in Re: William Sedric Autrey

• Court: Court of Appeals of Texas
• Decided: October 5, 2022
• Docket: 05-22-01009-CV
• Status: Published

Opinion

DENIED and Opinion Filed October 5, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01009-CV

IN RE WILLIAM SEDRIC AUTREY, Relator

Original Proceeding from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 429-81194-10

MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Garcia Opinion by Justice Molberg After a bench trial in 2014, relator was convicted on four counts of engaging

in organized criminal activity and given four consecutive life sentences. Although

relator appealed his convictions, we dismissed the appeal at relator’s request. See

Autrey v. State, No. 05-14-01381-CR, 2015 WL 5883730, at *1 (Tex. App.—Dallas

Oct. 8, 2015, no pet.) (per curiam) (mem. op., not designated for publication).

On September 28, 2022, relator filed a petition for writ of mandamus in this

Court, arguing that the trial court improperly cumulated his sentences. Relator

argues that “on or about March/April 2022,” he submitted a “Nunc Pro Tunc

Motion” in the trial court requesting relief from the “improper cumulation order” but the trial court has ignored his motion. Relator requests this Court to order the trial

court to delete the “cumulation order” and make all sentences run concurrently.

A petition seeking mandamus relief must include a certification stating that

the relator “has reviewed the petition and concluded that every factual statement in

the petition is supported by competent evidence included in the appendix or

record.” TEX. R. APP. P. 52.3(j). The certification must state substantially what is

written in rule 52.3(j). See In re Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas

2008, orig. proceeding).

Here, relator included an unsworn declaration that he “declare[s] under

penalty of perjury that the foregoing is true and correct.” Relator’s declaration does

not indicate that the statements in the petition are supported by competent evidence

included in the appendix or record. Thus, it does not meet rule 52.3(j)’s

requirements. See In re Phillips, Nos. 05-21-01068-CV, 05-21-01069-CV, 05-21-

01070-CV, 2022 WL 278240, at *1 (Tex. App.—Dallas Jan. 31, 2022, orig.

proceeding) (mem. op.); In re Robertson-El, No. 05-21-01067-CV, 2022 WL

131046, at *1 (Tex. App.—Dallas Jan. 14, 2022, orig. proceeding) (mem. op.).

Even if this deficiency did not exist, relator has not demonstrated entitlement

to mandamus relief. To establish a right to mandamus relief in a criminal case, the

relator must show that the trial court violated a ministerial duty and there is no

adequate remedy at law. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim.

App. 2013) (orig. proceeding).

–2– Relator asks this Court to compel the trial court to delete the “cumulation

order” and make all sentences run concurrently. Although we have the power to

compel a trial court to rule on a pending motion, we may not direct the trial court on

how to rule on a motion. See In re Green, No. 12-18-00227-CV, 2018 WL 4001783,

at *1 (Tex. App.—Tyler Aug. 22, 2018, orig. proceeding) (mem. op.); In re Charles,

No. 14-18-00343-CR, 2018 WL 2248276, at *2 (Tex. App.—Houston [14th Dist.]

May 17, 2018, orig. proceeding) (mem. op., not designated for publication).

To the extent relator’s petition could be construed as a request to compel the

trial court to rule on the “Nunc Pro Tunc Motion,” relator must show the trial court

has a ministerial duty to rule upon a properly filed and timely presented motion. In

re Guzman, No. 05-16-01109-CV, 2016 WL 5404625, at *1 (Tex. App.—Dallas

Sept. 28, 2016, orig. proceeding) (mem. op.). A nunc pro tunc motion is intended to

correct a clerical error in a judgment, and it may not be used to correct judicial errors.

Id. A trial court’s decision to cumulate a defendant’s sentences is a judicial

determination that may not be made through a nunc pro tunc order. Id. (citing In re

Madding, 70 S.W.3d 131, 135 n.8 (Tex. Crim. App. 2002) (improper cumulation

order is due-process error, not a mere clerical error)).

Here, relator’s “Nunc Pro Tunc Motion” sought to have the judgment reflect

that all sentences will run concurrently based on relator’s contention that the

consecutive sentences were not authorized by law. That is a request for correction

of an alleged judicial error and is, in substance, an application for post-conviction

–3– habeas corpus relief. See id. But the trial court does not have jurisdiction to grant the

relief requested. Id. Only the Texas Court of Criminal Appeals has jurisdiction to

grant post-conviction habeas corpus relief. Id. (citing In re Williams, 561 S.W.2d 1,

2 (Tex. Crim. App. 1978) (orig. proceeding)). Thus, the motion was not “properly

filed” and the trial court did not have a ministerial duty to rule on the motion. Id.

Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R.

APP. P. 52.8(a).

Also before the Court is relator’s September 28, 2022 motion requesting leave

to file his petition for writ of mandamus. This motion is not necessary to commence

an original proceeding. See TEX. R. APP. P. 52.1. Thus, we deny the motion as moot.

221009f.p05 /Ken Molberg// KEN MOLBERG JUSTICE

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