In Re Brown
2011 Tex. Crim. App. LEXIS 498
| Tex. Crim. App. | 2011Background
- Brown seeks judgment nunc pro tunc for pre-trial jail-time credit on the murder case.
- The Fourteenth Court of Appeals denied mandamus relief; this Court denies relief as well.
- Relator was arrested July 12, 2006 for murder; in Dec. 2007, after co-defendant’s claim, he was re-indicted for tampering with evidence.
- Relator pled guilty to tampering with evidence under a plea that did not include pre-trial jail credit.
- Trial court sentenced him to ten years with credit for 78 days between re-indictment and sentencing and dismissed the murder indictment.
- Relator’s current counsel filed a motion for judgment nunc pro tunc, denied; mandamus sought in court of appeals, denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relator is entitled to jail-time credit for pre-trial incarceration on the murder case as the same case as tampering with evidence. | Brown contends he indisputably earned credit for the murder-time. | The issue is a judicial determination, not a ministerial act. | Not indisputable; court must decide statutory construction. |
| Whether mandamus or judgment nunc pro tunc can compel a trial court to award such credit when the issue is a judicial construction of the statute. | Relator seeks ministerial relief to correct the judgment. | Credit issue requires weighing legal claims by the trial court. | Not ministerial; remedy denied. |
| Whether post-conviction remedies are available to reframe pre-trial jail-credit issues in this context. | Post-conviction relief could address the issue. | Remedies are unavailable for this extraordinary circumstance. | Post-conviction remedies are not available for nunc pro tunc jail-credit relief. |
| Whether relator should have preserved the issue for appellate resolution rather than pursuing post-conviction relief. | Issue could be preserved for appellate review. | Judicial construction necessary; preserve at trial or appellate level. | Admonition to preserve issues for appellate review. |
Key Cases Cited
- Ex parte Florence, 319 S.W.3d 695 (Tex.Crim.App.2010) (ordinary remedy for denied pre-trial jail-time credit via motion nunc pro tunc; mandamus if denied on that remedy)
- In re Brown, 240 S.W.3d 925 (Tex.Crim.App.2007) (premise that magistrate cannot order nunc pro tunc when review involves judicial construction)
- Collins v. State, 240 S.W.3d 925 (Tex.Crim.App.2007) (premise that judicial errors are not ministerial and not subject to nunc pro tunc relief)
- Ex parte Ybarra, 149 S.W.3d 147 (Tex.Crim.App.2004) (mandamus requires ministerial act; not discretionary or judicial)
- Ex parte Deeringer, 210 S.W.3d 616 (Tex.Crim.App.2006) (same)
- Simon v. Levario, 306 S.W.3d 318 (Tex.Crim.App.2009) (principle that court cannot compel a judicial action without clear right)