No. 10-03-00172-CR
Opinion delivered and filed December 29, 2004. DO NOT PUBLISH.
Appeal from the 272nd District Court, Brazos County, Texas, Trial Court # 26208-272. Affirmed as modified.
Bruno A. Shimek, Attorney at Law, Bryan, Tx, Attorney for Appellant/Relator. Bill R. Turner Brazos, County District Attorney, Bryan, Tx, Attorney for Appellant/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice GRAY dissents without a separate opinion.)
BILL VANCE, Justice.
Is Craig Demouchette entitled to credit for the time he was confined between arrest and his sentence? He asserts that the trial court erred when it refused to give him credit toward his state jail sentence for: 1) time spent in Brazos County jail after his initial arrest; 2) time he was confined pending the hearing on the State's motion to proceed with adjudication; and 3) time he was confined on the State's motion to revoke community supervision. We will modify the judgment and sentence and grant Demouchette credit for the period of confinement pursuant to the motion to proceed with adjudication and the motion to revoke community supervision.
BACKGROUND
On June 15, 1998, Demouchette was arrested for possession of a controlled substance under one gram. He was released on bond that same day. After he pled guilty, he was sentenced to five years' deferred adjudication probation. The State filed a motion to proceed with adjudication of guilt and sentence for which Demouchette was arrested on July 21, 2000. On July 25, 2000, he was again released on bond. He pled "true" to the State's motion and was sentenced to two years in a state jail facility probated for three years. Later, the State filed a motion to revoke community supervision for which Demouchette was arrested on March 21, 2003. On May 1, 2003, a hearing was held and the trial court revoked Demouchette's probation and sentenced him to twelve months confinement in a state jail facility. JAIL CREDIT
Demouchette argues that he is entitled to jail credit for the following: 1) time spent in Brazos County jail after his initial arrest; 2) time he was confined pending the hearing on the State's motion to proceed with adjudication; and 3) time he was confined on the State's motion to revoke community supervision. The State argues that he is not entitled to credit for 1) the time confined after his initial arrest because he did not receive the maximum sentence; and 2) time confined pending the hearing on the State's motion to proceed with adjudication because he was not sentenced to a state jail facility following the adjudication of guilt. The State agrees that Demouchette is entitled to state jail credit for the days he spent confined pending the hearing on the State's motion to revoke his community supervision. A trial court has discretion whether to grant credit: "[a] judge may credit against any time a defendant is required to serve in a state jail felony facility time served by the defendant in county jail from the time of the defendant's arrest and confinement until sentencing by the trial court." TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(h)(2) (Vernon Supp. 2004-05); see also Ex parte Bates, 978 S.W.2d 575, 577 (Tex.Crim.App. 1998). There is an exception to this discretionary provision: under the equal protection clause of the Fourteenth Amendment, a defendant is entitled to credit for time served, from the time of his arrest to the entry of a guilty plea if he was unable to post bond due to his indigence and he received the maximum sentence. Ex parte Harris, 946 S.W.2d 79, 80 (Tex.Crim.App. 1997). This exception does not apply when the defendant is assessed less than the maximum punishment and would not be required to serve more than the maximum punishment if the confinement times were added together. Ex parte Bates, 978 S.W.2d at 577. In state jail felony cases, a defendant is entitled to credit for time confined pending a State's motion to revoke his community supervision. Id. at 577-78. The maximum statutory sentence for Demouchette's state jail felony is two years. He was sentenced to one year. Therefore, for the time (one day) spent in jail after his initial arrest, Demouchette is not entitled to credit because he was sentenced to less than the maximum sentence and adding one day would not exceed the maximum sentence. See Ex parte Bates, 978 S.W.2d at 578; Ex parte Harris, 946 S.W.2d at 80. The State's motion to proceed with adjudication was treated as a motion to revoke Demouchette's deferred adjudication probation, and the court entered an Order finding him guilty and sentenced him to two years' imprisonment probated for three years. Therefore, we use the rule applicable to a motion to revoke community supervision. Thus, for the time spent confined pending a hearing on the State's motion to proceed with adjudication, Demouchette is entitled to credit. See Ex parte Bates, 978 S.W.2d at 577-78; see also Smith v. State, No. 06-04-00015-CR, 2004 Tex. App. LEXIS 5074, *5-6 (Tex.App.-Texarkana 2004, no pet.). For the time spent confined pursuant to the State's motion to revoke community supervision, Demouchette is entitled to credit, to which the State agrees. See Ex parte Bates, 978 S.W.2d at 577-78. CONCLUSION
We modify the judgment and sentence. The Texas Department of Criminal Justice, State Jail Division, shall credit Demouchette's sentence in cause number 26208-272 in the 272nd District Court of Brazos County for the period from July 21, 2000, to July 25, 2000, and from March 21, 2003, to May 1, 2003. We affirm the judgment and sentence as modified. A copy of this opinion shall be sent to the Texas Department of Criminal Justice, State Jail Division.