in Re: Charles R. Harris

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-07-00072-CV ______________________________ IN RE: CHARLES R. HARRIS Original Mandamus Proceeding Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Charles R. Harris has filed a petition asking this Court to issue a writ of mandamus against the 8th Judicial District Court. Harris complains the trial court has refused to properly give him sixteen months of jail time credit to which he was entitled for time that he was incarcerated in the Cook County jail in Illinois while under a detainer from the State of Texas, and fifty-seven days that he was held in the Hopkins County jail in Texas awaiting transfer to the Texas Department of Criminal Justice. To obtain mandamus relief, a relator must demonstrate that (1) he or she has no other adequate legal remedy, and (2) under the relevant facts and law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). An act is ministerial if it does not involve the exercise of any discretion and the relator has a clear right to relief. See id. The relief sought must be clear and indisputable, such that its merits are beyond dispute. See id. at 927-28. Harris correctly notes that the controlling authority for the procedure to be followed under these allegations is Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App. 2004). The Texas Court of Criminal Appeals recognized that the trial court is required to grant the applicant presentence jail time credit when sentence is pronounced, and that if the court fails to do so, 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. Id. at 148-49; see Tex. R. App. P. 23.2. The court stated that matters which may be raised and resolved by nunc pro tunc proceedings should not be considered by way of writ of habeas corpus. Id.; see Ex parte Pena, 71 S.W.3d 336, 336-37 (Tex. Crim. App. 2002). The court then held that the appropriate remedy was to require the party to present the issue to the trial court by way of a nunc pro tunc motion. If the trial court declined to rule, the court held that it was then appropriate to seek a writ of mandamus from the court of appeals. Ex parte Deeringer, 210 S.W.3d 616, 617 (Tex. Crim. App. 2006); Ybarra, 149 S.W.3d at 148. Further, because the trial court is statutorily required to award credit for presentence time served, the judge's failure to do so violates a ministerial duty. See Hill, 34 S.W.3d at 927-28; In re Daisy, 156 S.W.3d 922, 924 (Tex. App.--Dallas 2005, orig. proceeding). In this case, Harris stated in his petition that he had filed a motion with the district court requesting jail time credit for the sixteen-month time period and that the motion was denied. (1) It does not indicate that he sought a nunc pro tunc judgment from the trial court, and it contains no documentation about any of the matters complained of, as required by Tex. R. App. P. 52.3(j). Thus, we have no details about Harris' incarceration either in Illinois or in Texas, and he has provided no documentation or authority to support his suggestion that a detainer in another state in his particular case should properly count as credit against his sentence in Texas. Harris has not shown himself to be entitled to mandamus relief. We deny the petition. Jack Carter Justice Date Submitted: June 12, 2007 Date Decided: June 13, 2007 OPINION ON REHEARING Charles R. Harris has filed a motion for rehearing from our opinion on his petition for writ of mandamus, in which he attempts to provide information that would cure the problems discussed in our original opinion. He has attached copies of two orders, one denying his motion for an order nunc pro tunc in which he sought an additional eleven days' jail credit in underlying cause number 0116034 (for time spent in the Hopkins County jail), and the other denying a similar motion seeking sixteen months of jail credit in cause number 0116033 (for time spent in the Cook County jail in Illinois). He has also attached a letter from the office of the State Counsel for Offenders that shows the result of its investigation of Harris' jail time and its conclusions about the time credit for which Harris was eligible in those two causes. Harris' letter from the State Counsel for Offenders' office breaks down his jail time and the procedural history of the two cases. Both were deferred adjudications. The letter indicates that case number 0116033 was adjudicated (on an unspecified date, apparently around January or February 2002). Cause number 0116034 indicates that the motion to adjudicate was withdrawn and that Harris was not adjudicated guilty until July 16, 2004, which was after he had been returned from Illinois to Hopkins County. The first attached order denies a request for eleven days' credit in cause number 0116034 for time spent in custody in the Hopkins County jail. Harris states in his motion for rehearing that this is for time spent in custody awaiting transfer to the Texas Department of Corrections. No eleven-day time period appears in the State Counsel for Offenders' letter. It is not apparent from the record provided that error exists. (2) In the second attached order, the trial court declined to provide sixteen months' time credit in cause number 0116033 for the time spent in the Cook County jail. The letter from the State Counsel for Offenders' office indicates that, while Harris was in the Illinois jail, the State of Texas had put a hold on him for cause number 0116033, the cause for which he had previously been adjudicated guilty. Harris argues that, under applicable law, he has not been provided with the time to which he is entitled. As recently reiterated by the Texas Court of Criminal Appeals in Ex parte Rodriguez, "[w]hen a person is confined by another jurisdiction, . . . , he is confined on 'said' cause only if a detainer or 'hold' is lodged against him by that jurisdiction." Ex parte Rodriguez, 195 S.W.3d 700, 703 (Tex. Crim. App. 2006) (quoting Ex parte Bynum, 772 S.W.2d 113, 114 (Tex. Crim. App. 1989)). The court explained that "it is not the fact that the individual is currently serving a term in a penal institution which determines whether credit should be given; rather, it is the fact that another jurisdiction has chosen to lodge a hold against the individual." Id. (quoting Bynum, 772 S.W.2d at 115). However, we have received a response from the trial court in which it states categorically that Harris was given credit for time served in the Cook County jail, Illinois, beginning March 27, 2003--the date on which the motion to adjudicate guilt was filed--as also reflected by the letter from the State Counsel for Offenders. The matters raised by the motion for rehearing are thus moot, and we deny the motion for rehearing. Jack Carter Justice Date Decided: August 7, 2007 1. It is not clear whether Harris also asked for the fifty-seven days' credit at that time. 2. Harris makes no mention of the fifty-seven-day time period that he referenced in his original petition.