in Re James Steven Kerr ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-20-00007-CR
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IN RE JAMES STEVEN KERR
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Original Proceeding
9th District Court of Montgomery County, Texas
Trial Cause No. 18-08-10492-CR
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MEMORANDUM OPINION
James Steven Kerr filed a petition for a writ of mandamus to compel the trial
court to rule on Kerr’s motion for a judgment nunc pro tunc. He argues an adequate
time to rule has elapsed without action by the trial court. Relator has failed to show
that the alleged error in the judgment was the result of clerical error rather than
judicial reasoning. Additionally, he has failed to show that the motion has been
before the trial court for an unreasonable length of time.
To obtain mandamus relief in a criminal case, the relator must show that he
does not have an adequate remedy at law and he seeks to compel a ministerial act
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not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial
Dist. Ct. of Apps., 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
To establish an abuse of discretion by the trial court in failing to rule on a motion,
the relator must establish that the trial court: (1) had a legal duty to perform a
ministerial act, (2) was asked to perform the act, and (3) failed or refused to do so
within a reasonable time. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo
2001, orig. proceeding).
The purpose of a judgment nunc pro tunc is to correct the record when there
is a discrepancy between the judgment as pronounced and written judgment in the
record. Blanton v. State, 369 S.W.3d 894, 897-98 (Tex. Crim. App. 2012). Because
corrections to the record are limited to clerical errors and are not appropriate for
errors of judicial reasoning, a judgment nunc pro tunc is improper if it alters the
original judgment pronounced in court. Id. at 898.
The appendix to Kerr’s mandamus petition includes a photocopy of a page
from a judgment that states that Kerr pleaded guilty and on May 23, 2019, he was
sentenced to eight years of confinement for “Aggravated Assault Family Violence –
Threaten with Deadly Weapon” with an affirmative finding of the use of a deadly
weapon, a firearm. The appendix includes a copy of a motion for judgment nunc pro
tunc in which Kerr argued that the deadly weapon finding should be deleted because
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prior to sentencing the complaining witness signed an affidavit of non-prosecution
and he argues she recanted her previous statement regarding Kerr’s use of a rifle. In
his motion, Kerr did not claim that the written judgment fails to reflect what actually
occurred at sentencing. On November 26, 2019, the district clerk acknowledged the
filing of a motion by Kerr. According to Kerr, he requested that his motion for
judgment nunc pro tunc be submitted on December 23, 2019.
Based on the record now before us, Relator has failed to show that he is
entitled to a judgment nunc pro tunc. Relator has also failed to show that the trial
court has refused to rule on Relator’s motion for a judgment nunc pro tunc within a
reasonable time. Such a showing is required to obtain mandamus relief. See Young,
236 S.W.3d at 210; Chavez, 62 S.W.3d at 228. Accordingly, we deny the petition
for a writ of mandamus. See Tex. R. App. P. 52.8(a).
PETITION DENIED.
PER CURIAM
Submitted on January 21, 2020
Opinion Delivered January 22, 2020
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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