in Re Thomas Hunter Davis ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00107-CR
IN RE THOMAS HUNTER DAVIS
Original Mandamus Proceeding
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Thomas Hunter Davis asks this Court to compel, by writ of mandamus, the trial court to
issue a judgment nunc pro tunc granting Davis credit for the period of time he served under
house arrest. Because Davis has not provided this Court with a record establishing his
entitlement to relief, we deny his request.
According to Davis’s petition, he was under house arrest1 from September 13, 2007, through
August 14, 2009, at which point he was sentenced.2 Davis asked the trial court to issue a
judgment nunc pro tunc to award him credit for the twenty-three months spent on house arrest.
The trial court denied Davis’s motion on February 6, 2020.3
To be entitled to mandamus relief, Davis must show (1) that he has no adequate remedy
at law and (2) that the action he seeks to compel is ministerial, not one involving a discretionary
or judicial decision. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). Davis must
provide this Court with a record sufficient to establish his right to mandamus relief. See Walker
v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim’s Pride Corp., 187
S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding); see also TEX. R. APP. P.
52.3. Before mandamus may issue, it must be demonstrated that the trial court had a legal duty
to perform a ministerial act, was asked to do so, and failed or refused to act. In re Villarreal, 96
1
See TEX. CODE CRIM. PROC. ANN. art. 42.035 (Supp.).
2
Davis claims he was placed on house arrest in September 2007 by a former Bowie County Justice of the Peace, the
late Honorable Gibson “Hoot” Hadaway.
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A file-marked, uncertified copy of the trial court’s order is attached to Davis’s petition.
2
S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding); see also In re Blakeney, 254
S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding) (“Showing that a motion was
filed with the court clerk does not constitute proof that the motion was brought to the trial court’s
attention or presented to the trial court with a request for a ruling.”).
“The trial court is required to grant [an accused] pre-sentence jail time credit when
sentence is pronounced.” Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004) (orig.
proceeding) (citing TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a) (Supp.)). Davis has provided
no record to this Court showing why the trial court should have granted his request for time
credit. For example, there is neither a judgment establishing any conviction nor any document or
evidence showing that he served house arrest time. A petitioner in Davis’s position must “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” to warrant issuance of a judgment
nunc pro tunc, In re Brown, 343 S.W.3d 803, 805 (Tex. Crim. App. 2011) (per curiam).
Davis has not produced a record showing that issuing a judgment nunc pro tunc was a
ministerial duty on the part of the trial court. We deny Davis’s request for a writ of mandamus.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 19, 2020
Date Decided: October 20, 2020
Do Not Publish
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