Petition for Writ of Mandamus Denied and Memorandum Opinion filed
May 22, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-01001-CR
NO. 14-13-01002-CR
NO. 14-13-01003-CR
IN RE TODD W. ALTSCHUL, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
23rd District Court
Brazoria County, Texas
Trial Court Cause Nos. 23557, 26672, 26673
MEMORANDUM OPINION
On October 23, 2013, relator Todd W. Altschul filed a notice of appeal
challenging an order of the Honorable Ben Hardin, presiding judge of the 23rd
District Court of Brazoria County, denying relator’s motion for judgment nunc pro
tunc. Relator subsequently filed with this Court a motion to construe his notice of
appeal as a petition for writ of mandamus. See Tex. Gov’t Code § 22.221; see also
Tex. R. App. P. 52. This Court granted relator’s motion on April 15, 2014. In his
petition, relator asks this Court to compel the trial court to vacate identical orders
in each of the three underlying criminal cases in which the trial court denied
relator’s motion for judgment nunc pro tunc to receive appeal time credit on his
sentences. We deny relator’s petition.
BACKGROUND
On or about May 21, 1992, relator was convicted in trial court cause no.
23557 of possession of a deadly weapon in a penal institution and sentenced to 15
years imprisonment. On or about July 28, 1994, relator was convicted in trial court
cause no. 26672 of aggravated assault, and was convicted in trial court cause no.
26673 of possession of a deadly weapon in a penal institution. Relator was
sentenced to 20 years imprisonment for these subsequent offenses, with the
sentence to run consecutive to his earlier sentence.
Relator claims that he was in the Brazoria County Jail from September 10,
1992, when the trial court apparently issued a bench warrant, through June 17,
1997, when relator was transferred to the custody of the Texas Department of
Criminal Justice (“TDCJ”). Relator claims that during the entirety of this period he
was awaiting disposition of his appeal in cause no. 23557, and that he likewise was
awaiting disposition of his appeals in cause nos. 26672 and 26673 from the date of
his sentencing in those cases (July 28, 1994) through the end of the period (June
17, 1997). Relator claims both processing errors by the trial court and failings of
his counsel led to his notices of appeal in the three underlying cases not being filed
with this Court until May 1997.
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On May 22, 2013, relator filed a motion with the trial court for judgment
nunc pro tunc, claiming he has not received appeal time credit in his respective
cases for the time he was in the Brazoria County Jail from September 10, 1992
through June 17, 1997 in accordance with article 42.03, section 3 of the Texas
Code of Criminal Procedure. On October 9, 2013, the trial court signed an order
denying relator’s motion in cause no. 23557. The trial court subsequently signed
on February 6, 2014 identical orders denying relator’s motion in cause nos. 26672
and 26673.
THE MANDAMUS STANDARD
To be entitled to mandamus relief with respect to a criminal law matter,
relator must show that he has no adequate remedy at law to redress his alleged
harm, and that what he seeks to compel is a ministerial act. State ex rel. Young v.
Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex.
Crim. App. 2007) (orig. proceeding). “If there is any discretion or judicial
determination attendant to the act, it is not ministerial in nature. Nor is a ministerial
act implicated if the trial court must weigh conflicting claims or collateral matters
which require legal resolution.” State ex rel. Hill v. Court of Appeals for the Fifth
Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding) (quoting
State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig.
proceeding) (op. on reh’g)). “The relief sought must be ‘clear and indisputable’
such that its merits are ‘beyond dispute.’” Hill, 34 S.W.3d at 927–28 (quoting State
ex rel. Wade v. Mays, 689 S.W.2d 893, 899 (Tex. Crim. App. 1985) (orig.
proceeding)). It is relator’s burden to provide this Court with a sufficient record to
establish the right to mandamus relief. See Young, 236 S.W.3d at 210; see also
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Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); Tex. R.
App. P. 52.3(k), 52.7(a).
ANALYSIS
Relator fails to satisfy his burden to demonstrate entitlement to mandamus
relief.1 Although the documents included in the record provide some indication that
relator was housed in the Brazoria County Jail from September 10, 1992 through
June 17, 1997, the record does not show the trial court failed to perform a
ministerial duty in denying relator’s motion for judgment nunc pro tunc.
First, nothing in record shows that relator has been denied any credit for
time served. To the contrary, the TDCJ records provided by relator reflect “flat
time” credit for the entire period of time relator claims to have been in the Brazoria
County jail from 1992 to 1997.
Second, even if there were some discrepancy in the computation of relator’s
jail time, relator has not established that he is eligible for appeal time credit for the
period in question. The plain language of the statute is limited to circumstances
1
Relator has not filed in this proceeding a copy of the trial court’s February 6, 2014
orders denying relator’s motion for judgment nunc pro tunc in cause nos. 26672 and 26673. It is
an essential prerequisite for a relator seeking mandamus relief from a trial court order to include
in the appendix to the mandamus petition either the signed order of the court or a copy of the
reporter’s record indicating the court’s rendition. See In re Bill Heard Chevrolet, Ltd., 209
S.W.3d 311, 316 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding); see also Tex. R. App.
P. 52.3(k)(1)(A) (providing that a relator must include “a certified or sworn copy of any order
complained of, or any other document showing the matter complained of.”). Although relator’s
omission of the trial court’s orders would be a sufficient basis to deny the mandamus petition as
it pertains to cause nos. 26672 and 26673, the orders in question were filed with this Court in an
earlier mandamus proceeding filed by relator. Thus, we elect to take judicial notice of the record
in the earlier mandamus proceeding, and therefore will reach the merits of relator’s petition in
this proceeding.
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where a defendant “appeals his conviction . . . and is retained in jail . . . pending
his appeal.” Tex. Code Crim. Proc. art. 42.03, § 3. But relator admits problems
occurred regarding his attempted appeals, and that the appeals were not even filed
until May 1997. Relator does not provide any direct documentation pertaining to
his appeals or the events surrounding the appeals, or citations to applicable legal
precedent, that demonstrate relator is entitled to appeal time credit under article
42.03, section 3 given his particular circumstances during the time he appears to
have been in the Brazoria County Jail.
“A motion for judgment nunc pro tunc or a writ of mandamus to the
appellate court if such a motion is denied will provide a remedy only if the right to
. . . jail-time credit is absolutely indisputable . . . .” In re Brown, 343 S.W.3d 803,
804 (Tex. Crim. App. 2011) (per curiam) (orig. proceeding); see also Hill, 34
S.W.3d at 927–28 (“The relief sought must be clear and indisputable such that its
merits are beyond dispute.”) (internal quotations omitted). Relator’s right to jail
time credit is not indisputable. Thus, relator has not shown that the trial court failed
to perform a ministerial duty, and, consequently, relator is not entitled to
mandamus relief.
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CONCLUSION
Relator has failed to satisfy his burden to demonstrate entitlement to
mandamus relief. Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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