Opinion
WR-95,406-01
02-07-2024
EX PARTE JOSEPH KIRKLAND, Applicant
DO NOT PUBLISH
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-485-W012385-1724597-A IN THE 485TH DISTRICT COURT FROM TARRANT COUNTY
ORDER
PER CURIAM.
Applicant was convicted of unlawful possession of a firearm by a felon and sentenced to one year in the state jail. He did not appeal. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant raises a pre-sentence confinement claim. Normally, an application raising such a claim would be dismissed under Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004). But the trial court finds that Applicant is entitled to the time in question and that Applicant is "entitled to discharge his sentence immediately." The State agrees. The trial court recommends granting habeas relief. It appears that Applicant is still in custody.
Applicant was sentenced to one year in the State Jail. It appears from the record that, before sentencing, Applicant was confined in the case in both Tarrant and Rockwall counties for a total of 393 days. The judgment awarded 138 days for the time Applicant was in the Tarrant County jail and omitted the 262 days Applicant was in the Rockwall County jail. The trial court finds that defendants are entitled to receive credit for all pre-sentence confinement. See Tex. Code Crim. Proc. art. 42.03 § 2(a). With the credit, the trial court finds that Applicant's sentence would have already discharged.
Granting pre-sentence confinement credit in a state jail felony case is discretionary unless the defendant received the maximum statutory sentence of two years or perhaps if the defendant would be required to serve a sentence more than the statutory maximum. See Tex. Code Crim. Proc. art. 42A.559(c)(1); former art. 42.12, § 15(h)(2); Williams v. State, 603 S.W.3d 439, 441-42 nn.5-6 (Tex. Crim. App. 2020); Ex parte Bates, 978 S.W.2d 575, 577 (Tex. Crim. App. 1998); Ex parte Harris, 946 S.W.2d 79, 80 (Tex. Crim. App. 1997). The trial court shall make a finding as to whether it intended to award the pretrial confinement credit to Applicant even if such an award is discretionary. See Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court may make any other findings and conclusions that it deems appropriate.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.