Here,

Ochoa fails to explain or support his contention that he has been denied jail-time credit for fifteen

days from May 17, 2010, the date of his arrest, through May 31, 2010. Although Ochoa has 1

provided this Court with a copy of what he claims is his motion to enter judgment and sentence

nunc pro tunc, he has failed to provide this Court with a copy of the judgment of conviction or any

record reflecting how much jail-time credit he was entitled to and how much jail-time credit he

actually received, if any. Accordingly, we cannot determine that it is “absolutely indisputable” that

Ochoa is entitled to the jail-time credit that he claims. See Brown, 343 S.W.3d at 804.

According to the trial court, Ochoa was awarded seventy-two (72) days of presentence 1

jail-time credit from May 17, 2010, until he entered his guilty plea on July 28, 2010.

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Based on the insufficient record before us, we cannot conclude that the trial court

abused its discretion in denying Ochoa the jail-time credit that he requests. Because Ochoa has failed

to demonstrate his right to relief, the petition for writ of mandamus is denied without prejudice.

__________________________________________

Diane M. Henson, Justice

Before Justices Puryear, Henson and Goodwin

Filed: April 5, 2012

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