Dunn, Ted Lewis v. State ( 1998 )

TED DUNN V STATE NO. 07-98-0126-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 5, 1998

______________________________

TED LEWIS DUNN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY;

NO. 0601684A; HONORABLE EVERETT YOUNG, JUDGE

_______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.

Appellant brings this appeal challenging the trial court's denial of credit for time served in its judgment revoking his probation. Appellant presents five issues for review. By his first issue, appellant contends the trial court abused its discretion in not giving him credit for time served. Issues two and three address a violation of appellant's State and Federal due process rights and issues four and five raise a violation of appellant's State and Federal equal protection rights. Because the State concedes that the trial court abused its discretion in denying appellant with credit for time served, we reform the judgment, but in all other respects affirm the judgment revoking probation.

Upon a plea of guilty, appellant was convicted of delivery of a controlled substance on July 25, 1996. He was sentenced to 180 days in the State Jail Division of the Texas Department of Criminal Justice with a probationary term of two years. On July 18, 1997, the State filed a petition for revocation of appellant's probated sentence alleging that appellant used a controlled substance and failed to report to the Community and Corrections Department in April 1997, both violations of the conditions of his probation. Appellant was arrested on July 22, 1997, and confined to Tarrant County Jail until February 4, 1998, at which time a hearing was held on the petition to revoke. Because appellant only pled true to the State's allegation that he used a controlled substance, the State presented evidence of appellant's failure to report. At the conclusion of the hearing, the trial court found that appellant violated both conditions of his probation as set forth in the State's petition, ordered that his probation be revoked, and assessed punishment at 180 days confinement.

By his first issue, appellant complains that the trial court abused its discretion in not awarding him credit for time served from the time of his arrest and confinement on July 22, 1997 until February 4, 1998, the date of sentencing on the petition to revoke. We agree with appellant and the State that the trial court abused its discretion in denying appellant credit for time served. The State, however, disagrees with appellant on the number of days for which appellant should receive credit. Therefore, we will address this issue.

In Ex Parte Canada, 754 S.W.2d 660 (Tex.Cr.App. 1988), the Court held that former Article 42.18, section 15(a) ⁽¹⁾ of the Texas Code of Criminal Procedure Annotated, as it related to discretion to grant or deny credit for time served to a parolee confined pursuant to a pre-revocation warrant, violated the parolee's due course of law under Article I, section 19 of the Texas Constitution. ⁽²⁾ The Court analogized the relationship between a jailed defendant awaiting a hearing on revocation with that of a jailed defendant's right to appeal his conviction and reasoned that the availability of discretion to decide whether to award credit for time served before a revocation hearing constituted a punitive policy that might "chill the parolee's decision to exercise his constitutional right to a pre-revocation hearing." Canada, 754 S.W.2d at 667. Thus, the court concluded that Article 42.18, section 15(a), to the extent that it vested the Board of Pardons and Paroles with discretion to deny credit for time served, was unconstitutional. See Ex Parte Price, 922 S.W.2d 957, 958 (Tex.Cr.App. 1996).

In the instant case, the trial court applied Article 42.12, section 15(h)(2) ⁽³⁾ which at the time the arrest warrant was executed provided that:

A judge may credit against any time a defendant is subsequently required to serve in a state jail felony facility after revocation of community supervision time served by the defendant in county jail from the time of the defendant's arrest and confinement until sentencing by the trial court.

At the conclusion of the hearing on the motion to revoke and the trial court's assessment of punishment, the court announced that it would "exercise its discretion provided in the Code of Criminal Procedure and decline to give [appellant] credit for the time spent in county jail."

In Jimerson v. State, 957 S.W.2d 875, 877 (Tex.App.--Texarkana 1997, no pet.), the court addressed the question of whether Article 42.12, section 15(h)(2) passed constitutional muster under Article I, section 19 of the Texas Constitution and, in applying the reasoning of Canada, determined that to the extent that the statute gives discretion to grant or deny credit for time served in confinement, it is unconstitutional. We agree with the State that because Canada controls the disposition of this case and requires that appellant be given credit for time served, the trial court abused its discretion in denying credit for time served. However, we do not agree with the State's contention that appellant is only entitled to 111 days credit when the period of his confinement was 198 days. Any time spent in confinement by appellant pursuant to the execution of a pre-revocation warrant cannot be denied. See Price, 922 S.W.2d at 958. Appellant's first issue is sustained. Our sustention of this issue pretermits a discussion of the remaining issues. Tex. R. App. P. 47.1.

Accordingly, the judgment, as reformed to reflect credit for time served of 198 days, is affirmed.

Don H. Reavis

Justice

Do not publish.

1. Repealed by Act of May 8, 1997, 75th Leg., R.S., ch. 165 § 12.22, 1997 Tex. Gen. Laws 327, 443.

2. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

3. Act of April 25, 1995, 74th Leg., R.S., ch. 76, § 3.10, 1995 Tex. Gen. Laws 458, 465, amended by Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 60, 1995 Tex. Gen. Laws 2734, 2755, amended by Act of May 17, 1997, 75th Leg., R.S., ch. 488, § 4, 1997 Tex. Gen. Laws 1812, 1813.

rst amended motion to proceed with adjudication on February 7, 2007. The State’s amended motion alleged appellant had 1) failed to report to his supervision officer for the months of November and December 2006 and January 2007, 2) failed to pay his community supervision fee and his administration fee, and 3) committed the offense of assault. The trial court conducted a hearing on the issue of adjudication on March 27, 2007. During the hearing, appellant objected to the receipt of evidence concerning the new offense, alleging that since the prosecuting authority for the felony offense, the District Attorney for the 316^th Judicial District, had not sought an indictment and the restitution owed the victim had been made part of a plea agreement on an unrelated felony, the evidence was precluded under the theory of double jeopardy. The trial court overruled the objection and proceeded to hear the evidence. At the conclusion of the hearing on the motion to adjudicate, the trial court adjudicated appellant guilty of the underlying offense of resisting arrest. After a separate hearing on punishment, held on April 25, 2007, the trial court assessed punishment at confinement in the county jail for a period of 365 days. This appeal followed.

          Through one issue appellant now claims that the trial court abused its discretion by sentencing appellant to one year in jail because the State should have been barred from litigating the motion to adjudicate guilt based upon the doctrine of collateral estoppel. We dismiss for want of jurisdiction.

Analysis

           The applicable provision of the Code of Criminal Procedure in force at the time of appellant’s hearing controls the disposition of this case. This provision was amended and is now codified as article 42.12 section 5(b) to provide that a defendant in an adjudication proceeding has the same rights to a review of the trial court’s decision to adjudicate as any other defendant in a revocation of community supervision proceeding. See Tex. Crim. Proc. Code Ann. § 42.12(5)(b) (Vernon Supp. 2007). The new provision is applicable to cases heard on or after June 15, 2007.

          Accordingly, appellant’s rights to appeal the adjudication is governed by the former statute. The Texas Court of Criminal Appeals has spoken to this issue and has uniformly held that the trial court’s decision to adjudicate, under the former statute, was absolutely discretionary and not subject to review. See Davis v. State, 195 S.W.3d 708, 710 (Tex.Crim.App. 2006). Therefore, we have no jurisdiction to review the trial court’s decision to adjudicate appellant guilty of the offense of resisting arrest.

          However, appellant couches his error in terms of abuse of discretion in sentencing appellant. This would seem to allow us to review the decision to assess appellant’s punishment to one year in the county jail. See Hogans v. State, 176 S.W.3d 829, 833 (Tex.Crim.App. 2005). However, a closer read of the record reveals, that despite the wording of appellant’s issue, the alleged error occurred during the adjudication phase of the trial. As stated by the Hogans opinion, “the asserted error must directly and distinctly concern the second phase; the claim must, on its face, relate to the sentence imposed, not to the decision to adjudicate.” Id. at 834. Appellant is complaining of the admission of evidence that occurred during the adjudication phase. As such, it is not appealable. Davis, 195 S.W.3d at 710. Accordingly, we must dismiss the appeal for want of jurisdiction.

Conclusion

          Having determined we do not have jurisdiction to entertain this appeal, the same is dismissed.

                                                                           Mackey K. Hancock

                                                                                    Justice

Do not publish.