in Re: Brian K. Melton

Opinion

ACCEPTED 06-15-00140-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 8/21/2015 4:40:58 PM DEBBIE AUTREY CLERK

IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA FILED IN 6th COURT OF APPEALS BRIAN K. MELTON, § TEXARKANA, TEXAS APPELLANT § 8/24/2015 9:59:00 AM § DEBBIE AUTREY Clerk v. § Nos. 06-15-00140-CR § § THE STATE OF TEXAS, § APPELLEE §

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

FROM THE 354Tr-r JUDICIAL DISTRICT COURT HUNT COUNTY, TEXAS

TRIAL CAUSE NUMBERS 20,572 THE HONORABLE RICHARD A. BEACOM, JR., JUDGE PRESIDING

NOBLE DAN WALKER, JR. District Attorney Hunt County, Texas

KELI M. AIKEN First Assistant District Attorney P. 0. Box 441 4th Floor Hunt County Courthouse Greenville, TX 75403 kaiken(a),huntcounty .net (903) 408-4180 FAX (903) 408-4296 State Bar No. 24043442 RESPONSE TO PETITION FOR WRIT OF MANDAMUS

Relator has requested that the trial comi issue a nunc pro tunc judgment on

a case that occurred in 2001 some fourteen years ago. See Exhibit Bin Relator's

motion. The trial comi initially signed a judgment ordering that Relator serve a

twenty year prison sentence with 258 days credit for a crime that occurred only

one hundred and one days before the judgment was signed. The offer of 25 8 days

credit was intentional and pati of a plea bargain offered by the State. See Exhibit

E in Relator's motion. The trial comi honored that plea agreement and sentenced

Relator accordingly. Relator then challenged the judgments in a writ of habeas

corpus because he did not receive the full258 days credit from TDCJ-ID. See

Exhibit D in Relator's motion. The trial court entered findings of fact and

conclusions of law stating that Relator was entitled to 258 days credit and signed

a nunc pro tunc order changing the length of the sentence to allow for the full258

days credit to be given to Relator. See Exhibits E and F in Relator's motion.

Now Relator objects to the new judgment allowing for 258 days credit by

adjusting the overall length of his sentence from 20 years in prison with 258 days

credit to 19 years with 200 days credit- the judgment the comi entered in

response to the writ of habeas corpus in an attempt to give Relator the full benefit

of his plea bargain. The trial comi recognizes that a nunc pro tunc is authorized

to correct clerical errors and not to change the oral pronouncement of sentence

2 rendered.

Regardless of whether the nunc pro tunc was the appropriate method of

attempting to give Relator the benefit of his initial plea, it is, and remains the trial

court's intention to render judgment in a way that allows for the full credit agreed

to in the original plea.

3 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the undersigned attorney or record ce1iifies that this response contains 14-point typeface of the body of the brief and contains 326 words and was prepared on Microsoft Word 2013.

/s/ Keli M. Aiken KELI M. AIKEN First Assistant District Attorney P. 0. Box 441 4th Floor Hunt County Comihouse Greenville, TX 7 5403 (903) 408-4180 FAX (903) 408-4296 State Bar No. 24043442

CERTIFICATE OF SERVICE

A true copy of this response will be mailed to Relator at his imnate address

provided on the unsworn declaration.

Is/ Keli M. Aiken KELI M. AIKEN First Assistant District Attorney