Opinion
No. 05-08-00410-CR
Opinion issued February 9, 2009. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-49584-Q.
Before Justices BRIDGES, RICHTER, and MAZZANT. Opinion By Justice MAZZANT.
OPINION
Connell Wickware pleaded guilty to theft, enhanced by one prior felony conviction, and was sentenced to five years of deferred adjudication and a $1,500 fine. The trial court granted the State's amended motion to proceed with adjudication of guilt and sentenced appellant to twenty-two months in jail. In two issues, appellant argues the trial court improperly denied him "back time" and the judgment fails to accurately reflect the conditions of his deferred adjudication. As modified, we affirm the trial court's judgment.
background
Appellant pleaded guilty and judicially confessed to an information alleging that he committed theft (with two prior convictions of theft), enhanced by one prior felony conviction for possession of a controlled substance. The trial court sentenced him to five years of deferred adjudication community supervision and a $1,500 fine. On August 30, 2007, the State filed a motion to revoke probation or proceed with an adjudication of guilt. The motion was withdrawn on November 28, 2007. The State filed another motion to revoke probation or proceed with an adjudication of guilt on January 22, 2008. That motion was amended on February 4, 2008. At the hearing on the State's amended motion, which was held on February 14, 2008, the trial court accepted appellant's plea of true and sentenced him to twenty-two months in jail.discussion
Pre-sentence Jail Time Credit In his first issue, appellant argues that the trial court improperly denied him credit for time he spent in jail between his arrest and his sentencing. Appellant asks us to modify the judgment to include all back-time credit to which he is lawfully entitled. The State claims appellant waived his complaint or, alternatively, that there is insufficient evidence in the record to show that he is entitled to pre-sentence jail time credit. At the hearing conducted on February 14, 2008, after the trial court accepted appellant's plea, the following exchange occurred:THE COURT: Okay. I'm going to give you 20 — I'm going to give you 22 months in the state jail. No credit for your back time.
Is there any reason at law why your client shall not now be sentenced?
[DEFENSE COUNSEL]: None, Your Honor.
THE DEFENDANT: I don't want my back time.
THE COURT: Excuse me?
THE DEFENDANT: Don't give me back time. My back time — I don't deserve my back time.
THE COURT: It is, therefore, the order of this court that you be taken by the sheriff of Dallas County, and by her safely held and transferred to an authorized receiving agent where you shall be confined for a period of 22 months or until your sentence is otherwise discharged according to the law. Your sentence is imposed to begin today, February 14th, 2008.
Good luck to you. Please go with the sheriff.
[DEFENSE COUNSEL]: Judge —
THE COURT: And I will not be giving you credit for your back time.
[DEFENSE COUNSEL]: — the Court is not going to give him credit?
THE COURT: No credit.
Now, you think about it again when you're going to be ready to change your mind about doing some cocaine.The State principally supports its contention that appellant waived his complaint by citing Ex parte Olivares, 202 S.W.3d 771, 773 (Tex.Crim.App. 2006), where the court of criminal appeals concluded that a defendant may waive his right to pre-sentence jail time credit by entering into a plea bargain with the State, if the facts on record support that a waiver occurred. Olivares, however, is distinguishable from the present case for several reasons. To begin with, the record here does not show that appellant "expressly and affirmatively" waived pre-sentence jail time credit as a condition of a plea agreement because, unlike the applicant in Olivares, appellant in this case entered an open plea. Furthermore, the statements at the hearing that the State is relying on to support its argument that appellant waived pre-sentence time credit — "I don't want my back time;" "Don't give me back time;" and "I don't deserve my back time" — were all made after the trial judge told appellant that he was sentencing him to "22 months in state jail" and that he would receive "[n]o credit for your back time." We therefore conclude appellant did not expressly and affirmatively waive pre-sentence jail time credit. Turning to the State's alternative argument, we note that appellant was convicted of the offense of theft of property with a value less than $1,500 after having twice been convicted of theft, which is a state jail felony. Tex. Penal Code Ann. § 31.03(e)(4)(D) (Vernon 2003). A state jail felony is punishable by confinement in a state jail for any term of not more than two years or less than 180 days. Tex. Penal Code Ann. § 12.35(a) (Vernon 2003). In state jail felony cases, the trial court has discretion whether to grant the defendant credit against his sentence for any jail time served between his arrest and sentencing. Tex. Code Crim. Proc. Ann. art. 42.12, § 15(h)(2) (Vernon Supp. 2008). There are, however, limitations on that discretion. In Ex parte Harris, for example, the court of criminal appeals concluded that, under the Equal Protection Clause of the Fourteenth Amendment, the defendant was entitled to credit for time he spent in jail between his arrest and the entry of his guilty plea because he was unable to post bond due to his indigence and the trial court assessed the maximum sentence. Ex parte Harris, 946 S.W.2d 79, 80 (Tex.Crim.App. 1997); Broussard v. State, 226 S.W.3d 619, 620-21 (Tex.App.-Houston [1st Dist.] 2007, no pet.); see also McGregor v. State, 145 S.W.3d 820, 821-22 (Tex.App.-Dallas 2004, no pet.); Holloway v. State, 115 S.W.3d 797, 798 (Tex.App.-Austin 2003, no pet.). In a subsequent decision, the court concluded that a defendant is entitled to receive credit for time spent in jail between his arrest on a motion to revoke community supervision and his sentencing. Ex parte Bates, 978 S.W.2d 575, 578 (Tex.Crim.App. 1998); Broussard, 226 S.W.3d at 621. In this case, appellant received a sentence that is only two months short of the maximum two-year sentence provided for state jail felonies. Tex. Penal Code Ann. § 12.35(a) (Vernon 2003). He may therefore be entitled to credit for time served between his arrest and sentencing. There is, however, no indication in the record as to the total length of time appellant was incarcerated on the instant offense before sentencing, nor does appellant tell us how many days or months should be credited against his sentence. In addition, the record does not indicate whether appellant's sentence would actually exceed the statutory maximum when his pre-sentence jail time is added to the actual sentence. Without an adequate record, we cannot modify the judgment. See Broussard, 226 S.W.3d at 621 (declining to modify judgment to give time credit for time spent in jail after initial arrest but prior to guilty plea because record did not indicate amount of time appellant was incarcerated); McGregor, 145 S.W.3d at 822 n. 1 ("We must reform a judgment to correct what the trial court could have corrected by a judgment nunc pro tunc, where the evidence necessary to correct the judgment appears in the record."); see also Ortiz v. State, 144 S.W.3d 225, 229-30 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (while district and appellate courts have duty to ensure delivery of record, party seeking review still has duty to develop a record demonstrating error). We therefore overrule appellant's first issue. Modification of Judgment In his second issue, appellant argues that the judgment fails to accurately reflect the conditions of deferred adjudication he was found to violate. Appellant asks us to modify the judgment and the State agrees that the judgment should be modified. The judgment in this case contains a paragraph noting, among other things, the conditions of community supervision that appellant violated. According to that part of the judgment, "Defendant violated the terms and conditions of community supervision as set out in the State's ORIGINAL Motion to Adjudicate Guilt as follows: See attached Motion to Adjudicate Guilt." As written, the judgment in this case thus reflects a finding of true on all allegations contained in the State's "original" motion to revoke probation. The original motion to adjudicate, however, as we have seen, was withdrawn by the State. It is the amended motion on which the judgment adjudicating guilt is actually based. Accordingly, the trial court's judgment will be modified to show that appellant violated the following terms and conditions of community supervision as set out in the State's amended motion to adjudicate guilt: committing a criminal offense as alleged in the State's motion, using a controlled substance or narcotic, and failing urinalysis. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.