Opinion
WR-92,783-03
06-19-2024
EX PARTE SHAWN RAY EVANS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 17-06-07753-CR(3) IN THE 9TH DISTRICT COURT FROM MONTGOMERY COUNTY
ORDER
PER CURIAM.
Applicant pleaded guilty to driving while intoxicated-subsequent offense and was sentenced to fifteen years' imprisonment. He did not appeal his conviction. 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 raised five total grounds in his application. The first four grounds raised allegations that his plea was involuntary and that trial counsel was ineffective for various reasons; The fifth ground alleged that Applicant was not being awarded the correct pre-sentence jail time credit. After holding a habeas hearing, the trial court made findings of fact and conclusions of law recommending that the application either be dismissed or denied on the merits. We agree that the application should be dismissed.
On July 28, 2021, this Court granted in part and denied in part Applicant's previous application challenging the same conviction in our case number WR-92,783-01. That -01 application raised four grounds alleging that Applicant's plea was involuntary and that trial counsel was ineffective. In a written opinion, the Court granted Applicant an out-of-time appeal, and it specifically stated in a footnote: "This Court has reviewed Applicant's other claims and finds them to be without merit." Consequently, because Applicant's current -03 application was filed after final disposition of the -01 application challenging the same conviction, this -03 application is a subsequent application under Texas Code of Criminal Procedure Article 11.07, Section 4.Applicant has not satisfied a statutory exception to the subsequent-application bar as it pertains to his first four grounds; therefore, they are dismissed. Tex. Code Crim. Proc. art 11.07, § 4.
The -02 application was dismissed without written order because the instant conviction was not final, as mandate had not issued at the time Applicant filed that -02 application. See Ex parte Johnson, 12 S.W.3d 472 (Tex. Crim. App. 2000).
Applicant's fifth ground involving his pre-sentence jail time credit arguably satisfies the "new factual basis" exception to the subsequent-application bar. Nevertheless, Applicant is incorrect that he has exhausted all remedies and thus that this ground is cognizable on habeas. Applicant properly sought relief on his pre-sentence jail time credit claim by filing a motion for judgment nunc pro tunc with the clerk of the convicting trial court, and then filing an application for writ of mandamus in a court of appeals following the trial court's denial of his motion. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004); see also Ex parte Pena, 71 S.W.3d 336, 337 n. 5 (Tex. Crim. App. 2002). Applicant, however, did not file an application for writ of mandamus in this Court following the court of appeals's denial of his mandamus application and instead sought relief by filing the instant 11.07 application. Ex parte Florence, 319 S.W.3d 695 (Tex. Crim. App. 2010). Nor did Applicant allege that he is presently being illegally confined because he would have discharged his sentence if given the proper time credit. Id.; see also Ybarra, 149 S.W.3d at 148 n. 2 ("If Applicant has been incarcerated past his presumptive discharge date, this is no longer a time credit claim but an illegal confinement claim."). Consequently, Applicant's fifth ground is also dismissed.
In conclusion, based upon the habeas court's findings and our own independent review of the record, the entire -03 application is dismissed. Copies of this order shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.