Court of Appeals of Texas, Seventh District, Amarillo
Proceeding Arising From Proceedings Before the 108th District
Court Potter County, Texas Trial Court No. 66, 888-E;
Honorable Douglas R. Woodburn, Presiding
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Patrick A. Pirtle Justice.
original proceeding, Relator, Antwain Jamar Tutson, seeks to
compel the Honorable Douglas R. Woodburn, Judge of the 108th
District Court of Potter County, to rule on his
post-conviction motions requesting the entry of a second
judgment nunc pro tunc. For the reasons expressed
herein, we dismiss Relator's petition.
to the limited documents before this court, pursuant to a
plea bargain, Relator was convicted of possession of a
controlled substance on June 12, 2013. He was sentenced to
thirteen years confinement and assessed a $1, 000 fine. The
summary portion of the original judgment reflects
"N/A" under Findings on Deadly Weapon.
Almost two years later, on March 11, 2015, for reasons not
known to this court, the trial court signed and filed a
judgment nunc pro tunc changing the Findings on
Deadly Weapon to reflect "YES, A FIREARM."
was notified that the deadly-weapon finding would require him
to serve one-half of his sentence before becoming eligible
for parole. In response, he filed a Motion for
Judgment Nunc Pro Tunc to Dismiss Deadly Weapon Finding
asking the trial court to delete the deadly-weapon finding.
After no action was taken on his motion, on May 4, 2017, he
filed a Motion to Compel the Trial Court to Answer
Defendant's Motion for Judgment Nunc Pro Tunc to Dismiss
Deadly Weapon Finding. To date, the trial court has not
ruled on the pending motions prompting Relator to seek
Standard of Review
relief is extraordinary. In re Braswell, 310 S.W.3d
165, 166 (Tex. App.-Amarillo 2010, orig. proceeding) (citing
In re Southwestern Bell Telephone Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding)). "Mandamus issues only to correct a clear
abuse of discretion or the violation of a duty imposed by law
when there is no other adequate remedy by law."
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
(orig. proceeding) (quoting Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.
proceeding)). To show entitlement to mandamus relief in a
criminal case, a relator must show two things: (1) that he
has no adequate remedy at law and (2) that what he seeks to
compel is a ministerial act. In re Bonilla, 424
S.W.3d 528, 533 (Tex. Crim. App. 2014).
motions pending in the trial court and by the petition for
writ of mandamus pending in this court, Relator challenges
the propriety of adding the deadly-weapon finding to his
judgment of conviction twenty-one months after entry of the
original judgment. Relator also challenges the sufficiency of
the evidence supporting that finding, and as such, his
challenge is a collateral attack on the new judgment nunc
pro tunc. Under Texas law, a felony conviction is not
subject to a collateral attack by means of a writ of
mandamus. See In re Patton, No. 06-06-00116-CV, 2006
Tex.App. LEXIS 10555, at *6 (Tex. App.-Texarkana Dec. 12,
2006, orig. proceeding) (mem. op.) (holding that a writ of
habeas corpus is "the exclusive post-conviction judicial
remedy available when the conviction is final and the
applicant is confined by virtue of his or her felony
conviction"). See also In re Isaac, No.
05-17-00536-CV, 2017 Tex.App. LEXIS 4998, at *1 (Tex.
App.-Dallas May 31, 2017, orig. proceeding) (mem. op.)
(citing Tex. Code Crim. Proc. Ann. art. 11.07) (providing
that jurisdiction for a post-conviction application for a
writ of habeas corpus vests with the Texas Court of Criminal
Appeals), and In re McAfee, 53 S.W.3d 715, 717 (Tex.
App.-Houston [1st Dist.] 2001, orig. proceeding) (noting that
article 11.07 contains no role for courts of appeal)).
court does not have jurisdiction to entertain a collateral
attack on a felony judgment. We note, however, if Relator was
never given the opportunity to contest the felony judgment
nunc pro tunc, he may be entitled to an out-of-time
direct appeal or other relief by filing a post-conviction
writ of habeas corpus returnable to the Texas Court of
Criminal Appeals. See Tex. Code Crim. Proc. Ann.
art. 11.07 (West 2015).
petition for writ of mandamus is dismissed for ...