in Re David R. Salinas

• Court: Court of Appeals of Texas
• Decided: December 21, 2005
• Docket: 04-05-00765-CV
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-05-00765-CV

IN RE David R. SALINAS

Original Mandamus Proceeding

PER CURIAM

Sitting:            Alma L. López, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed:   December 21, 2005

PETITION FOR WRIT OF MANDAMUS DENIED

            On October 25, 2005, David R. Salinas filed a petition for a writ of mandamus complaining of the trial court’s order dismissing his motion for judgment nunc pro tunc based on a lack of jurisdiction. Mandamus may issue only to correct a clear abuse of discretion when there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). In his motion, Salinas represented that he had served time in federal prison on an unrelated matter years after his sentence was imposed in the underlying case. Salinas asked the convicting court to credit this time to his sentence by way of a judgment nunc pro tunc. A trial court may correct an error in applying pre-sentence jail credit by judgment nunc pro tunc. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). However, such a procedure is inappropriate for crediting time served after sentencing. See Ex parte Dunlap, 166 S.W.3d 268, 269 (Tex. Crim. App. 2005); Ex parte Russell, 60 S.W.3d 875, 876-77 (Tex. Crim. App. 2001). Therefore, the trial court did not abuse its discretion in dismissing Salinas’ motion for judgment nunc pro tunc. Additionally, other remedies are available to resolve any possible errors in crediting Salinas’ sentence. See Tex. Crim. Proc. Code Ann. art. 11.07 (Vernon 2005); Tex. Gov’t Code Ann. § 501.0081 (Vernon 2004). Accordingly, Salinas’ petition for a writ of mandamus is denied. See Tex. R. App. P. 52.8(a).