Petition for Writ of Mandamus Denied and Memorandum Opinion filed 

August 27, 2013.

In The

Fourteenth Court of Appeals

NO. 14-13-00726-CR

NO. 14-13-00727-CR

NO. 14-13-00728-CR

IN RE DAVID A. PEREZ, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause Nos. 1248823, 1249065, & 1323866

MEMORANDUM OPINION

Relator David A. Perez, an inmate confined in the Institutional Division of 

the Texas Department of Criminal Justice, filed a pro se petition for writ of 

mandamus in this court.1See Tex. Gov’t Code §22.221; see also Tex. R. App. P. 

52. In the petition, relator asks this court to compel the Honorable Shawna L. 

 

1

This is relator’s second petition seeking essentially the same relief. See In re Perez, Nos. 14-13-

00590-CR, 14-13-00591-CR, 14-13-00592-CR, 2013 WL 3871033 (Tex. App.—Houston [14th 

Dist.] July 23, 2013, orig. proceeding) (not designated for publication) (denying relief because 

petition failed to demonstrate relator’s motion was pending in the trial court).
2

Reagin, presiding judge of the 176th District Court of Harris County, to sign nunc 

pro tunc orders to amend the sentences in his criminal convictions.2 Appellant 

seeks to modify the credit for his pre-sentence time served and to have the 

judgments reflect that the sentences are to be served concurrently. Relator asserts 

that his sentences do not comport with the trial court’s oral pronouncement at his 

sentencing hearing.

A nunc pro tunc order is appropriate to correct clerical errors in the 

judgment the trial court actually rendered, but not to correct errors that were the 

result of judicial reasoning. See Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim.

App. 2007). If a trial court fails to award proper credit for pre-sentence jail time at 

the time the sentence is imposed, the trial court has the authority to correct the 

judgment to reflect the appropriate time credit by nunc pro tunc order and should 

do so. See Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). Relief 

from an improper cumulation order is generally obtained through a post-conviction 

application for a writ of habeas corpus, however. See Ex parte Madding, 70 

S.W.3d 131, 135–36 (Tex. Crim. App. 2002) (granting relief and holding that a

trial court’s oral pronouncement that sentences are to be served concurrently 

controls over the written judgment’s cumulation order). 

To be entitled to mandamus relief in a criminal case, a relator must show 

that he has no adequate remedy at law to redress his alleged harm, and the act he 

seeks to compel is purely ministerial. State ex rel. Young v. Sixth Jud. Dist. Ct.

App. at Texarkana, 236 S .W.3d 207, 210 (Tex. Crim. App. 2007) (orig.

 

2 Appellant entered guilty pleas to two counts of robbery and one count of reckless injury to a 

child. In accordance with the terms of a plea bargain agreement with the State, the trial court 

sentenced appellant on October 27, 2011, to confinement for ten years in prison for each offense. 

In each case, the trial court signed a certification that the defendant had no right to appeal. See 

Tex. R. App. P. 25.2(a)(2). Accordingly, we dismissed relator’s direct appeals. See Perez v State,

Nos. 14-11-00968-CR, 14-11-00969-CR, & 14-11-00970-CR, 2012 WL 27784 (Tex. App.—

Houston [14th Dist.] Jan. 5, 2012, no pet.) (not designated for publication).
3

proceeding). An act is ministerial if it does not involve the exercise of any 

discretion. State ex rel. Hill v. Ct. App. for the Fifth Dist., 34 S.W.3d 924, 927 

(Tex. Crim. App. 2001). When a motion is properly filed and pending before a trial 

court, the act of considering and resolving it is ministerial, not discretionary. Ex 

parte Bates, 65 S.W.3d 133, 134–35 (Tex. App.—Amarillo 2001, orig. 

proceeding).

It is relator’s burden to provide this court with a sufficient record to establish 

his right to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 

(Tex.1992) (orig. proceeding); Tex. R. App. P. 52.3, 52.7. In this proceeding, 

relator is required to establish that his motions for nunc pro tunc orders were 

properly filed and are pending before the trial court, he has asked the trial court to 

rule, and the trial court either refused to rule or failed to rule within a reasonable 

time. See Barnes v. State, 832 S.W.2d 424, 426, 427 (Tex. App.—Houston [1st 

Dist.] 1992, orig. proceeding). 

Although relator states in his petition that he has attached a stamped copy of 

his motion for nunc pro tunc orders, no such copy has been provided. Relator has 

also failed to provide a copy of the sentencing hearing to which he cites.3Included 

with his petition is a copy of a nunc pro tunc order in cause number 1323866

correcting the sentence to reflect that relator is to receive credit for time served 

from 8/31/2008 to 5/14/2009 and from 1/26/2010 to 10/27/2011.4 Relator also 

included copies of the judgments in cause numbers 1248823 and 1249065, in 

which this first period of time credit has been marked through. The judgments 

reflect that the sentences “shall run CONCURRENTLY,” however. 

 

3 No record from the sentencing hearing was filed in the direct appeals.

4 We note that a defendant is entitled to “credit on his sentence for the time that the defendant 

has spent in jail in said cause, other than time served as a condition of community supervision, 

from the time of his arrest and confinement until his sentence by the trial court.” Tex. Code (Tex. 

Crim. App. Proc. art. 42.03 §2(a) (emphasis supplied). Thus, it is possible for the credit to be 

different for different offenses.
4

Relator has not established that he is entitled to relief. Accordingly, we deny 

the petition for writ of mandamus.

PER CURIAM

Panel Consists of Justices Frost, Boyce, and Jamison.

Do Not Publish — Tex. R. App. P. 47.2(b).