in Re Mark Ramirez ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00277-CR
IN RE MARK RAMIREZ
Original Proceeding
OPINION
Mark Ramirez, an inmate, seeks a writ of mandamus from this Court directing
Respondent, the Honorable Erwin Ernst, as Judge of the 12th Judicial District Court of
Walker County, to rule on Ramirez’s Motion for Judgment Nunc Pro Tunc and to grant
Ramirez’s requested additional jail time credit. The Honorable Donald Kraemer is the
elected judge of the 12th Judicial District Court. We abated this proceeding to give
Ramirez the opportunity to clarify the record for us, and to amend his petition, if
necessary. He clarified the record but did not amend his petition.
Based on the clarification, Judge Ernst presided over Ramirez’s trial court
proceeding as an assigned judge and signed the judgment revoking his community
supervision for the offense of robbery on April 23, 2008. Ramirez’ clarification also
shows that Judge Kraemer was presented with Ramirez’s motion nunc pro tunc and
“declined” to rule on the motion.
Because the motion was presented to Judge Kraemer who then declined to rule
on it, Ramirez’ petition should have alleged Judge Kraemer as the party against whom
relief is sought. See TEX. R. APP. P. 7.2(b); In re Whitfield, 134 S.W.3d 314 (Tex. App.—
Waco 2003, order); see also In re McDaniel, No. 10-04-00166-CV (Tex. App.—Waco Oct. 5,
2005, order) (not designated for publication). Alternatively, had Ramirez determined
Judge Ernst was the proper judge to rule on his motion nunc pro tunc, Judge Ernst
should have been presented with the motion and provided an opportunity to rule on it.
See In re Hearn, 137 S.W.3d 681 (Tex. App.—San Antonio 2004, orig. proceeding).
Because the conditions of either alternative have not been met, Ramirez’ petition
is denied.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied
Opinion delivered and filed September 27, 2012
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[OT06]
In re Ramirez Page 2