Opinion
No. 10-02-077-CR
August 27, 2003 DO NOT PUBLISH
From the 40th District Court, Ellis County, Texas, Trial Court # 24815CR.
Before Justice Vance, Justice Gray, and Senior Justice Hill (Sitting by Assignment)
MEMORANDUM OPINION
Eugene Armstrong appeals from his conviction for the offense of possession of a controlled substance, cocaine, following revocation of his community supervision. In accordance with a plea agreement, Armstrong was assessed a punishment of 730 days state jail time and a fine of $1000, with the imprisonment suspended with supervision for two years. Armstrong was to serve 169 days in county jail as a condition of community supervision. The 169 days represented the number of days Armstrong had served in jail at the time of his plea. Upon revocation, the trial court assessed Armstrong's punishment at 450 days in state jail and a fine of $1000. The trial court credited Armstrong with the 83 days he served in the county jail prior to the hearing on revocation, but did not give him credit for any of the 169 days he served prior to his original plea. Armstrong contends in three issues that: (1) the trial court erred by setting jail time in excess of 90 days in the county jail as a condition of community supervision; (2) the proper remedy for the error of the trial court in setting excess jail time as a condition of community supervision is to set aside any incarceration as a condition of community supervision; and (3) the trial court's failure to give him credit, in the order revoking his community supervision, for the 169 days he served in jail prior to his original plea violates his right to due process and equal protection. We affirm. Armstrong contends in his first issue that the trial court erred by imposing an excessive number of days in the Ellis County jail as a condition of his community supervision. In his second issue, he discusses the remedy that would be appropriate were the court to sustain issue one. Armstrong did not object at trial to the condition of his community supervision that he serve 169 days in the Ellis County jail, a time in excess of the 90 days maximum time permitted by law. See Tex. Code Crim. Proc. Ann., art. 42.12 § 15(c) (Vernon Supp. 2003). Generally, a defendant may not raise an issue regarding the imposition of a condition of community supervision that violates statutory provisions for the first time on appeal. Speth v. State, 6 S.W.3d 530, 535 (Tex.Crim.App. 1999). Armstrong argues that he may raise the issue on appeal because he was not aware that he would not receive credit for the 169 days if his community supervision was revoked as a result of those days being credited toward the 169 days in the county jail that were a condition of community supervision. The court in Speth noted that the rule that a defendant must object to such a defect at trial assumes that the defendant was aware of the conditions at trial. Id., n. 9. Two documents dated contemporaneously with the taking of Armstrong's plea, the plea bargain agreement and the conditions of community supervision, bear Armstrong's signature and reflect 169 days' confinement in the Ellis County jail as a condition of community supervision. Therefore, the record reflects that Armstrong was aware of the objectionable condition of probation. Armstrong cites no authority suggesting that he may raise an issue for the first time on appeal concerning such a defect where he was aware of the defect at the time of his plea but was unaware of some collateral effect of the provision, and we are not aware of any. We overrule issue one. Because issue two relates to the proper remedy in the event we sustain issue one, we overrule issue two. Armstrong asserts in issue three that the trial court violated his due process rights and equal protection rights when he was not given credit on his sentence following revocation for the 169 days he served prior to his original plea. Upon the revocation of Armstrong's community supervision, the trial court did not give Armstrong credit for the 169 days he served in the county jail prior to his plea that resulted in his being assessed 169 days in the Ellis County jail as a condition of community supervision and his receiving credit for those 169 days towards that condition. The trial court could have, but was not required to, give Armstrong credit for the 169 days he served as a condition of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.03 § 2(a) (Vernon Supp. 2003); Ex parte Quinby, 928 S.W.2d 565, 566 (Tex.Crim.App. 1996). Although Armstrong contends that giving him credit for the 169 days toward the 169-day condition of community supervision does not make the 169 days he served days served as a condition of community supervision, he cites no authority for that assertion. Armstrong, again citing no authority, argues that denying him credit for the time he served prior to his plea on the basis that he served the time as a condition of his community supervision violates his right to due process and equal protection because it robs him of that back time. The difficulty with Armstrong's argument is that he was not robbed of the time. Giving Armstrong credit for the 169 days he had served toward the agreed 169 days in the Ellis County jail set as a condition of community supervision prevented him from having to actually serve those 169 days following the plea. Because Armstrong has failed to demonstrate that the treatment of the 169 days as days served as a condition of community supervision constitutes a violation of his right to due process and equal protection, we overrule issue three. We affirm the judgment revoking Armstrong's community supervision. Affirmed Opinion delivered and filed August 27, 2003