Abrego, Israel ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-79,590-01

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EX PARTE ISRAEL ABREGO, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10-CR-00000215-A IN THE 107^TH DISTRICT COURT FROM CAMERON 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 this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to burglary of a habitation, and originally received a three-year sentence, probated for three years. Applicant's probation was later revoked, and his sentence reformed to two years' imprisonment.

In this application Applicant alleges, inter alia, that he is being denied credit for time he spent in a Substance Abuse Felony Punishment ("SAFP") prior to the revocation of his probation. On May 7, 2013, the trial court made findings of fact and conclusions of law, concluding that Applicant is entitled to 188 days of credit for time he spent in SAFP, and recommending that this Court grant Applicant the credit.

Although Applicant may indeed be entitled to credit for the time in question, that time was spent in SAFP prior to the revocation of Applicant's probation, and therefore prior to sentencing. Habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure is not the proper means for seeking pre-sentencing time credit. The appropriate remedy in this situation is to require Applicant to present the issue to the trial court by way of a motion for judgment nunc pro tunc. If the trial court fails to respond, Applicant is first required to seek relief in the Court of Appeals, by way of a petition for a writ of mandamus, unless there is a compelling reason not to do so. Ex parte Ybarra, 149 S.W.3d 147, 148-149 (Tex. Crim. App. 2004). Therefore, this application is dismissed.

Filed: June 12, 2013

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