Dana Young v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00086-CR

______________________________

DANA YOUNG, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 264th Judicial District Court

Bell County, Texas

Trial Court No. 57168

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Dana Young appeals from his conviction for possession of cocaine, less than one gram, on his open plea of guilty. The trial court sentenced Young to eighteen months in a state jail facility. This case was transferred from the Third Court of Appeals to this Court by order of the Texas Supreme Court as part of its docket equalization procedures.

          Young contends the trial court erred by refusing to credit against his sentence the seventy-one days he spent in jail pending disposition of the case.

          Article 42.03(2)(a) of the Texas Code of Criminal Procedure contains language requiring the trial court to give a defendant credit for time spent in jail pending trial.

In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court.

Tex. Code Crim. Proc. Ann. art. 42.03(2)(a) (Vernon Supp. 2004–2005).  

          However, there is a more specific statute at Article 42.12, Section 15(h)(2) in a section entitled "Procedures Relating to State Jail Felony Community Supervision," which provides:

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

Tex. Code Crim. Proc. Ann. art. 42.12, § 15(h)(2) (Vernon Supp. 2004–2005).  

          This issue has been directly addressed by the Austin Court of Appeals in Holloway v. State, 115 S.W.3d 797 (Tex. App.—Austin 2003, no pet.), and by this Court in Hoitt v. State, 30 S.W.3d 670, 676 (Tex. App.—Texarkana 2000, pet. ref'd). In both opinions Section 15(h)(2) was applied as written, acknowledging that the language explicitly gives the trial court the discretion to decide whether to grant credit against a defendant's sentence for jail time served between arrest and sentencing. They also recognize a limitation on that discretion in the context of an indigent defendant who is unable to post bond. In that situation, when the failure to grant time credit would cause a defendant to be incarcerated for longer than the maximum punishment provided for the offense, it would deny him or her equal protection of the law. Hoitt, 30 S.W.3d at 676; see Ex parte Harris, 946 S.W.2d 79, 80 (Tex. Crim. App. 1997).

          A state jail felony is punishable by up to two years' confinement in a state jail. Tex. Pen. Code Ann. § 12.35(a) (Vernon 2003). By any calculation, eighteen months plus seventy-one days does not implicate the ultimate limitation on the trial court's discretion. Error has not been shown.

 

          We affirm the judgment.

 

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      June 21, 2005

Date Decided:         August 5, 2005

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00112-CR

                                                ______________________________

 

 

                                   RONALD ALLEN BOAZ, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                 Â

 

 

                                      On Appeal from the 102nd Judicial District Court

                                                          Red River County, Texas

                                                          Trial Court No. CR00052

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

 

 

            Ronald Allen Boaz filed pro se a notice of appeal on July 1, 2009, appealing from a judgment that imposed his sentence July 21, 2003.

            A timely notice of appeal is necessary to invoke this Court’s jurisdiction.  Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).  Rule 26.2(a) of the Texas Rules of Appellate Procedure prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect appeal in a criminal case.  A defendant’s notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial.  Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522.  No motion for new trial was filed.  The last date Boaz could timely file his notice of appeal was August 20, 2003, thirty days after the day the sentence was imposed in open court.  See Tex. R. App. P. 26.2(a)(1).

            Boaz has failed to perfect his appeal.  We dismiss the appeal for want of jurisdiction.

 

 

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

 

Date Submitted:          June 22, 2010 

Date Decided:             June 23, 2010

 

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