in Re Johanson L. Watson, Relator

NO. 07-11-0177-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 15, 2011
______________________________
IN RE JOHANSON LEE WATSON, RELATOR
_________________________________
ORIGINAL PROCEEDING ARISING FROM PROCEEDINGS
BEFORE THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NOS. 9479 & 9480; HONORABLE DAN MIKE BIRD JUDGE PRESIDING1
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
By this original proceeding, Relator, Johanson Lee Watson, an inmate
proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the
Honorable Dan Mike Bird, to hold a hearing on his Motion for Leave for Judgment Nunc
Pro Tunc. For the reasons expressed herein, we deny the requested relief.
Background
In 1997, Relator was indicted for sexual assault of a child in cause number 9479
and for burglary of a habitation in cause number 9480. The charges were enhanced
1
Judge Bird was the District Attorney for Wilbarger County when Relator was charged with the offenses
alleged in Cause Nos. 9479 and 9480 and he voluntarily recused himself from proceedings related to
those cause numbers.
with a prior burglary from 1987. In exchange for dismissal of the burglary of a habitation
charge,2 Relator pleaded guilty to the sexual assault charge and was sentenced to
twenty years confinement. No direct appeal from that conviction was filed.
At the sentencing hearing held on August 8, 1997, for the sexual assault
conviction, the Honorable Tom Neely opened the proceedings by announcing "[t]his is
Cause Number 9480, the State of Texas versus Johanson Lee Watson, also known as
Johanson 'Joe-Boy' Watson." The hearing proceeded and the trial court ruled as
follows:
the Court having found you guilty of the offense of sexual assault of a child
[cause number 9479] as alleged in the indictment, having found the
enhancement paragraph to be true, the Court assesses your punishment
at 20 years . . . .
Relator filed a Motion for Leave for Judgment Nunc Pro Tunc in the trial court on
January 18, 2011, arguing that the oral pronouncement in cause number 9480 from the
sentencing hearing in 1997 conflicted with the trial court's written judgment in cause
number 9479. He maintains he was sentenced to prison in cause number 9480, which
was dismissed in 1998.3 Relator alleges that on February 7, 2011, he corresponded
with the Wilbarger County District Clerk requesting a disposition on his motion.
On April 26, 2011, Relator filed a Petition for Writ of Mandamus in this Court
seeking to compel the trial court to rule on his pending motion. This Court requested a
2
The burglary of a habitation charge was dismissed by order dated July 21, 1998.
3
The written judgment and sentence in the sexual assault of a child case correctly reflects "Cause No.
9479."
2
response from Respondent. No response was filed; however, the trial court scheduled
a hearing to address Relator's motion.
On June 10, 2011, a hearing was held. The Honorable Stuart Messer presided
by assignment. See Tex. Gov't Code Ann. § 75.002(a)(3) (West 2005). Appellant and
his appointed counsel were present. After a brief hearing, the trial court ruled, "the plea
of guilty was obviously in 9479; the evidence was taken on the issue of punishment in
9479. I am not granting that nunc pro tunc . . . ." The trial court's denial of Relator's
motion was reduced to writing and filed with the trial court clerk on June 23, 2011.
Mandamus Standard of Review
Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone
Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "Mandamus issues only
to correct a clear abuse of discretion or the violation of a duty imposed by law when
there is no other adequate remedy by law.@ Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d
916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to mandamus relief, a
relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for
performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.
1979).
Discussion
Relator now has a ruling on the motion that was pending in the trial court. Any
dissatisfaction with the ruling is not the proper subject of a mandamus proceeding but
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may be remedied by ordinary appeal. See In re Washington, No. 09-07-00246-CV,
2007 Tex. App. LEXIS 6449, at *2 (Tex.App.--Beaumont Aug. 16, 2007, orig.
proceeding). Consequently, his request for relief is rendered moot and the petition for
writ of mandamus is denied.
Patrick A. Pirtle
Justice
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