NO. 12-07-00150-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

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IN RE: ROBERT WAYNE OLVERA,        §          ORIGINAL PROCEEDING

RELATOR

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MEMORANDUM OPINION

            Robert Wayne Olvera pleaded guilty to felony driving while intoxicated, and the State recommended a sentence of imprisonment for five years.  The trial court assessed the recommended punishment and gave Olvera 215 days credit for his presentence jail time.  In this original proceeding, Olvera seeks a writ of mandamus alleging that the trial court miscalculated his credit for presentence jail time and he is entitled to an additional 105 days of credit.  Prior to filing his mandamus petition, Olvera moved for a nunc pro tunc judgment, which the trial court denied by written order on June 6, 2006.  See Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004) (appropriate remedy where jail time credit is allegedly incorrect is to present the issue to the trial court by nunc pro tunc motion). 

            When a trial court does not respond to a motion for a nunc pro tunc judgment alleging incorrect jail time credit, we may grant a writ of mandamus requiring the trial court to rule on the motion.  Id. at 149.  In cases such as this, when the trial court has ruled on the nunc pro tunc motion and denied it, filing an application for writ of habeas corpus in the court of criminal appeals, and not mandamus, is the appropriate avenue for relief.  See Tex. Code Crim. Proc. art. 11.07 (Vernon 2005) (establishes procedures for postconviction application for writ of habeas corpus in noncapital felony cases); Ex parte Deeringer, 210 S.W.3d 616, 617-18 (Tex Crim. App. 2006) (court of criminal appeals will entertain claim of denial of presentence jail time credit brought pursuant to article 11.07 after applicant has filed a motion for judgment nunc pro tunc in convicting court and has sought mandamus relief from court of appeals upon trial court’s failure to rule on motion).  Accordingly, we deny Olvera’s petition for writ of mandamus.

Opinion delivered April 25, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                                                                     BRIAN HOYLE   

                                                                                                               Justice

Opinion delivered April 25, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)