Brown, Sean Huston

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,485-01

IN RE SEAN HUSTON BROWN, Relator

ON APPLICATION FOR A WRIT OF MANDAMUS

FROM FORT BEND COUNTY

Per Curiam .

ORDER

In this application for writ of mandamus, the relator requests that we order the trial

court to enter a judgment nunc pro tunc awarding him a certain period of pre-trial jail-time

credit. (1) The Fourteenth Court of Appeals has already denied the relator mandamus relief, (2)

and rightly so. Today we deny mandamus relief as well. We write additionally to alert

unwary trial counsel of the need to address an issue such as the one presented in this case at

the appellate level rather than relying upon the illusory promise of a post-conviction remedy.

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 pre-trial jail-time credit is

absolutely indisputable under the terms of Article 42.03, Section 2(a)(1). (3)

The relator was arrested on July 12, 2006, charged with murder. But on December

17, 2007, some seventeen months later, after the relator's co-defendant claimed that the

relator was not involved in the murder, but only helped destroy the body, the State re-indicted

the relator for tampering with evidence, a third degree felony offense at the time of its

commission. (4) The relator pled guilty to this newly charged offense in accordance with a plea

bargain with the State. The terms of the plea bargain did not embrace credit against the

relator's sentence for any pre-trial jail time. At the time that the relator entered his plea, on

March 4, 2008, counsel for the relator made a statement for the record that he intended, at

some later date, to make an issue of whether the relator should be credited for the time he

spent in jail on the original murder charge, before he was re-indicted for tampering with

evidence. He alerted the trial court that "it's something you may have to deal with down the

road" in the guise of a motion nunc pro tunc , but he also assured the trial court that "it is not

affecting the plea in this case today." The trial court accepted the guilty plea and sentenced

the relator to ten years' confinement in the penitentiary, crediting him with no more than the

78 days between the date of re-indictment for tampering with evidence and the date of

sentencing. The trial court also dismissed the murder indictment.

The relator's present counsel (different than trial counsel) subsequently filed a motion

for judgment nunc pro tunc , which the trial court denied. Present counsel then filed an

application for writ of mandamus in the court of appeals. That court denied mandamus

relief, observing that whether the relator was entitled to credit against his sentence for the

time he spent in jail on the murder charge before he was re-indicted for tampering with

evidence was a matter for judicial determination, requiring the trial court "to weigh and

resolve conflicting legal claims." (5) Relying upon this Court's opinion in Collins v. State , (6) the

court of appeals held that "[b]ecause the trial court was required to make a determination

regarding whether [the relator] was entitled to additional jail time credit, no ministerial act

was implicated." (7) Mandamus relief is unavailable to compel non-ministerial judicial acts. (8)

Whenever a defendant can show indisputably that he has been denied jail-time credit

for a period of pre-trial incarceration for the identical "case" for which he was convicted and

sentenced, he is entitled to relief from the convicting court in the form of a judgment nunc

pro tunc and, failing that, by writ of mandamus in the court of appeals. (9) At issue in this case,

however, is whether the relator's incarceration under the original murder indictment should

count as incarceration for the same "case" as the tampering with evidence "case" for which

he was later indicted and convicted. It does not seem to be disputed that the murder and

evidence tampering arose from the same core facts. Whether that should suffice to render

them the same "case" for purposes of Article 42.03, Section 2(a)(1), however, is a matter of

statutory construction--manifestly a judicial rather than a ministerial function. (10) Such a

manifestly judicial function is not subject to revision by a judgment nunc pro tunc , we held

in Collins , because any error in the judicial decision is not a "clerical" one, and an appellate

court may not properly mandamus a trial court to enter a judgment nunc pro tunc in these

circumstances. (11) Accordingly, we deny leave to file the relator's application for writ or

mandamus. (12)

The moral of the story: If a claim of pre-trial jail-time credit involves a question of

the proper construction of the statute, as here, trial counsel would do well to try to preserve

the issue for appellate resolution. Post-conviction remedies will prove to be of no avail.

DELIVERED: April 13, 2011

PUBLISH

1. See Ex parte Florence , 319 S.W.3d 695, 696 (Tex. Crim. App. 2010) (ordinarily, inmate

must seek erroneously denied pre-trial jail-time credit by way of a motion for judgment nunc pro

tunc , and, failing that, by filing application for writ of mandamus in court of appeals before

attempting to seek mandamus relief in this Court).

2. In re Sean Huston Brown , 2010 WL 2541885 (No. 14-10-00503-CR, Tex. App.--Houston

[14 th ], delivered June 25, 2010) (not designated for publication).

3. See Tex. Code Crim. Proc. art. 42.03, § 2(a)(1) ("In all criminal cases the judge of the court

in which the defendant is convicted shall give the defendant credit on the defendant's sentence for

the time that the defendant has spent . . . in jail for the case . . . from the time of his arrest and

confinement until his sentence by the trial court").

4. See Tex. Penal Code § 37.09( c ) & (d)(1) prior to amendment by Acts 2007, 80 th Leg. ch.

287, § 1, p. 561, eff. Sept. 1, 2007.

5. In re Brown , supra at *2.

6. 240 S.W.3d 925 (Tex. Crim. App. 2007).

7. In re Brown , supra .

8. See, e.g. , State ex rel. Young v. Sixth Jud. Dist. Court of Appeals , 236 S.W.3d 207, 210 (Tex.

Crim. App. 2007) (mandamus applicant must establish, inter alia , "that what he seeks to compel is

a ministerial act, not involving a discretionary or judicial decision").

9. Ex parte Ybarra , 149 S.W.3d 147, 148 (Tex. Crim. App. 2004); Ex parte Deeringer , 210

S.W.3d 616, 617-18 (Tex. Crim. App. 2006).

10. See Simon v. Lavario , 306 S.W.3d 318, 321 (Tex. Crim. App. 2009) ("[I]t is improper [for

a superior court] to order a trial court to exercise its judicial function in a particular way unless the

relator has a 'clear right to the relief sought,' i.e., the law he invokes is definite, unambiguous, and

unquestionably applies to the indisputable facts of the case .") (emphasis added).

11. 240 S.W.3d at 929 .

12. Tex. R. App. P. 72.1 & 72.2.