in Re Hector E. Pinto ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00389-CR
IN RE Hector E. PINTO
Original Mandamus Proceeding 1
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: July 3, 2013
PETITION FOR WRIT OF MANDAMUS DENIED
Relator, Hector E. Pinto, filed a petition for writ of mandamus on June 19, 2013 seeking
an order compelling the trial court to act on his motion for judgment nunc pro tunc in which he
requested credit for pre-sentence jail time. Because mandamus is unavailable to compel a non-
ministerial act, we deny mandamus relief on the facts of this case.
BACKGROUND
Pinto was charged with indecency with a child (sexual contact) in January 2005. TEX.
PENAL CODE ANN. § 21.11 (West 2011). Pursuant to a plea agreement, Pinto was placed on
deferred adjudication for a period of five years in 2006. One of the conditions of his probation was
immediate deportation to Mexico with no right of re-entry. Pinto later re-entered the country
1
This proceeding arises out of Cause No. 2005CR1598, styled The State of Texas v. Hector E. Pinto, pending in the
175th Judicial District Court, Bexar County, Texas, the Honorable Mary D. Roman presiding.
04-13-00389-CR
illegally. In April 2009, he was placed in federal detention on a charge of illegal re-entry and
sentenced to fifty-one months incarceration in January 2010. He was given credit for time served
from April 22, 2009 to January 31, 2010 on his federal sentence.
As a result of Pinto’s illegal re-entry, the State filed a motion to revoke his probation and
enter a judgment of conviction in the indecency case. On January 1, 2013, upon the completion of
his federal sentence, Pinto was moved to the Bexar County Adult Detention Center on a warrant
issued in the indecency case. The trial judge conducted a hearing and, again as the result of a plea
agreement, entered a judgment of conviction against Pinto on the indecency charge sentencing him
to three years’ incarceration. At the time judgment was entered, Pinto was given credit for 563
days of time served which included both his incarceration on the indecency charge before being
placed on deferred adjudication and the days he served on the indecency charge following the
State’s motion to revoke and enter judgment of conviction.
Pinto filed a motion for judgment nunc pro tunc in the trial court asserting he was entitled
to additional credit on his indecency sentence for the time he served in federal detention on the
illegal re-entry charge. The trial court denied his motion in April 2013. Pinto then sought
mandamus relief in this court asserting the trial court violated a mandatory, ministerial duty to
amend his judgment of conviction and award credit for pre-sentence time served. See TEX. CODE
CRIM. PROC. ANN. art. 42.03, § 2(a) (West Supp. 2012) (“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”).
DISCUSSION
In this original proceeding, relator has not provided this court with certified copies of his
motion for judgment nunc pro tunc, the trial court’s order denying it, or any other record supporting
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04-13-00389-CR
his claim for relief. It is the relator’s burden to provide this court with a record sufficient to
establish his right to relief. TEX. R. APP. P. 52.3(k), 52.7(a); Walker v. Packer, 827 S.W.2d 833,
837 (Tex. 1992). However, the clerk’s record is available in relator’s direct appeal of his criminal
conviction, also pending before this court. 2 See In re Mendoza, 131 S.W.3d 167, 168 (Tex. App.—
San Antonio 2004, orig. proceeding) (referring to record in direct appeal of conviction when record
on pro se petition for writ of mandamus is inadequate).
The Texas Court of Criminal Appeals has held a motion for judgment nunc pro tunc in the
trial court, or writ of mandamus in 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).” In re Brown, 343 S.W.3d 803, 804 (Tex. Crim. App. 2011).
The issue raised in this mandamus proceeding is whether Pinto’s incarceration under the
illegal re-entry indictment and conviction should count as incarceration for the same “case” as the
indecency with a child “case” for purposes of article 42.03. See In re Brown, 343 S.W.3d at 805.
The Court of Criminal Appeals held in Brown that this question is a matter of statutory construction
and involves a manifestly judicial function rather than a purely ministerial one and is, therefore,
not subject to revision by nunc pro tunc. Id. “[A]n appellate court may not properly mandamus a
trial court to enter a judgment nunc pro tunc in these circumstances.” Id.
The defendant in Brown had originally been arrested and incarcerated on a murder charge.
Id. at 804. After seventeen months he was re-indicted for tampering with evidence after his co-
defendant claimed Brown was not involved with the murder, but only the destruction of the body.
Id. The trial court gave credit for pre-sentence time served only on the tampering with evidence
charge (seventy-eight days). Id. Defense counsel filed a motion for judgment nunc pro tunc
2
Relator’s direct appeal from his conviction is pending in appellate cause number 04-13-00104-CR, styled Hector
Edmundo Pinto v. The State of Texas.
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04-13-00389-CR
seeking additional credit for the seventeen months served on the murder charge, which the trial
court denied. Id. On mandamus, the Houston Court of Appeals denied 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.’” Id.
(quoting In re Brown, No. 14-10-00503-CR, 2010 WL 2541885, at *2 (Tex. App.—Houston [14th
Dist.] June 25, 2010, orig. proceeding) (not designated for publication)). Because no ministerial
act was implicated, mandamus relief was unavailable. Id.
CONCLUSION
Because mandamus relief is unavailable to compel a non-ministerial act based on the facts
of this case, relator’s petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).
Karen Angelini, Justice
DO NOT PUBLISH
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