Opinion
NO. 12-16-00140-CR
05-24-2017
MIGUEL ANGEL HINOJOSA, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS ORDER
Miguel Hinojosa appeals his conviction for possession of a controlled substance. In his sole issue, Appellant argues the trial court erred by failing to award him credit towards his sentence for the time he spent in a substance abuse felony punishment facility (SAFP). We abate and remand.
BACKGROUND
On January 6, 2014, Appellant pleaded "guilty" to possession of a controlled substance and was placed on deferred adjudication community supervision for five years. On November 10, Appellant appeared before the court on a motion to adjudicate guilt, but was continued on deferred adjudication with the following modification:
The defendant is required to successfully serve a term of confinement and treatment in a substance abuse treatment facility under this section, by abiding by all rules and regulations of said program for a term of not less than 90 days or more than 1 year, and upon successful completion of the program, the defendant is required to participate in a drug or alcohol abuse continuum of care treatment plan as developed by the Texas Commission on Alcohol and Drug Abuse, by abiding by all rules and regulations of said treatment plan until successfully discharged by the staff of the continuum of care program.
On October 5, 2015, Appellant appeared before the court for a status hearing. During that hearing, the court referenced a report it received that Appellant had been released from the SAFP facility, was reporting weekly, and was to begin an aftercare program on September 21. The trial court also approved Appellant's request that his community supervision be transferred to Dallas.
On March 30, 2016, the State filed a motion to adjudicate Appellant's guilt, alleging, in part, that Appellant committed a new offense and failed to successfully complete SAFP. On April 29, Appellant pleaded "true" to several allegations, including failure to successfully complete SAFP. The court found all the allegations in the State's motion to adjudicate "true" and found Appellant guilty of possession of a controlled substance. Appellant's trial counsel informed the court that Appellant completed the inpatient portion of SAFP, but failed to complete aftercare. The trial court orally pronounced a sentence of imprisonment for ten years with credit for time served. On May 4, the court signed a written judgment, which indicated that Appellant would receive credit for eighty two days served in the county jail. This appeal followed.
ERROR PRESERVATION
We first address the State's argument that Appellant did not preserve any appellate complaint regarding his time credits. Ordinarily, to preserve an issue for appellate review, an appellant must have first raised the issue in the trial court. TEX. R. APP. P. 33.1(a); Burt v. State , 396 S.W.3d 574, 577 (Tex. Crim. App. 2013). However, the requirement that an objection be raised in the trial court logically assumes that the appellant had the opportunity to raise it. Burt , 396 S.W.3d at 577; see also Hardeman v . State , 1 S.W.3d 689, 690 (Tex. Crim. App. 1999). An appellant fails to preserve error by not objecting when he had the opportunity; conversely, if an appellant never had the opportunity to object, he has not forfeited the error. Burt , 396 S.W.3d at 577-578; see also Cobb v . State , 95 S.W.3d 664, 666 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (appellant did not forfeit challenge to language in written judgment when judgment was not prepared until after hearing).
In this case, the trial court orally pronounced sentence on April 29, 2016 and indicated that Appellant's sentence would be credited with any time he had already served. The written judgment was not signed by the court and filed with the clerk until May 4. Thus, Appellant did not have an opportunity to object to the failure to include his time spent in a SAFP facility until the written judgment was signed and filed. See Asberry v . State , 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd) (noting parties often discover judgment's recitations for first time when examining record for appellate purposes and when it is too late for party to call the error to trial court's attention or move for nunc pro tunc judgment). Accordingly, his complaint is not waived. See Burt , 396 S.W.3d at 577-578; see also Cobb , 95 S.W.3d at 666.
CREDIT TOWARDS SENTENCE
In his sole issue, Appellant argues that the trial court erred by failing to credit his time spent in a SAFP facility towards his sentence. The State notes that the record is unclear whether Appellant completed the inpatient portion of SAFP. Appellant pleaded "true" to the allegation that he failed to successfully complete SAFP, and the trial court entered an order finding that allegation "true," but neither the motion to adjudicate nor the order of final adjudication distinguish between inpatient and aftercare. The State concedes that if Appellant successfully completed the inpatient portion of SAFP, he is entitled to a credit towards his sentence.
As previously discussed, there are references in the record that indicate Appellant completed the inpatient portion of SAFP. If Appellant successfully completed the inpatient portion of the program, he is entitled to a credit for that time. See TEX. CODE CRIM. PROC. ANN. art. 42A.755(d) (West Supp. 2016) (on revocation, trial court shall credit to defendant time served as a condition of community supervision in a substance abuse felony punishment facility, but only if defendant successfully completed the treatment program in that facility); Deveraux v. State , Nos. 12-13-00284-CR, 12-13-00285-CR, 2014 WL 977475, at *3 (Tex. App.—Tyler Mar. 12, 2014, no pet.) (mem. op., not designated for publication) (holding that an appellant is not required to complete a subsequent program to receive credit on sentence for time served in a SAFP facility). However, the record is silent as to Appellant's actual release date from SAFP, which is necessary to calculate his credit. Accordingly, Appellant has requested that this Court remand his case to the trial court for further findings or reformation of the judgment.
Article 42.12 of the code of criminal procedure was repealed and recodified, effective January 1, 2017, within Chapter 42A. See Tex. H.B. 2299 §§ 3.01, 4.02, 84th Leg., C.S. (2015). We cite to the current version of the law, i.e., Article 42A.755, because the recodification is "intended as a codification only, and no substantive change in the law is intended." Tex. H.B. 2299 § 4.01, 84th Leg., C.S. (2015).
We have the authority to modify a judgment to make the record speak the truth only when we have the necessary data and information to do so. Ingram v. State , 261 S.W.3d 749, 754 (Tex. App.—Tyler 2008, no pet.); Davis v. State , 323 S.W.3d 190, 198 (Tex. App.—Dallas 2008, pet. ref'd). Because the record in this case does not contain the necessary data and information for modification of the judgment, abatement is the appropriate remedy. See Jack v . State , 42 S.W.3d 291, 294 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (holding whether abatement is appropriate will depend on the facts of each case); see also TEX. R. APP. P. 43.6 (appellate court may make any appropriate order that the law and the nature of the case require).
CONCLUSION
Having determined that the record is insufficient to determine the amount of time to which Appellant should be credited, if any, for time served in SAFP, we abate this appeal, set aside the trial court's credit of eighty two days for time served, and remand the cause to the trial court for a hearing to determine (1) whether Appellant successfully completed the inpatient portion at a SAFP facility, and (2) if he did, how many days should be credited towards his sentence.
Accordingly,
It is ORDERED that the trial court shall, within thirty days after the date of this order: (1) conduct the hearing; (2) cause a court reporter to make a record of the hearing; (3) make appropriate orders and findings of fact and conclusions of law; and (4) deliver any orders and findings of fact and conclusions of law to the trial court clerk.
It is FURTHER ORDERED that the trial court clerk file a supplemental clerk's record including all orders and findings of fact and conclusions of law with the Clerk of this Court within ten days of the date the trial court delivers those documents to the trial court clerk.
It is FURTHER ORDERED that the court reporter prepare and file a supplemental reporter's record containing a transcription of the hearing with the Clerk of this Court within ten days of the conclusion of the hearing.
It is FURTHER ORDERED that Appellant shall have fifteen (15) days from the date that the supplemental record is filed to file any supplemental brief.
It is FURTHER ORDERED that the Appellee shall have fifteen (15) days from the date that the Appellant files his supplemental brief, or from the date that Appellant's time to file a supplemental brief expires, whichever is earlier, to file any supplemental brief.
It is FINALLY ORDERED that the case is removed from this Court's active docket. The appeal will be reinstated on this Court's active docket upon the earlier of the Appellee's filing its response to the Appellant's briefing, or further order of this Court.
WITNESS the Honorable Jim Worthen, Chief Justice of the Court of Appeals, 12th Court of Appeals District of Texas, at Tyler.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the 24th day of May 2017, A.D.
PAM ESTES, CLERK
12TH COURT OF APPEALS
By: /s/_________
Katrina McClenny, Chief Deputy Clerk