in Re Ernest Martin ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00258-CR
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IN RE ERNEST MARTIN
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Original Proceeding
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MEMORANDUM OPINION
Relator Ernest Martin filed a petition for writ of mandamus asking this Court
to compel the trial court to address his motion for judgment nunc pro tunc, in
which Martin contended that there is no evidence to support his guilty plea or the
trial court’s deadly weapon finding and the indictment was void, making his
sentence illegal.
To obtain mandamus relief, Martin must show that he has a clear legal right
to the act sought to be compelled. See Banales v. Court of Appeals for the
Thirteenth Judicial Dist., 93 S.W.3d 33, 35 (Tex. Crim. App. 2002). Martin argues
that the trial court must act on his motion because the judgment contains mistakes,
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which he has characterized as clerical. Generally, consideration of a properly filed
motion is ministerial. See State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.
Crim. App. 1987). However, Martin has not shown that an active proceeding exists
before the convicting court, since the judgment became final before he initiated the
proceedings that are the subject of his petition for mandamus. Habeas corpus
proceedings under article 11.07 of the Texas Code of Criminal Procedure provide
the exclusive post-conviction remedy for Martin’s complaints. See Tex. Code
Crim. Proc. Ann. art. 11.07 (West Supp. 2012). Even if we were to address
Martin’s arguments, it appears that the alleged errors of which Martin complains
were judicial decisions rather than clerical errors. A judgment nunc pro tunc is
appropriate only to correct a clerical error; that is, it cannot be used to correct a
judicial error. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994).
Relator has not demonstrated that he is entitled to mandamus relief. See
State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.
Crim. App. 2001) (To demonstrate entitlement to a writ of mandamus, a relator
must establish that the trial court failed to perform a ministerial duty, and that
relator has no other adequate legal remedy.). Accordingly, we deny relief on the
petition for writ of mandamus.
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PETITION DENIED.
PER CURIAM
Opinion Delivered June 12, 2013
Before Gaultney, Kreger, and Horton, JJ.
Do not publish
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