in Re Joe Alvin Tarver ( 2022 )

Opinion issued August 4, 2022
In The
Court of Appeals
For The
First District of Texas
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NO. 01-21-00724-CR
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IN RE JOE ALVIN TARVER, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Joe Alvin Tarver, has filed a petition for writ of mandamus
challenging the trial court’s nunc pro tunc judgment because it did not reflect “74
days of [additional] jail[-]time credit.”1
We deny the petition.
1
The underlying case is The State of Texas v. Joe Alvin Tarver, Cause No.
2010R-0075, pending in the 155th District Court of Austin County, Texas, the
Honorable Jeff R. Steinhauser, presiding.
Background
In trial court cause number 2010R-0075, an Austin County Grand Jury issued
a true bill of indictment, alleging that relator, on or about June 27, 2010, “unlawfully
appropriate[d], by acquiring or otherwise exercising control over property, to-wit:
tools, of the value of $1,500.00 or more but less than $20,000.00 from H. Stern, the
owner thereof, without the effective consent of the owner, and with [the] intent to
deprive the owner of the property” (the “underlying case”).2 In 2013, after relator,
with an agreed punishment recommendation from the State, pleaded guilty to the
felony offense of theft, the trial court assessed his punishment at confinement for
two years, suspended the sentence, placed him on community supervision for five
years, and ordered that he pay $11,035.00 in restitution.
Later, in 2018, the State filed a motion to revoke relator’s community
supervision, alleging that relator had violated certain conditions of his community
supervision. At the October 30, 2018 hearing on the State’s motion, relator pleaded
true to the allegations in the State’s motion that he had violated certain conditions of
his community supervision. The State, at the hearing, informed the trial court that
in exchange for relator’s plea of true to the allegations in the State’s motion to
revoke, it recommended that punishment against relator be assessed at confinement
for twelve months, with a credit for 180 days already served. The State also
2
See TEX. PENAL CODE ANN. § 31.03(a), (e)(4).
2
recommended that relator be given a $20,000 personal recognizance bond and be
allowed to wait to begin serving his sentence until November 12, 2018. The trial
court accepted relator’s plea of true, found true the allegations in the State’s motion
that relator had violated certain conditions of his community supervision, revoked
relator’s community supervision, and assessed relator’s punishment at confinement
for twelve months, with a credit for 180 days already served. The trial court also
granted relator a $20,000 personal recognizance bond and ordered him to report to
the “Austin County Jail” “no later than November 12, 2018 at 7:00 p.m.” The trial
court told relator that if he failed to report as ordered “a separate felony
[offense] . . . could be filed against [him] for [his] failure to appear on or before that
time.”
The trial court’s judgment, signed by the trial court on October 30, 2018, was
consistent with the parties’ agreement and assessed relator’s punishment at
confinement for twelve months, with a credit for 180 days already served. The
judgment also stated for the “Date Sentence to Commence: November 12, 2018.”
Relator did not report to the Austin County Jail as ordered. On November 28,
2018, in trial court cause number 2018R-0155, an Austin County Grand Jury issued
a true bill of indictment, alleging that on or about November 12, 2018, relator
intentionally or knowingly escape[d] from the custody of Elivaldo
Paredes; who was then and there Captain of the Austin County Jail,
Austin County, Texas, when [relator] was in custody pursuant to a
lawful order of a court, to-wit: Judgment Revoking Community
3
Supervision on Case No. 2010R-0075 wherein Judge Jeff Steinhauser
imposed a 12[-]month sentence on October 30, 2018 and granted
[relator] a furlough, ordering [relator] to turn himself in to the Austin
County Jail on November 12, 2018.
Relator was arrested on December 17, 2020 for the felony offense of escape from
custody (the “escape charge”).3 On January 15, 2021, relator was released from
custody on bond related to the escape charge.
In June 2021, relator failed to appear in the trial court related to the escape
charge. After a warrant was issued for relator’s arrest, relator was arrested on July
24, 2021 and transferred to the Austin County Jail in August 2021. Relator was also
charged, in trial court cause number 2021R-0085, with the felony offense of bail
jumping and failure to appear related to his failure to appear in the trial court in June
2021 (the “failure-to-appear charge”).4
Once relator was in custody, on September 7, 2021, the State filed a Motion
to Enter Nunc Pro Tunc Judgment in trial court cause number 2010R-0075—the
underlying case. The State’s motion explained that relator’s “sentence [in the
underlying case had been] set to commence on November 12, 2018,” but relator
“never appeared on November 12, 2018[] to begin his sentence.” Relator was
subsequently arrested in July 2021 and transferred to the Austin County Jail in
August 2021, but he “ha[d] not served his sentence in th[e] [underlying] case as
3
See id. § 38.06(a), (c).
4
See id. § 38.10(a), (f).
4
[previously] ordered” by the trial court on October 30, 2018. The State requested
that the trial court amend its October 30, 2018 judgment to change the date relator’s
sentence was to begin from November 12, 2018 to September 7, 2021.
At the hearing on the State’s motion, relator asked the trial court to give him
additional credit in its judgment for the approximately seventy-four days he spent in
jail related to the escape charge and the failure-to-appear charge. The trial court
denied appellant’s credit request. It granted the State’s motion and reformed its
October 30, 2018 judgment to state: “Date Sentence to Commence: September 7,
2021.”
Standard of Review
Mandamus relief is available in a criminal case when (1) the relator has shown
that no other adequate remedy at law is available and (2) the act the relator seeks to
compel is ministerial, not discretionary. Braxton v. Dunn, 803 S.W.2d 318, 320
(Tex. Crim. App. 1991); In re State ex rel. Wice, 629 S.W.3d 715, 720–21 (Tex.
App.—Houston [1st Dist.] 2021, orig. proceeding). An act is ministerial if it does
not involve the exercise of discretion. State ex rel. Hill v. Court of Appeals for Fifth
Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001); Tex. Dep’t of Corrections v.
Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981) (act is ministerial “where
the law clearly spells out the duty to be performed . . . with such certainty that
nothing is left to the exercise of discretion or judgment”). “[T]he relator must have
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a clear right to the relief sought, meaning that the merits of the relief sought are
beyond dispute.” In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013)
(internal quotations omitted). As to a credit for time already served, “[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 defendant’s right to a
credit for time served is “absolutely indisputable.” In re Brown, 343 S.W.3d 803,
804 (Tex. Crim. App. 2011).
Credit for Time Served
In his sole issue, relator argues that the trial court erred in entering a nunc pro
tunc judgment that did not reflect “74 days of [additional] jail[-]time credit” for the
time he served in jail related to the escape charge and the failure-to-appear charge
because that time was served after the trial court signed its October 30, 2018
judgment in the underlying case.
Texas Code of Criminal Procedure article 42.03, section 2(a)(1) provides:
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.
TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1).
Mandamus relief from an alleged denial of a credit for time served is available
only if “a defendant can show indisputably” that the denial of the credit was “for a
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period of pre-trial incarceration for the identical case for which he was convicted
and sentenced.” In re Brown, 343 S.W.3d at 805. Here, the time for which relator
seeks a credit was served related to his two separate charges for the felony offense
of escape from custody and the felony offense of bail jumping and failure to appear.
Those charges involved conduct by relator that occurred after the trial court signed
its October 30, 2018 judgment and assessed relator’s punishment in the underlying
case. Cf. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1); In re Ralston, Nos.
12-22-00060-CR, 12-22-00061-CR, 2022 WL 1121050, at *1 (Tex. App.—Tyler
Apr. 14, 2022, orig. proceeding) (mem. op., not designated for publication) (“Based
on [a]rticle 42.03’s plain language, the credit at issue relates not just to any time the
defendant spent incarcerated . . . . Rather, it is the time [he was] incarcerated for the
case in which he [was] ultimately tried and convicted. The statute’s language does
not authorize time credit in one case for confinement in another case.” (internal
quotations and citations omitted)). And whether relator was entitled to a time-served
credit in the underlying case for the time he spent in jail related to the escape charge
and the failure-to-appear charge was a question of statutory construction and a matter
for judicial determination that required the trial court to consider conflicting legal
claims; it involved a manifestly judicial function rather than a ministerial one. See
In re Brown, 343 S.W.3d at 804–05 (“At issue in this case . . . is whether the relator’s
incarceration under the original murder indictment should count as incarceration of
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the same ‘case’ as the tampering of 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 [a]rticle 42.03, [s]ection 2(a)(1), however, is a
matter of statutory construction—manifestly a judicial rather than a ministerial
function.”); see also In re Sanchez, Nos. 14-17-00273-CR, 14-17-00274-CR, 2017
WL 1573482, at *1–2 (Tex. App.—Houston [14th Dist.] Apr. 27, 2017, orig.
proceeding) (mem. op., not designated for publication); In re Pinto, No.
04-13-00389-CR, 2013 WL 3422971, at *1–2 (Tex. App.—San Antonio July 3,
2013, orig. proceeding) (mem. op., not designated for publication). Because relator
seeks to compel a non-ministerial act, we hold that he is not entitled to mandamus
relief.
Conclusion
We deny the petition for writ of mandamus. All pending motions are
dismissed as moot.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Countiss and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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