in Re Ernest Martin

• Court: Court of Appeals of Texas
• Decided: June 12, 2013
• Docket: 09-13-00258-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________

NO. 09-13-00258-CR _________________

IN RE ERNEST MARTIN

__________________________________________________________________

Original Proceeding __________________________________________________________________

MEMORANDUM OPINION

Relator Ernest Martin filed a petition for writ of mandamus asking this Court

to compel the trial court to address his motion for judgment nunc pro tunc, in

which Martin contended that there is no evidence to support his guilty plea or the

trial court’s deadly weapon finding and the indictment was void, making his

sentence illegal.

To obtain mandamus relief, Martin must show that he has a clear legal right

to the act sought to be compelled. See Banales v. Court of Appeals for the

Thirteenth Judicial Dist., 93 S.W.3d 33, 35 (Tex. Crim. App. 2002). Martin argues

that the trial court must act on his motion because the judgment contains mistakes,

1 which he has characterized as clerical. Generally, consideration of a properly filed

motion is ministerial. See State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.

Crim. App. 1987). However, Martin has not shown that an active proceeding exists

before the convicting court, since the judgment became final before he initiated the

proceedings that are the subject of his petition for mandamus. Habeas corpus

proceedings under article 11.07 of the Texas Code of Criminal Procedure provide

the exclusive post-conviction remedy for Martin’s complaints. See Tex. Code

Crim. Proc. Ann. art. 11.07 (West Supp. 2012). Even if we were to address

Martin’s arguments, it appears that the alleged errors of which Martin complains

were judicial decisions rather than clerical errors. A judgment nunc pro tunc is

appropriate only to correct a clerical error; that is, it cannot be used to correct a

judicial error. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994).

Relator has not demonstrated that he is entitled to mandamus relief. See

State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.

Crim. App. 2001) (To demonstrate entitlement to a writ of mandamus, a relator

must establish that the trial court failed to perform a ministerial duty, and that

relator has no other adequate legal remedy.). Accordingly, we deny relief on the

petition for writ of mandamus.

2 PETITION DENIED.

PER CURIAM

Opinion Delivered June 12, 2013 Before Gaultney, Kreger, and Horton, JJ. Do not publish