in Re Todd W. Altschul ( 2018 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed August
2, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00564-CR
IN RE TODD W. ALTSCHUL, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
23rd District Court
Brazoria County, Texas
Trial Court Cause No. 23557
MEMORANDUM OPINION
On July 12, 2018, relator Todd W. Altschul filed a petition for writ of mandamus
in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017); see also Tex. R.
App. P. 52. In the petition, relator asks this court to compel the Honorable Carolyn
Marks Johnson, visiting judge of the 23rd District Court of Brazoria County, to set
aside her June 14, 2018 order denying relator’s motion for judgment nunc pro tunc.
Relator requests that we compel the trial court (1) to award him credit for
presentence jail-time served; (2) change the reference in the judgment from “no” for
notice of appeal to “yes” and award appeal-time credit from the date of sentencing on
May 21, 2001, to the date the appellate mandate was issued on June 12, 1997; and (3)
and modify the judgment to recite that his convicted offense was third degree rather
than second degree.
To be entitled to mandamus relief, a relator must show (1) that the relator has no
adequate remedy at law for obtaining the relief the relator seeks; and (2) what the
relator seeks to compel involves a ministerial act rather than a discretionary act. In re
Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). A
ministerial act does not involve “the exercise of discretion or judgment. If there is any
discretion or judicial determination attendant to the act, it is not ministerial in nature.”
State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig.
proceeding) (citation omitted).
It is relator’s burden to provide a sufficient record to establish that he is entitled
to relief. See Walker v. Packer, 827 S.W.2d 833, 839 Tex. 1992 (orig. proceeding).
Relator failed to do so. For example, relator did not include in his mandamus record a
file-stamped copy of his motion for judgment nunc pro tunc, showing the relief he
requested from the trial court, or a copy of the judgment. See Tex. R. App. P. 52.3(k),
52.7(a).
Therefore, relator has not established that he is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.
2
PER CURIAM
Panel consists of Justices Boyce, Christopher, and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
3