in Re: William Sedric Autrey ( 2022 )

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).
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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
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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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