### 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. 03-11-00609- CV

In re Esau Ald ere te Oc hoa, Jr.

ORI GINAL P ROCEEDI NG F ROM WI LLIAM SO N COUNTY

M E M O R A N D U M O P I N I O N
Rel at o r E s au Aldere te Ochoa , J r., 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). I n the petition, Ochoa asks this Court to compel the trial court to enter a judgme nt nunc pro tunc modify ing his judgme nt of conviction to ref

lect fiftee n day s of missing prese ntence jail-time cre dit. We will deny the petition without prejudice.

To obtain mandamus relief in a criminal case , a rela tor must demonstrate that (1) he has no other adequate leg al reme dy to addre ss the alleg ed harm, and (2) under the rele vant fac ts and law, the act soug ht to be compelled is purely minist eria l. State ex rel. Y oung v. Sixth Judicial Dist. Court of Appeals , 236 S.W .3d 207, 210 (Tex. Crim. App. 2007). The reli ef s o u gh t must be clear and indisputable, such that its merits are bey ond dispute. Id.

The trial co urt is require d to g rant a defe ndant prese ntence jail-time cre dit at the time of sentenc ing. Tex. Code Crim. Proc

. Ann. art. 42.03 § 2(a) (West 2011). When a defe ndant

can show that the court failed to a war d jail-time cre dit a t the time the sentenc e is imposed, he may file a motion with the convicting court reque sting that it corr ect the err or by en t er i n g a judgme ntnunc pro tunc . E x parte Y barra , 149 S.W .3d 147, 148 (Tex. Crim. App. 2004). Be cause the l aw require s the trial court to awa rd cre dit for prese ntence time serve d, the j u d ge’ s failure to do so violates a minist eria l duty

. In re Daisy , 15 6 S
. W
. 3 d 9 22, 924 (Tex. App.—Dallas 2005, orig

. proce eding ). According ly , a def endant is entitled to mandamus relief upon denial of a mot ion for judgme nt nunc pro tunc , but only if the rig ht to prese ntence jail-time cre dit is absolutely indisputable under the terms of article 42.03, section 2(a) (1) of the code of criminal proce dure. See In re Brown , 343 S.W .3d 803, 804 (Tex. Crim. App. 2011).

The rela tor has the burden of providing the court with a rec ord establishing his rig ht to mandamus relief

. In re Mendoza , 131 S.W .3d 167, 168 (Tex. Ap p.—San Antonio 2004, orig

. proce eding ). Fur

ther, the Texas Rules of Appellate Procedur e require a rela tor to file a cer tified or sworn copy of every document material to hi s cl ai m fo r relief

. Tex. R. App. P
. 52.7(a) (1). Her e, Ochoa fails to explain or support his contention that he has bee n denied jail-time c redit for fiftee n day s from May 17, 2010, the date of his arr est, throug h May 31, 2010. Although Ochoa has 1 provided this Court with a copy of what he claims is his moti o n t o enter judgme nt and sentenc e
nunc pro tunc , he has failed to provide this Court with a copy of the judgme nt of conviction or any
rec ord ref lecting how much jail-time cre dit he was entitled to and how much jail-time cre dit he actua lly rec eived, if any . Acc ording ly , we cannot deter mine that it is “absolutely indisputable” that Ochoa is entitled to the jail-time credit that he c laims. See B rown , 343 S.W .3d at 804.

Acc ording to the trial court, Ochoa was awa rded seventy -two (72) day s of prese ntence 1 jail-time cre dit from May 17, 2010, until he entere d his guilty plea on July

28, 2010. 2Ba sed on the insufficient rec ord b efor e us, we cannot conclude that the trial court

a b u s e d it s d is c r e ti o n in d e n y in g O c h o a th e ja il

- ti me c r e d it th a t h e r e q u e s ts
. B e c a

u s e O c h o a h a s f

a il e d to demonstrate his rig ht to relief, the pe tition for writ of mandamus is denied w ithout prejudice.

__________________________________________ Diane M. H enson, Jus tice

Be fore J ustices Pury ear , Henson a nd Goodwin Filed: Apr il 5, 2012

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