Opinion
NO. 09-11-00252-CR
01-25-2012
BILLY RAY BROWN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 96933
MEMORANDUM OPINION
Billy Ray Brown pleaded guilty to the offense of retaliation. The trial court found the evidence sufficient to find Brown guilty, but deferred further proceedings and placed Brown on community supervision for ten years. The State subsequently filed a motion to revoke Brown's unadjudicated community supervision. Brown pleaded "true" to violating two conditions of his community supervision. The trial court found that Brown violated the conditions of his community supervision, revoked Brown's community supervision, found Brown guilty of retaliation, and sentenced Brown to five years in prison. In three appellate issues, Brown contends that the trial court failed to properly give credit for time served when assessing Brown's sentence. We affirm the trial court's judgment.
In issues one through three, Brown argues that the trial court failed to give him credit for time served. The record indicates that Brown has been convicted of both unlawful possession of a firearm by a felon and possession of a controlled substance. At the revocation hearing, the trial court denied Brown's request to credit his sentence with time served and stated that the retaliation offense is a "separate incident[.]" Brown maintains that he is entitled to credit for time served for these two offenses because they were originally disposed of with the retaliation case, they were not conditions of community supervision, and failure to award credit is in effect a consecutive sentence that results in a longer period of incarceration than he would have otherwise served.
In all criminal cases, the sentencing court shall give the defendant credit on the defendant's sentence for time that the defendant has spent in jail for the case, excluding confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence. Tex. Code Crim. Proc. Ann. art. 42.03 § 2(a)(1) (West Supp. 2011). The phrase "for the case" refers "not just to any time the defendant spent incarcerated before conviction[,]" but to "the time one is incarcerated for the case in which he is ultimately tried and convicted." Collins v. State, 318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet. ref'd); see Ex parte Crossley, 586 S.W.2d 545, 546 (Tex. Crim. App. 1979). Accordingly, Brown was not entitled to credit for time spent incarcerated on cases independent from the retaliation case. See Tex. Code Crim. Proc. Ann. art. 42.03 § 2(a)(1); see also Crossley, 586 S.W.2d at 546; Collins, 318 S.W.3d at 473. We overrule Brown's three issues and affirm the trial court's judgment.
Because the amendments to article 42.03 do not contain changes material to this case, we cite to the current version of the statute.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.