No. 08-02-00212-CR
August 7, 2003 DO NOT PUBLISH
Appeal from v. 168th District Court El Paso County, Texas.
Before Panel No. 1: LARSEN, McCLURE, and CHEW, JJ.
ANN CRAWFORD McCLURE, Justice
Mauro Macias appeals from a judgment revoking community supervision. He complains that he has not been given credit for all of the time he was confined in the El Paso County Detention Facility. We affirm.
FACTUAL SUMMARY
Appellant waived his right to a jury trial and entered a negotiated plea of guilty to possession of more than fifty but less than 2,000 pounds of marihuana. The trial court assessed punishment in accordance with the plea bargain at a $1,000 fine and imprisonment for seven years, probated for seven years. One of the terms and conditions of community supervision required Appellant to perform 500 hours of community service as designated by the Community Supervision and Corrections Department. The court also directed him to participate in drug and alcohol treatment programs. Another condition required him to spend either 180 days or an unspecified period of time confined in the El Paso County Detention Facility. The record does not reflect the amount of time Appellant actually spent at the El Paso County Detention Facility. The trial court subsequently revoked community supervision and reduced Appellant's punishment to imprisonment for a term of two years. At sentencing, Appellant asked whether the trial court would give him credit for his "trustee time" at the county facility and he asked for two days additional credit on the work program. The trial court reviewed a statute offered by Appellant and determined that the statute applied only to county jail sentences. The court advised Appellant that his request for additional credit should be addressed by the Institutional Division of the Texas Department of Criminal Justice. The judgment gave Appellant credit for 172 days served. A few weeks after sentencing, Appellant, acting pro se, wrote a letter to the trial court clerk asking that he be given additional credit pursuant to Article 43.09(a) and (d) and Article 43.10 of the Code of Criminal Procedure. He attached a "time served calculation sheet" showing jail credit of 171 days. At the same time, he filed written notice of appeal. JAIL CREDIT
In his sole issue on appeal, Appellant challenges the trial court's failure to give him additional credit for work performed while incarcerated at the El Paso County Detention Facility. First, he argues that he is entitled to additional credit pursuant to Article 43.09(a) of the Code of Criminal Procedure. Second, he contends he is entitled to additional credit for manual labor performed as provided by Article 43.10 of the Code of Criminal Procedure. Appellant recognizes that these statutes pertain to manual labor and confinement performed after conviction and sentencing, not for work prior to sentencing, but he argues that the Thirteenth Amendment of the United States Constitution and the Texas Constitution require that the work should be compensated in the same manner regardless of when it is performed. Presumably, Appellant intends to argue that the statutes are unconstitutional in their application to him. The State asserts that Appellant failed to preserve these complaints regarding his credit because he did not present them to the trial court when he had an opportunity to do so. We agree. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was presented to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex.R.App.P. 33.1(a)(1)(A). Further, a defendant's complaint on appeal must comport with the objection raised at trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997). Appellant asked the trial court to award him credit for his "trustee time" but he did not bring his request for additional credit pursuant to Articles 43.09 and 43.10 when he had an opportunity to apprise the trial court of his request. Moreover, he did not raise the constitutional issues in the trial court. Therefore, Appellant has not preserved these issues for our review. Even had he done so, the record before us is simply inadequate to address the merits of Appellant's complaints and the State's responses. The judgment reflects that the trial court gave Appellant credit for the 172 days he had been confined in connection with this cause. Other than Appellant's allegations, there is no evidence in the record demonstrating that Appellant actually performed manual labor at the El Paso County Detention Facility. Consequently, Appellant has not established that Articles 43.09 and 43.10 have any arguable application to him. Appellant's complaints are best addressed through other avenues. See Tex.Gov't Code Ann. § 501.0081 (Vernon Supp. 2003) (providing administrative remedy for resolution of disputes involving time-served credits; must be pursued prior to filing of writ of habeas corpus under Article 11.09 of the Texas Code of Criminal Procedure). Appellant's issue is overruled and the judgment of the trial court is affirmed.