In the Matter of the Marriage of James D. Durham, Jr. and Deborah Lynn Durham--Appeal from 320th District Court of Potter County

State: Texas

Court: Texas Northern District Court

Docket No: 07-02-00398-CV

Case Date: 12/17/2004

Preview:IN THE TENTH COURT OF APPEALS

No. 10-10-00351-CR IN RE JEFFREY BROOKS Original Proceeding

MEMORANDUM OPINION
In this original proceeding, Relator Jeffrey Brooks seeks mandamus relief against Respondent, the Honorable David R. Lloyd, District Clerk of Johnson County.1 Brooks alleges that Mr. Lloyd has failed to correct the appropriate credit for time served in Brooks's underlying criminal judgment in response to Brooks's alleged filing of a motion for nunc pro tunc.2

Brooks's "application" for writ of mandamus has several procedural deficiencies. It does not include the certification required by Rule of Appellate Procedure 52.3(j). See TEX. R. APP. P. 52.3(j). It also lacks an appendix and a certified or sworn record, as required by Rules 52.3(k) and 52.7(a)(1). See id. 52.3(k), 52.7(a)(1). Because of our disposition and to expedite it, we will implement Rule 2 and suspend these rules in this proceeding only. Id. 2.
1

"[T]he proper mode of correction" of "an inaccurate criminal judgment" is "a nunc pro tunc motion and order." Ex parte Pena, 71 S.W.3d 336, 337 n.5 (Tex. Crim. App. 2002); see Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). If the trial court fails to correct it, relief is to be sought by mandamus in the court of appeals. Ybarra, 149 S.W.3d at 149. "A judgment nunc pro tunc, which literally
2

A court of appeals has no jurisdiction to issue a writ of mandamus against a district clerk except to protect its jurisdiction. See TEX. GOV'T CODE ANN.

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