Opinion
No. 05-07-00217-CR
Opinion issued March 13, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F02-14218-PI.
Before Justices MORRIS, BRIDGES, and O'NEILL.
OPINION ON REHEARING
In this case, the trial court revoked Ousmane Sarr's probation for an evading arrest conviction and sentenced him to two years' confinement in state jail. Appellant now complains the trial court denied him mandatory back time credit and abused its discretion by ordering his sentence to be stacked on a previous one. Appellant further complains the written judgment is insufficient to identify the previous conviction and sentence to which his current sentence is to be stacked. We modify the judgment to reflect appellant's entitlement to back time credit and clarify the previous conviction. We affirm the judgment as modified. When the original opinion in this case issued, appellant filed a motion for rehearing, contending the trial court had made incorrect determinations of the amount of back time credit appellant had accrued. The State did not oppose the motion, and the trial judge also requested an opportunity to revisit the issue. In the interest of justice, we abated the appeal and instructed the trial court to hold a second hearing on the issue of how much back time credit appellant earned in relation with this case. We have already withdrawn our previous opinion and vacated the previous judgment in the case. This is now the opinion of the Court. In his first point of error, appellant complains he was improperly denied back time credit. In its brief, the State responded by arguing that the record was insufficient to show whether appellant was actually entitled to any back time credit. We abated the appeal on two occasions and ordered the trial court to hold hearings on the matter and issue written findings. At the most recent hearing, the trial court determined that appellant was jailed in Collin County for the offense onto which appellant's sentence in this case was stacked from August 12, 2003 to March 17, 2005, when he was transferred to the Texas Department of Corrections. The court further found appellant was jailed in Dallas County pending his probation revocation in this case from May 19, 2005 to February 15, 2007. In addition, the record from the hearing makes clear that a hold was placed on appellant in the Collin County jail for the offense in this case on September 8, 2003 for a violation of his probation in this case. Appellant was sentenced to probation in this case on April 18, 2003. The code of criminal procedure provides that the trial judge shall give the defendant "credit on his sentence for the time that the defendant has spent in jail in said cause . . . from the time of his arrest and confinement until his sentence by the trial court." Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2007). A defendant seeking credit on his sentence bears the burden of establishing he is entitled to credit by a preponderance of the evidence. Ex parte Pizzalota, 610 S.W.2d 486, 488 (Tex.Crim.App. 1980) (en banc), overruled on other grounds by Ex parte Hale, 117 S.W.3d 866 (Tex.Crim.App. 2003). To receive credit for time served when incarcerated on a different charge or conviction, a defendant must establish "that a . . . hold was actually lodged with the other jurisdiction for the indictment or charges from which the subsequent conviction resulted." Fernandez v. State, 775 S.W.2d 787, 789 (Tex.App.-San Antonio 1989, no pet.) (citing Nixon v. State, 572 S.W.2d 699, 701 (Tex.Crim.App. 1978)). If a defendant was not credited with the proper amount of back time, we have the power to modify incorrect judgments, provided we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). Here, appellant is entitled to back time credit on his sentence, both for the time spent in Dallas County jail and for the time he spent in Collin County jail from September 8, 2003 to the date of his transfer to TDC. We conclude appellant is entitled to back time credit from September 8, 2003 to March 17, 2005 and from May 19, 2005 to February 15, 2007. We therefore sustain appellant's first point of error and modify the judgment to reflect this entitlement. In his second point of error, appellant complains the trial court abused its discretion by stacking his sentence onto a fifty-year sentence he received while he was on probation in this case. The trial court ordered that appellant's sentence was to begin after the completion of a fifty-year sentence he had received for an aggravated robbery in Collin County. Appellant argues the court could not stack the sentence at the time of the probation revocation because he had been jailed forty-three days as a condition of probation, and therefore had already begun serving his sentence before the probation revocation. If a defendant has already served a portion of his sentence before the sentence is probated, then a cumulation order may not be entered to stack the sentence following revocation on another sentence because doing so would violate the constitutional protection against being twice punished for the same offense. See Ex parte Townsend, 137 S.W.3d 79, 81 (Tex.Crim.App. 2004). In this case, however, appellant had not served any portion of his "sentence" before his probation was revoked. Jail time served as a condition of probation is not considered a part of a defendant's sentence. See Speth v. State, 6 S.W.3d 530, 532 (Tex.Crim.App. 1999); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2007). Therefore, the trial court had the discretion to cumulate the sentence in this case with the sentence from the Collin County aggravated robbery. See Edwards v. State, 106 S.W.3d 833, 845-46 (Tex.App.-Dallas 2003, pet. ref'd). Appellant additionally argues, without citation to authority, that stacking the sentence in this case to the aggravated robbery sentence is "punitive in the extreme." He contends that stacking the sentence is not in the spirit of the law of state jail felonies, which was "specifically designed for low level offenders." Given appellant's conviction for aggravated robbery and the fact that his probation was revoked for two other state jail felonies at the same time it was revoked in this case, appellant is not a particularly low level offender. We conclude the trial court did not abuse its discretion in cumulating appellant's sentence with the fifty-year sentence for aggravated robbery. We overrule appellant's second point of error. In his final point of error, appellant complains the written judgment in his case is insufficient to identify the previous conviction and sentence to which his current sentence is to be cumulated. In the alternative, appellant asserts that the written judgment should be modified to "reflect the actual order entered by the trial court regarding when [his] sentence should commence." The written judgment states that the previous conviction was out of the 416th Judicial District Court of Dallas County, but the trial judge orally pronounced the conviction was out of the 416th District Court of Collin County. As noted by appellant, there is no 416th Judicial District Court in Dallas County; the 416th Judicial District is in Collin County. See Tex. Gov't Code Ann. § 24.560 (Vernon 2004). Furthermore, in a single cross-point, the State asserts that the written judgment should also be modified to reflect the correct cause number for the Collin County aggravated robbery conviction. The State claims that the written judgment contains a clerical error in the cause number for the offense. It asks that we look to the opinion from the appeal of that offense to take judicial notice of the correct trial court cause number for it. We have examined the opinion of the Eighth District Court of Appeals concerning trial court cause number 416-82012-03. The opinion addresses an aggravated robbery out of Collin County for which appellant was sentenced to fifty years. At the revocation hearing in this case, appellant admitted he had been convicted of aggravated robbery in Collin County and sentenced to fifty years' confinement in the case. At the first hearing ordered by this Court to determine whether appellant was entitled to any back time credit, appellant's attorney at the hearing identified the correct cause number for the previous offense as 416-82012-03, rather than 416-82012-05 as reflected in the court reporter's record and in the written judgment. At the second hearing on the matter, all parties treated the previous aggravated Collin County aggravated robbery as having the cause number of 416-82012-03 . Appellant did not file a written response to the State's cross point. After examining the entire record and the opinion of the Eighth District Court of Appeals, we conclude we have the necessary data and information to modify the judgment. See Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). We sustain appellant's third point of error and the State's cross point and modify the judgment to show that appellant's sentence is to commence when the sentence in cause number 416-82012-03 out of the 416th Judicial District Court of Collin County has ceased to operate. We affirm the trial court's judgment as modified.
The appeal in the case was transferred by the Texas Supreme Court from this Court to the El Paso Court of Appeals.