Caraway, Damron Bernard ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NOS. WR-70,932-01 AND WR-70,932-02

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EX PARTE DAMRON BERNARD CARAWAY, Applicant

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ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1096813 AND 1098252 IN THE 371^ST DISTRICT COURT FROM TARRANT COUNTY

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   Per curiam. O R D E R  

   Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of theft and sentenced to 10 months' confinement in a state jail on each count. He did not appeal his convictions.

Applicant alleges that, pending trial on these charges, he was confined in county jail from January 17, 2008, until April 11, 2008. He seeks time credit for that period of confinement. He alleges that he sought relief in the time office on July 2, 2008.

Applicant seeks pre-sentence jail time credits on two state-jail felony convictions. On a state jail felony, credit for such time is discretionary with the trial court. See Tex. Code Crim. Proc. art. 42.12, §15(h)(2); Ex parte Harris, 946 S.W.2d 79 (Tex. Crim. App. 1997). A defendant is not entitled to credit for time spent in county jail unless he received the maximum sentence and was unable to post bond due to indigence.

The record is ambiguous as to whether the trial judge intended for Applicant to have the pre-sentence jail-time credit he seeks. Therefore, we are remanding these applications so that the trial court may review its records and its personal recollection to determine whether Applicant has been given the pre-sentencing time credit, if any, that the trial court intended to award to him.

The trial court shall review the court's records in regard to Applicant's claim that he should receive pre-sentence jail time credit on these two state-jail felony convictions. The trial judge shall make findings of fact as to whether she intended to give Applicant the pre-sentence jail-time credit he seeks and, if so, she shall identify the days of additional credit that Applicant should receive. The trial judge shall state whether a nunc pro tunc order has been entered in these causes and, if so, shall identify the date on which that order was entered. The trial court shall enter other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

These applications will be held in abeyance until the trial court has resolved the issue of pre-sentencing time credit. That issue shall be resolved within 14 days of this order. A supplemental transcript containing the trial court's decision on the grant of pre-sentence time credit shall be returned to this Court within 15 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: November 5, 2008

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