Mohsen, Rocky Mohammad

• Court: Court of Criminal Appeals of Texas
• Decided: January 26, 2011
• Docket: WR-74,278-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-74,278-01

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EX PARTE ROCKY MOHAMMAD MOHSEN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 4337 IN THE 84^TH JUDICIAL DISTRICT COURT

FROM OCHILTREE COUNTY

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           Per curiam.

O R D E R

            Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession with intent to deliver a controlled substance and sentenced to fifteen years’ imprisonment.

            On September 15, 2010, this Court remanded this application to the trial court for findings of fact and conclusion of law. On December 13, 2010, the trial court made findings of fact and conclusions of law that were based on the application, official court documents and records, trial exhibits, the reporter’s record, affidavits, and the trial court’s personal experience and knowledge. The trial court recommended that relief be denied.

            We agree with the trial court’s findings of fact, conclusions of law and recommendation with respect to Applicant’s grounds raising substantive challenges to the merits of his conviction. However, Applicant also raised a claim that he was being improperly denied credit for pre-sentencing jail time credit. Although it appears that Applicant has filed a motion for judgment nunc pro tunc in the trial court, if the trial court fails to respond Applicant is first required to seek relief in the court of appeals by way of a petition for a writ of mandamus unless there is a compelling reason not to do so. Ex parte Ybarra, 149 S.W.3d 147, 148-149 (Tex. Crim. App. 2004). We therefore deny relief with respect to Applicant’s first through seventh and ninth grounds for review. Applicant’s eighth ground is dismissed pursuant to Ex parte Ybarra.

Filed: January 26, 2011

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