in Re Martin Allen Camacho

• Court: Court of Appeals of Texas
• Decided: June 2, 2011
• Docket: 13-11-00342-CR
• Status: Published

Opinion

NUMBER 13-11-00342-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE MARTIN ALLEN CAMACHO

On Petition for Writ of Mandamus and/or Writ of Prohibition.

MEMORANDUM OPINION

Before Justices Benavides, Vela, and Perkes Memorandum Opinion Per Curiam1

Relator, Martin Allen Camacho, proceeding pro se, filed a petition for writ of

mandamus and prohibition on June 1, 2011 through which he seeks to compel the trial

court to grant him presentence time credit. We deny the petition.

To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007). If relator fails to meet both of these requirements, then the petition for writ

of mandamus should be denied. See id. Presentence time credit claims typically must

be raised by a motion for judgment nunc pro tunc filed with the clerk of the convicting

trial court, and if the trial court denies the motion for judgment nunc pro tunc or fails to

respond, relief may be sought by filing a petition for writ of mandamus in the court of

appeals. See Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010) (per

curiam).

It is relator’s burden to properly request and show entitlement to mandamus

relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig.

proceeding) (“Even a pro se applicant for a writ of mandamus must show himself

entitled to the extraordinary relief he seeks.”). In addition to other requirements, relator

must include a statement of facts supported by citations to “competent evidence

included in the appendix or record,” and must also provide “a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, it is clear that

relator must furnish an appendix or record sufficient to support the claim for mandamus

relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a)

(specifying the required contents for the record).

Relator alleges here that he filed a judgment nunc pro tunc motion in September

2008 and the trial court denied that motion on September 13, 2010. The record relator

has provided includes the file-stamped motion for judgment nunc pro tunc and the file-

stamped order memorializing the trial court's ruling. See TEX. R. APP. P. 52.7(a)(1).

2 However, the record provided lacks any other documents, including any documentation

verifying the dates and events alleged to be the basis for relator's claim for additional

presentence time credit. See id.

The Court, having examined and fully considered the petition for writ of

mandamus and prohibition and the applicable law, is of the opinion that relator has not

met his burden to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210.

A relator must furnish a record sufficient to support his claim for mandamus relief. See

TEX. R. APP. P. 52.7(a). Since relator has not furnished such a record, we cannot

conclude that he is entitled to mandamus relief. Accordingly, relator’s petition for writ of

mandamus and prohibition is denied. See id. 52.8(a).

PER CURIAM

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

Delivered and filed the 2nd day of June, 2011.