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 2006-06

Cummings, Steven Kyle ( 2006 )


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  • IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS



    NO. WR-63,557-01

    EX PARTE STEVEN KYLE CUMMINGS, Applicant


    ON APPLICATION FOR WRIT OF HABEAS CORPUS

    CAUSE NUMBER 886469-A IN THE 337TH JUDICIAL

    DISTRICT COURT HARRIS COUNTY





       Per curiam.





    O R D E R



       This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pled guilty to an indictment alleging that he possessed four ounces or more but less than five pounds of marihuana. The trial court deferred a finding of guilt and placed Applicant on community supervision for two years. Applicant was subsequently adjudicated guilty of the offense and sentenced to sixteen months in a state jail facility and a fine of $300. There were no direct appeals.  

    In this application for a writ of habeas corpus, Applicant makes several claims. He asserts that he was unlawfully confined in a state prison rather than a state jail facility, that he is being denied pre-sentence confinement credit, that this denial of pre-sentence confinement credit has illegally extended his sentence past the maximum term for a state jail felony, that he was denied effective assistance of counsel and due process in connection with the trial court's decision to adjudicate guilt, and that he was denied his right to appeal after he was adjudicated guilty of the offense.

    Regarding Applicant's claim that he is being denied pre-sentence confinement credit, this Court finds that the record provided indicates that Applicant may be eligible for a total of approximately sixty-one days credit for time served in the county jail before sentencing that was not a condition of community supervision (seven of these days have already been awarded in the judgment of the court). See Tex. Code Crim. Proc. art. 42.12 § 23(b); Ex parte Bates, 978 S.W.2d 575 (Tex. Crim. App. 1998). The award of this time is within the discretion of the trial court, Tex. Code Crim. Proc. art. 42.12 § 15(h)(2); Ex parte Harris, 946 S.W.2d 79 (Tex. Crim. App. 1997), and Applicant may seek the award of this time through a motion for a judgment nunc pro tunc, see Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004). Consequently, this claim should be and hereby is dismissed.  

    Regarding Applicant's remaining claims, after a review of the record, this Court agrees with the trial court that there are no remaining controverted, previously unresolved facts material to the legality of Applicant's confinement. Consequently, these remaining claims should be and hereby are denied.  

    For these reasons, this application for a writ of habeas corpus is DISMISSED in part and DENIED in part.

    DELIVERED: JUNE 7, 2006



    DO NOT PUBLISH