Opinion
Nos. 05-03-01141-CR, 05-03-01142-CR, 05-03-01143-CR, 05-03-01144-CR, 05-03-01145-CR
Opinion issued May 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court Collin County, Texas, Trial Court Cause Nos. 296-80156-97, 296-80157-97, 296-80158-97, 296-80159-97, 296-81075-00. Affirmed.
Before Justices MORRIS, WHITTINGTON, and JAMES.
OPINION
In these appeals, Gary Nicholaus Box complains that he was erroneously sentenced in five cases. He argues that articles 42.03, section 2(a) and 42.12, section 18(c) of the Texas Code of Criminal Procedure operated to violate his constitutional rights because they foreclosed the trial court from crediting against his ultimate jail and prison terms the time he had previously served in substance abuse treatment facilities as conditions of his community supervision. We conclude appellant's arguments are without merit and affirm the trial court's judgments.
Factual Background
On April 30, 1997, appellant, without the benefit of a plea bargain, entered pleas of guilty to four forgery offenses. At the plea hearing, appellant admitted he was addicted to amphetamine and expressed a desire to find a drug treatment program that he could enroll in of his own volition. He acknowledged it was his attorney's belief that he did not have the will power to beat the drug addiction on his own and that, in the attorney's opinion, the best treatment for him was the program run by the penitentiary system. The trial court deferred finding appellant guilty in the four cases and placed him on community supervision for five years. The trial court ordered appellant to participate in the county SCORE program, a rehabilitation program that includes alcohol and drug counseling and treatment, and to serve a term in SAFPF, the substance abuse felony punishment facilities of the state prison system, as conditions of the community supervision. On August 6, 1997, the trial court held a hearing on appellant's motion to reconsider the sentence. At that time, appellant was participating in the SCORE program. He expressed a desire to forfeit treatment in the SAFPF program and instead address his drug addiction through completing the SCORE program and enrolling in some out-patient treatment while on community supervision. At that time, the trial court modified appellant's community supervision conditions to require appellant to complete the SCORE program and, upon its completion, immediately enroll in an out-patient drug treatment program approved by his probation officer. The State later filed a motion to adjudicate appellant's guilt in the four forgery cases. On December 4, 1997, the trial court held a hearing on the motion to adjudicate. At the hearing, appellant pleaded true to violating his community supervision by testing positive for amphetamine/methamphetamine. The trial court extended appellant's community supervision to seven years and reinstated the condition that appellant participate in the SAFPF program. On October 12, 2000, the trial court convicted appellant of possession of a controlled substance and revoked his community supervision. The trial court sentenced appellant to two years in a state jail facility for the four forgery offenses. In the possession of a controlled substance case, the trial court sentenced appellant to ten years' community supervision. On April 5, 2001, the trial court granted appellant's motion for shock probation. The court placed appellant on probation for five years and included completion of a drug treatment program in Louisiana as one of the probation conditions. On May 15, 2003, the trial court granted the State's motion to revoke in all five cases. The court sentenced appellant to two years' confinement in state jail in all four forgery cases and five years' imprisonment in the drug possession case. The trial court noted that appellant would not be given credit against his sentences for "any time served as a condition of probation or SAFPF." On July 17, 2003, the trial court held a hearing on appellant's motion for new trial. At the hearing, appellant's counsel explained that he was challenging article 42.03, section 2 of the code of criminal procedure because the statute "says credit should be given while the Defendant is in jail for final sentence except for time in jail as a condition of probation." The trial court acknowledged that it was relying on article 42.03 in denying appellant credit for time he served in the SAFPF and SCORE programs. The trial court denied appellant's motion for new trial.Discussion
Now on appeal, appellant complains in three points of error that article 42.03, section 2(a) and article 42.12, section 18(c) of the code of criminal procedure violate the Equal Protection, Due Process, and Double Jeopardy Clauses of the U.S. Constitution. He also complains the two statutes violate his rights under article 1, section 14 and article 1, section 19 of the Texas Constitution. Appellant's arguments do not specify whether he is complaining that the statues are unconstitutional on their face or unconstitutional as applied to him. The arguments focus, however, on the facts of appellant's particular circumstances. Appellant's complaint, therefore, is that the statutes are being unconstitutionally applied to him. See State v. Doe, 61 S.W.3d 99, 101-102 n. 3 (Tex. App.-Dallas 2001), aff'd, 112 S.W.3d 532 (Tex.Crim.App. 2003). A party may not challenge the constitutionality of a statute "as applied" unless the complaint is raised in the trial court. Sullivan v. State, 986 S.W.2d 708, 711 (Tex. App.-Dallas 1999, no pet.). Article 42.03, section 2(a) provides,In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, 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. 2004) (emphasis added). Article 42.12, section 18(c) provides, "A defendant granted community supervision under this section may not earn good conduct credit for time spent in a community corrections facility or apply time spent in the facility toward completion of a prison sentence if the community supervision is revoked." Id. art. 42.12, § 18(c). Appellant contends his constitutional rights have been violated because these statutes prevented the trial court from applying the time he spent successfully completing the SCORE and SAFPF programs against his current jail and prison terms. We first note that appellant served no time in the SCORE or SAFPF programs during his community supervision period for the possession of a controlled substance offense. Therefore, his complaints are inapplicable to that case, and his three points of error are overruled in cause number 05-03-01145-CR (trial court cause number 296-81075-00). Next, despite appellant's arguments to the contrary, SAFPF confinement is not jail time; it is a condition of community supervision "as an alternative to imprisonment." Id. art. 42.12, § 14(a); see also Taylor v. State, 126 S.W.3d 201, 204 (Tex. App.-Houston [1st Dist.] 2003, no pet.). Nor is the SCORE program jail; it is a "community corrections facility" operated "for the purpose of confining persons placed on community supervision and providing services and programs to modify criminal behavior, deter criminal activity, protect the public, and restore victims of crime." See Tex. Gov't Code Ann. § 509.001 (Vernon 1998). Therefore, article 42.03, section 2(a) has no bearing on appellant's current complaints. Indeed, article 42.03, section 2(a) does not prevent a trial court from giving a defendant credit for jail time served as a condition of community supervision. See Ex parte Quinby, 928 S.W.2d 565, 566 (Tex.Crim. App. 1996). Article 42.12, section 18(c), on the other hand, absolutely precludes a trial court from crediting the time a defendant served in a community corrections facility while on community supervision against his prison sentence if his community supervision is revoked. Tex. Code Crim. Proc. Ann. art. 42.12, § 18(c). Additionally, because the relevant SAFPF statutes do not specifically discuss whether a defendant whose probation is revoked may receive credit for time served in SAFPF, article 42.12, section 23(b) precludes a trial court from giving a defendant credit for time served in SAFPF. See Taylor, 126 S.W.3d at 205-06. That statute provides, in part, "No part of the time that the defendant is on community supervision shall be considered as any part of the time that he shall be sentenced to serve." Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2004). Appellant is complaining that the trial court did not credit against his sentences the time he served in the SAFPF and SCORE programs as a condition of his community supervision, not the time (if any) he spent in jail as a condition of his community supervision. Thus, appellant's complaints pertaining to article 42.03, section 2(a) are without merit because that statute does not apply to his complaints on appeal. Moreover, appellant has waived his right to complain about the other applicable statutes. Before the trial court, as the court reporter's record shows, appellant argued only that article 42.03 was unconstitutional. But this statute, as we pointed out above, does not apply to his points of error on appeal. As discussed above, the statutes pertinent to his complaints are articles 42.12, section 18(c) and 42.12, section 23(b) of the code of criminal procedure. To preserve a complaint for appellate review, a defendant must show on the record that the complaint was made to the trial court by a timely request, objection, or motion that "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent form the context." Tex.R.App.P. 33.1(a). This rule ensures that trial courts are given an opportunity to correct their own mistakes at the most convenient and appropriate time. Hull v. State, 67 S.W.3d 215, 217 (Tex.Crim.App. 2002). Here, appellant did not complain about the unconstitutionality of article 42.12, § 18(c) until he filed his brief on appeal. And he never complained about the general prohibition in article 42.12, section 23(b) against giving a defendant credit for time served while on community supervision. He complained to the trial court that article 42.03, section 2(a) was unconstitutional because it prohibited the court from giving him credit for the "jail" time he served in SAFPF and SCORE. In fact, if the SAFPF and SCORE programs were considered jail time served as condition of community supervision, the trial court could have credited the time against appellant's sentences if it so chose. See Quinby, 928 S.W.2d at 566. Given the trial court's extensive attempts to help appellant get the drug treatment he needed and appellant's continually disappointing responses to that help, the trial court may have chosen not to credit the SAFPF and SCORE time against his sentences under article 42.03, section 2(a) and believed that appellant's constitutional arguments were without merit because the decision to credit the sentences was discretionary with the court. From the record before us, we do not know how the trial court came to its decision. We know only that appellant and the trial court confined their discussion on these matters to a statute inapplicable to appellant's complaints. Appellant never made the trial court aware of the statutes applicable to his cases, so he cannot now complain the statutes are unconstitutional as perhaps applied to him. See Tex.R.App.P. 33.1(a). We overrule appellants first, second, and third points of error. We affirm the trial court's judgments.