in Re Howard L. Grant

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-372 CV

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IN RE HOWARD L. GRANT

Original Proceeding

MEMORANDUM OPINION

Howard L. Grant petitioned the Court for a writ of mandamus to compel the trial court to delete a deadly weapon finding by issuing a judgment nunc pro tunc. ⁽¹⁾ His motion to the trial court avers that the jury did not affirmatively find the use of a deadly weapon as required by Polk v. State, 693 S.W.2d 394 (Tex. Crim. App. 1985). In denying the motion for judgment nunc pro tunc, the trial court found that the application paragraph of the jury charge authorized the jury to convict if it found that the defendant caused the death of the complainant by shooting him with a deadly weapon, namely a firearm. A deadly weapon finding is authorized. Lafleur v. State, 106 S.W.3d 91, 98-99 (Tex. Crim. App. 2003).

We may grant mandamus relief if relator demonstrates that the act sought to be compelled is purely ministerial under the relevant facts and law, and that relator has no other adequate legal remedy. State ex. rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). An act is "ministerial" if it does not involve the exercise of any discretion or the relator's entitlement to the relief sought is clear and indisputable such that its merits are beyond dispute. Id. at 927-28. In this case, the relator has not shown that he is entitled to the relief sought.

The petition for writ of mandamus is therefore denied.

WRIT DENIED.

PER CURIAM

Opinion Delivered August 25, 2005

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

1. Grant's conviction for voluntary manslaughter was affirmed by this Court in 1997. Grant v. State, 950 S.W.2d 450 (Tex. App.--Beaumont 1997, pet. ref'd).