In Re Christopher John Shaffer v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 28, 2023
• Docket: 01-23-00731-CR
• Status: Published

Opinion

Opinion issued November 28, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00731-CR ——————————— IN RE CHRISTOPHER JOHN SHAFFER, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator Christopher John Shaffer, acting pro se, has filed a petition for writ

of mandamus, requesting this Court to order the trial court to correct his sentence

nunc pro tunc.1 We deny the petition.

During a pretrial hearing before he was adjudicated guilty, Shaffer’s counsel

argued that the predecessor judge had found not true the enhancements to the two 1 The underlying case is The State of Texas v. Christopher John Shaffer, cause number 16-043, pending in the 25th District Court of Colorado County, Texas, the Honorable Jessica Richard Crawford presiding. counts of evading arrest and possession of a controlled substance. The State

disagreed, asserting that the trial court had found the enhancement to count 2 true

because the deferred adjudication order referred to Shaffer as a habitual offender.

The order of deferred adjudication is not in the mandamus record.

The successor judge asked to review documents before proceeding with the

adjudication hearing. At the adjudication hearing, the trial court accepted Shaffer’s

plea of guilty to count 2. Shaffer acknowledged on the record that he understood

the State’s recommendation of 25 years with credit for time served. The trial court

signed a judgment adjudicating Shaffer guilty of possession of a controlled

substance and sentencing him in accordance with the State’s recommendation to 25

years in the Institutional Division of the Texas Department of Criminal Justice.

Shaffer subsequently filed a motion for judgment nunc pro tunc, which the

trial court denied by order signed on September 11, 2023. Shaffer claims that the

trial court had a ministerial duty to grant his motion for judgment nunc pro tunc.

To be entitled to mandamus in a criminal law matter, “the relator must show

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

he seeks to compel is ministerial.” In re Mendoza, 467 S.W.3d 76, 78 (Tex.

App.—Houston [1st Dist.] 2015, orig. proceeding). The denial of a motion for

nunc pro tunc is not appealable but may be challenged by mandamus. See Ex parte

Ybarra, 149 S.W.3d 147, 148–49 (Tex. Crim. App. 2004) (providing that

2 appropriate remedy for denial of motion for judgment nunc pro tunc is to file

petition for writ of mandamus).

Here, Shaffer has not established that the trial court had a ministerial duty to

grant his motion for judgment nunc pro tunc. Shaffer asked the trial court to

correct the judgment based on his claim that the predecessor judge had determined

the enhancement for count 2 was not true. The predecessor’s determinations were

allegedly documented in the order of deferred adjudication, which is not in the

mandamus record. The trial court requested copies of this document and other

documents to review in determining Shaffer’s motion, but Shaffer has not provided

these documents in the mandamus record. Because we have not been provided the

documents the trial court reviewed, Shaffer has not provided a sufficient record to

establish that the trial court had a ministerial duty to grant the motion for judgment

nunc pro tunc. See, e.g., TEX. R. APP. P. 52.3(k).

We deny the petition. See TEX. R. APP. P. 52.8(a). Any pending motions are

dismissed as moot.

PER CURIAM Panel consists of Justices Kelly, Hightower, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).