in Re John Bryant Riffe ( 2012 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00355-CV
In re John Bryant Riffe
ORIGINAL PROCEEDING FROM COMAL COUNTY
MEMORANDUM OPINION
Relator John Brant Riffe, an inmate in the Texas Department of Criminal Justice,
filed a pro se petition for writ of mandamus asking this Court to compel the trial court to enter a nunc
pro tunc judgment modifying his judgment of conviction to reflect purportedly missing presentence
jail-time credit. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2010); Tex. R. App. P. 52; see
also Tex. R. App. P. 23. We deny the petition.
A trial court is required to grant a defendant presentence jail time credit when the
sentence is pronounced. Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (West Supp. 2011); Ex parte
Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). Thus, whenever a defendant can show
indisputably that he has been denied jail-time credit for a period of pretrial incarceration, he is
entitled to relief from the convicting court in the form of a judgment nunc pro tunc and, failing that,
by writ of mandamus in the court of appeals. In re Brown, 343 S.W.3d 803, 805 (Tex. Crim. App.
2011); Ybarra, 149 S.W.3d at 148.
However, to obtain mandamus relief for the trial court’s refusal to rule on a motion, a
relator must establish: (1) the motion was properly filed and has been pending for a reasonable time;
(2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. In re Sarkissian,
243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685
(Tex. App.—San Antonio 2004, orig. proceeding). A relator must show that the trial court received,
was aware of, and was asked to rule on the motion. In re Blakeney, 254 S.W.3d 659, 661 (Tex.
App.—Texarkana 2008, orig. proceeding).
Further, it is relator’s burden to properly request and show entitlement to mandamus
relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); In re Davidson, 153 S.W.3d 490, 491
(Tex. App.—Amarillo 2004, orig. proceeding); see 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 this regard, the relator must
provide the reviewing court with a record sufficient to establish his right to mandamus relief. See
Walker, 827 S.W.2d at 837; Blakeney, 254 S.W.3d at 661; see also Tex. R. App. P. 52.7(a) (relator
must file with petition “a certified or sworn copy of every document that is material to the relator’s
claim for relief and that was filed in any underlying proceeding”), 52.3(k) (specifying the required
contents for the appendix), 52.7(a) (specifying the required contents for the record).
Here, Riffe asserts that he filed his motion on April 7, 2012 and again on May 7, 2012.
However, he has failed to provide this Court with a file-stamped copy of the motion or any other
documents to show that a properly filed motion is pending before the trial court.1 Consequently,
there is no way for us to determine whether the motion was properly filed or, if it was, the date on
1
In support of his petition for writ of mandamus, Riffe attached a document entitled “Motion
for Judgment Nunc-Pro-Tunc.” However, this document is not file-marked by the district clerk. No
other document or record of proceedings is attached to or furnished in support of the petition.
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which it was received by either the clerk’s office or the judge. Even if we assume that the motion
was properly filed, Riffe has not demonstrated that the motion has been brought to the trial court’s
attention or that the court is aware of the motion. See Hearn, 137 S.W.3d at 685 (simply filing
matter with district clerk is not sufficient to impute knowledge of pending pleading to trial court).
In addition, Riffe has failed to provide any correspondence to the district court requesting a ruling
on the motion or any other document that shows that he brought the motion to the attention of the
trial court. See id. (mere filing of motion with trial court clerk does not constitute request that trial
court rule on motion). Finally, Riffe has failed to provide anything indicating that the trial court has
refused to rule on the motion, or failed to rule within a reasonable time. Absent a showing that the
trial court is aware of the motion, has been asked to rule on his request, and refused to do so, Riffe
has not established entitlement to the extraordinary relief of a writ of mandamus. See In re Salazar,
No. 03-11-00550-CV, 2011 WL 4507296, at *1 (Tex. App.—Austin Sept. 30, 2011, orig. proceeding)
(mem. op., not designated for publication) (mandamus relief denied because relator failed to provide
copy of motion, any correspondence to district court requesting ruling on motion, or anything
indicating district court refused to rule on motion).
Furthermore, Riffe has failed to provide this Court with any documentation to support
his claim that he is entitled to presentence jail-time credit. He failed to provide a copy of the
judgment of conviction or any record reflecting how much jail-time credit he was entitled to, if any,
and how much jail-time credit he actually received, if any. Consequently, Riffe has failed to provide
a sufficient record for us to determine that he is indisputably entitled to the jail-time credit he seeks.
See In re Garza, No. 03-11-00820-CV, 2012 WL 512678, at *3 (Tex. App.—Austin Feb. 15, 2012,
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orig. proceeding) (mem. op., not designated for publication) (mandamus relief denied because relator
failed to provide sufficient record demonstrating indisputable entitlement to jail-time credit).
Accordingly, we deny Riffe’s petition for writ of mandamus.
__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Henson and Goodwin
Filed: June 12, 2012
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