in Re Joe Alvin Tarver

• Court: Court of Appeals of Texas
• Decided: August 4, 2022
• Docket: 01-21-00724-CR
• Status: Published

Opinion

Opinion issued August 4, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00724-CR —————————— IN RE JOE ALVIN TARVER, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Joe Alvin Tarver, has filed a petition for writ of mandamus

challenging the trial court’s nunc pro tunc judgment because it did not reflect “74

days of [additional] jail[-]time credit.”1

We deny the petition.

1 The underlying case is The State of Texas v. Joe Alvin Tarver, Cause No. 2010R-0075, pending in the 155th District Court of Austin County, Texas, the Honorable Jeff R. Steinhauser, presiding. Background

In trial court cause number 2010R-0075, an Austin County Grand Jury issued

a true bill of indictment, alleging that relator, on or about June 27, 2010, “unlawfully

appropriate[d], by acquiring or otherwise exercising control over property, to-wit:

tools, of the value of $1,500.00 or more but less than $20,000.00 from H. Stern, the

owner thereof, without the effective consent of the owner, and with [the] intent to

deprive the owner of the property” (the “underlying case”).2 In 2013, after relator,

with an agreed punishment recommendation from the State, pleaded guilty to the

felony offense of theft, the trial court assessed his punishment at confinement for

two years, suspended the sentence, placed him on community supervision for five

years, and ordered that he pay $11,035.00 in restitution.

Later, in 2018, the State filed a motion to revoke relator’s community

supervision, alleging that relator had violated certain conditions of his community

supervision. At the October 30, 2018 hearing on the State’s motion, relator pleaded

true to the allegations in the State’s motion that he had violated certain conditions of

his community supervision. The State, at the hearing, informed the trial court that

in exchange for relator’s plea of true to the allegations in the State’s motion to

revoke, it recommended that punishment against relator be assessed at confinement

for twelve months, with a credit for 180 days already served. The State also

2 See TEX. PENAL CODE ANN. § 31.03(a), (e)(4).

2 recommended that relator be given a $20,000 personal recognizance bond and be

allowed to wait to begin serving his sentence until November 12, 2018. The trial

court accepted relator’s plea of true, found true the allegations in the State’s motion

that relator had violated certain conditions of his community supervision, revoked

relator’s community supervision, and assessed relator’s punishment at confinement

for twelve months, with a credit for 180 days already served. The trial court also

granted relator a $20,000 personal recognizance bond and ordered him to report to

the “Austin County Jail” “no later than November 12, 2018 at 7:00 p.m.” The trial

court told relator that if he failed to report as ordered “a separate felony

[offense] . . . could be filed against [him] for [his] failure to appear on or before that

time.”

The trial court’s judgment, signed by the trial court on October 30, 2018, was

consistent with the parties’ agreement and assessed relator’s punishment at

confinement for twelve months, with a credit for 180 days already served. The

judgment also stated for the “Date Sentence to Commence: November 12, 2018.”

Relator did not report to the Austin County Jail as ordered. On November 28,

2018, in trial court cause number 2018R-0155, an Austin County Grand Jury issued

a true bill of indictment, alleging that on or about November 12, 2018, relator

intentionally or knowingly escape[d] from the custody of Elivaldo Paredes; who was then and there Captain of the Austin County Jail, Austin County, Texas, when [relator] was in custody pursuant to a lawful order of a court, to-wit: Judgment Revoking Community 3 Supervision on Case No. 2010R-0075 wherein Judge Jeff Steinhauser imposed a 12[-]month sentence on October 30, 2018 and granted [relator] a furlough, ordering [relator] to turn himself in to the Austin County Jail on November 12, 2018.

Relator was arrested on December 17, 2020 for the felony offense of escape from

custody (the “escape charge”).3 On January 15, 2021, relator was released from

custody on bond related to the escape charge.

In June 2021, relator failed to appear in the trial court related to the escape

charge. After a warrant was issued for relator’s arrest, relator was arrested on July

24, 2021 and transferred to the Austin County Jail in August 2021. Relator was also

charged, in trial court cause number 2021R-0085, with the felony offense of bail

jumping and failure to appear related to his failure to appear in the trial court in June

2021 (the “failure-to-appear charge”).4

Once relator was in custody, on September 7, 2021, the State filed a Motion

to Enter Nunc Pro Tunc Judgment in trial court cause number 2010R-0075—the

underlying case. The State’s motion explained that relator’s “sentence [in the

underlying case had been] set to commence on November 12, 2018,” but relator

“never appeared on November 12, 2018[] to begin his sentence.” Relator was

subsequently arrested in July 2021 and transferred to the Austin County Jail in

August 2021, but he “ha[d] not served his sentence in th[e] [underlying] case as

3 See id. § 38.06(a), (c). 4 See id. § 38.10(a), (f). 4 [previously] ordered” by the trial court on October 30, 2018. The State requested

that the trial court amend its October 30, 2018 judgment to change the date relator’s

sentence was to begin from November 12, 2018 to September 7, 2021.

At the hearing on the State’s motion, relator asked the trial court to give him

additional credit in its judgment for the approximately seventy-four days he spent in

jail related to the escape charge and the failure-to-appear charge. The trial court

denied appellant’s credit request. It granted the State’s motion and reformed its

October 30, 2018 judgment to state: “Date Sentence to Commence: September 7,

2021.”

Standard of Review

Mandamus relief is available in a criminal case when (1) the relator has shown

that no other adequate remedy at law is available and (2) the act the relator seeks to

compel is ministerial, not discretionary. Braxton v. Dunn, 803 S.W.2d 318, 320

(Tex. Crim. App. 1991); In re State ex rel. Wice, 629 S.W.3d 715, 720–21 (Tex.

App.—Houston [1st Dist.] 2021, orig. proceeding). An act is ministerial if it does

not involve the exercise of discretion. State ex rel. Hill v. Court of Appeals for Fifth

Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001); Tex. Dep’t of Corrections v.

Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981) (act is ministerial “where

the law clearly spells out the duty to be performed . . . with such certainty that

nothing is left to the exercise of discretion or judgment”). “[T]he relator must have

5 a clear right to the relief sought, meaning that the merits of the relief sought are

beyond dispute.” In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013)

(internal quotations omitted). As to a credit for time already served, “[a] motion for

judgment nunc pro tunc in the trial court, or writ of mandamus in the appellate court

if such a motion is denied, will provide a remedy” only if the defendant’s right to a

credit for time served is “absolutely indisputable.” In re Brown, 343 S.W.3d 803,

804 (Tex. Crim. App. 2011).

Credit for Time Served

In his sole issue, relator argues that the trial court erred in entering a nunc pro

tunc judgment that did not reflect “74 days of [additional] jail[-]time credit” for the

time he served in jail related to the escape charge and the failure-to-appear charge

because that time was served after the trial court signed its October 30, 2018

judgment in the underlying case.

Texas Code of Criminal Procedure article 42.03, section 2(a)(1) provides:

In all criminal cases the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant’s sentence for the time that the defendant has spent . . . in jail for the case . . . from the time of his arrest and confinement until his sentence by the trial court.

TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1).

Mandamus relief from an alleged denial of a credit for time served is available

only if “a defendant can show indisputably” that the denial of the credit was “for a

6 period of pre-trial incarceration for the identical case for which he was convicted

and sentenced.” In re Brown, 343 S.W.3d at 805. Here, the time for which relator

seeks a credit was served related to his two separate charges for the felony offense

of escape from custody and the felony offense of bail jumping and failure to appear.

Those charges involved conduct by relator that occurred after the trial court signed

its October 30, 2018 judgment and assessed relator’s punishment in the underlying

case. Cf. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1); In re Ralston, Nos.

12-22-00060-CR, 12-22-00061-CR, 2022 WL 1121050, at *1 (Tex. App.—Tyler

Apr. 14, 2022, orig. proceeding) (mem. op., not designated for publication) (“Based

on [a]rticle 42.03’s plain language, the credit at issue relates not just to any time the

defendant spent incarcerated . . . . Rather, it is the time [he was] incarcerated for the

case in which he [was] ultimately tried and convicted. The statute’s language does

not authorize time credit in one case for confinement in another case.” (internal

quotations and citations omitted)). And whether relator was entitled to a time-served

credit in the underlying case for the time he spent in jail related to the escape charge

and the failure-to-appear charge was a question of statutory construction and a matter

for judicial determination that required the trial court to consider conflicting legal

claims; it involved a manifestly judicial function rather than a ministerial one. See

In re Brown, 343 S.W.3d at 804–05 (“At issue in this case . . . is whether the relator’s

incarceration under the original murder indictment should count as incarceration of

7 the same ‘case’ as the tampering of evidence ‘case’ for which he was later indicted

and convicted. It does not seem to be disputed that the murder and evidence

tampering arose from the same core facts. Whether that should suffice to render

them the same ‘case’ for purposes of [a]rticle 42.03, [s]ection 2(a)(1), however, is a

matter of statutory construction—manifestly a judicial rather than a ministerial

function.”); see also In re Sanchez, Nos. 14-17-00273-CR, 14-17-00274-CR, 2017

WL 1573482, at *1–2 (Tex. App.—Houston [14th Dist.] Apr. 27, 2017, orig.

proceeding) (mem. op., not designated for publication); In re Pinto, No.

04-13-00389-CR, 2013 WL 3422971, at *1–2 (Tex. App.—San Antonio July 3,

2013, orig. proceeding) (mem. op., not designated for publication). Because relator

seeks to compel a non-ministerial act, we hold that he is not entitled to mandamus

relief.

Conclusion

We deny the petition for writ of mandamus. All pending motions are

dismissed as moot.

Julie Countiss Justice

Panel consists of Chief Justice Radack and Justices Countiss and Farris.

Do not publish. TEX. R. APP. P. 47.2(b). 8