in Re Amir Ben-David ( 2019 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
December 31, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00948-CR
IN RE AMIR BEN-DAVID, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
351st District Court
Harris County, Texas
Trial Court Cause No. 1538891
MEMORANDUM OPINION
On December 2, 2019, relator Amir Ben-David filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this court to compel the Honorable George Powell,
presiding judge of the 351st District Court of Harris County, to answer relator’s
motion for nunc pro tunc for credit for pre-sentence time served.
To be entitled to mandamus relief, a relator must show (1) that the relator has
no adequate remedy at law for obtaining the relief the relator seeks and (2) what the
relator seeks to compel involves a ministerial act rather than a discretionary act. In
re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). A
defendant is entitled to credit on his sentence for any time spent in jail from the time
of his arrest until his sentence. Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a). The
trial court is required to grant such jail-time credit when the sentence is pronounced.
Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). If the court fails to
do so, the defendant may file a motion with the convicting court requesting that it
correct the error by entering a judgment nunc pro tunc. Id. Because the law requires
the trial court to award credit for presentence time served, the court’s failure to do
so violates a ministerial duty. In re Daisy, 156 S.W.3d 922, 924 (Tex. App.—Dallas
2005, orig. proceeding). A defendant is entitled to mandamus relief upon denial of
a motion for judgment nunc pro tunc when he can show indisputably that he is
entitled to the requested credit for pre-trial jail time. In re Brown, 343 S.W.3d 803,
804 (Tex. Crim. App. 2011).
A defendant may also seek mandamus relief if the trial court fails to respond
to a motion for nunc pro tunc. Ybarra, 149 S.W.3d 148–49. Relator states he filed
a motion for nunc pro tunc in the trial court in January 2019, but the trial court has
not ruled on his motion. The judgment attached to relator’s motion shows that relator
was given credit for time spent in jail from January 27, 2017 to June 12, 2018, or
502 days, when he was sentenced. Relator asserted in the motion that, due to the
trial court’s clerical error, the Texas Department of Criminal Justice’s (TDCJ)
records do not show that he served he served the 502 days prior to sentencing.
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However, the trial court’s judgment shows that relator was awarded the 502
days he served in jail prior to the imposition of his sentence. Relator’s real complaint
is that TDCJ’s records fail to show relator’s pre-trial time-served. We cannot tell
from the documents provided by relator whether TDCJ has or has not given relator
credit for his time served. Even if the mandamus record clearly showed that TDCJ
has failed to give relator credit for time served, we do not have mandamus
jurisdiction over TDCJ to compel it to take any action. See Tex. Gov’t Code Ann.
§ 22.221(b).
Because the judgment shows that the trial court awarded relator the 502 days
he was confined prior to the imposition of his sentence, relator has not shown that
he is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Zimmerer, Spain, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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