in Re Dwayne T. Davis

• Court: Court of Appeals of Texas
• Decided: March 27, 2013
• Docket: 09-13-00098-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00098-CR ____________________

IN RE DWAYNE T. DAVIS

_______________________________________________________ ______________

Original Proceeding ________________________________________________________ _____________

MEMORANDUM OPINION

Dwayne T. Davis filed a petition for writ of mandamus in which he seeks to

compel the trial court to vacate an order denying Davis’s request for time credit on

his sentence for possession of a deadly weapon in a penal institution and to sign a

judgment nunc pro tunc giving Davis credit on his sentence from the date of his

arrest, July 18, 1996, to the date of his indictment, June 5, 1997. “A motion for

judgment nunc pro tunc or a writ of mandamus to the appellate court if such a

motion is denied will provide a remedy only if the right to pre-trial jail-time credit

is absolutely indisputable under the terms of Article 42.03, Section 2(a)(1).” In re

1 Brown, 343 S.W.3d 803, 804 (Tex. Crim. App. 2011); see also Tex. Code Crim.

Proc. Ann. art. 42.03, § 2(a)(1) (West Supp. 2012). A prisoner confined by another

jurisdiction is confined for purposes of article 42.03 “only if a detainer or hold is

lodged against him.” Nixon v. State, 572 S.W.2d 699, 701 (Tex. Crim. App. 1978).

Davis has not shown that he was in constructive custody of Polk County when he

was confined in prison prior to his indictment in this case. See Ex parte Kuban, 763

S.W.2d 426, 427 (Tex. Crim. App. 1989). Davis failed to establish that he has a

right to relief. Accordingly, the petition for writ of mandamus is denied.

PETITION DENIED.

PER CURIAM

Opinion Delivered March 27, 2013 Do not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.