in Re Joseph Allen McLaren

• Court: Court of Appeals of Texas
• Decided: March 22, 2007
• Docket: 09-07-00148-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-07-148 CV

IN RE JOSEPH ALLEN MCLAREN

Original Proceeding

MEMORANDUM OPINION

Joseph Allen McLaren seeks mandamus relief to compel the trial court to credit time served while he was out on bond pending the appeal of his conviction for aggravated sexual assault. We affirmed the conviction on appeal. See McLaren v. State, 996 S.W.2d 404 (Tex. App.--Beaumont 1999, pet. ref'd). On November 21, 2006, the trial court denied McLaren's motion to amend the judgment nunc pro tunc.

McLaren bases his claim for relief on Article 42.03, which provides as follows: "If a defendant appeals his conviction, is not released on bail, and is retained in a jail as provided in Section 7, Article 42.09, pending his appeal, the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail pending disposition of his appeal." Tex. Code Crim. Proc. Ann. art. 42.03, § 3 (Vernon 2006). McLaren admits he was released on bail pending appeal and was not in jail for the period of time between November 13, 1997, and June 21, 2000. Article 42.03 requires that credit shall be given for time spent in jail. Id. McLaren was not in jail during the time for which he seeks credit.

The trial court has the authority to correct the omission of presentence jail credit through judgment nunc pro tunc. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). Mandamus is available to compel the trial court to respond to a nunc pro tunc motion for presentence jail credit. Id. at 149. In this case, however, the relator has not shown that he is entitled to the relief sought or that the motion awaited disposition for an unreasonable length of time under the circumstances. See Ex parte Bates, 65 S.W.3d 133, 134-35 (Tex. App.--Amarillo 2001, orig. proceeding). Moreover, McLaren failed to demonstrate that the act sought to be compelled is purely ministerial and the relator has a clear and indisputable right to relief. See State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927-28 (Tex. Crim. App. 2001). The petition for writ of mandamus, filed March 15, 2007, is denied.

WRIT DENIED

PER CURIAM

Opinion Delivered March 22, 2007

Before Gaultney, Kreger, and Horton, JJ.