Walter Burton Hawkins v. State of Texas ( 2002 )

NO. 07-01-0151-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 21, 2002

______________________________



WALTER BURTON HAWKINS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 268TH DISTRICT COURT OF FORT BEND COUNTY;

NO. 33,578; HONORABLE I. ALLAN LERNER, JUDGE

_______________________________

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

ABATEMENT AND REMAND

Pursuant to a not guilty plea, appellant Walter Burton Hawkins was found guilty of (1) aggravated kidnapping with an affirmative finding on use of a deadly weapon and punishment was assessed at ten years, probated, and (2) guilty of aggravated assault with an affirmative finding on use of a deadly weapon and punishment was assessed at five years confinement. Appellant timely perfected this appeal. The clerk's record and reporter's record have both been filed, as well as appellant's brief.

By its third motion for extension of time to file its brief, the State asserts that the reporter's record does not contain appellant's statement but instead mistakenly includes exhibit number 34 which is the statement of appellant's co-defendant, Donald Thompson. The State further asserts that although counsel for both parties agree that appellant's statement was admitted into evidence and mistakenly omitted from the reporter's record, they are unable to agree to correct the record by agreement according to Rule 34.6(e)(1) of the Texas Rules of Appellate Procedure. Pursuant to Rule 34.6(e)(3), the State requests that the court reporter be ordered to conform the record to what occurred at trial. Rule 34.6(e)(3) provides that after the reporter's record has been filed in this Court, we may submit a dispute regarding the record to the trial court for resolution. Thus, we now abate this appeal and remand the cause for further proceedings.

Upon remand the trial court shall cause Edward J. Meaux, Official Court Reporter of the 268th District Court, to correct the inaccuracy or omission in the reporter's record to reflect exhibit number 34 as appellant's voluntary statement, which was admitted into evidence without objection at volume 5, page 23 of the reporter's record and read aloud to the jury. The trial court shall also direct that the reporter file a supplemental reporter's record including the replacement exhibit with the Clerk of this Court by Monday, April 22, 2002. Further, the State's motion for extension of time in which to file its brief is granted and the brief is due 30 days from the date of reinstatement of this appeal.

It is so ordered.

Per Curiam

Publish.

(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.