Domingo Valdez Martinez v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-232-CR



DOMINGO VALDEZ MARTINEZ,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT

NO. 9481, HONORABLE JOE E. KELLY, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of possessing four hundred grams or more of methamphetamine with intent to deliver and assessed punishment at imprisonment for seventy-five years and a $125,000 fine. Texas Controlled Substances Act, 68th Leg., R.S., ch. 425, § 6, 1983 Tex. Gen. Laws 2361, 2373 (Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 4.03, since repealed and codified at Tex. Health & Safety Code Ann. § 481.112 (West 1992)). On appeal, this Court reversed the judgment and remanded the cause for a new trial on punishment only. Martinez v. State, No. 3-86-242-CR (Tex. App.--Austin 1988, pet. ref'd) (not designated for publication); see Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 1993). On remand, a new jury was empaneled which, after hearing evidence, assessed punishment at imprisonment for ninety-nine years and a $250,000 fine.

Article 44.29(b) provides that when an appellate court awards a defendant a new trial on the basis of error at the punishment stage, the new trial shall be limited to punishment only. In his first point of error, appellant notes that the crime for which he was convicted was committed before article 44.29(b) was enacted and argues that its application to him violates the constitutional guarantees against ex post facto or retroactive legislation. U.S. Const. art. I, § 9, cl. 3; Tex. Const. art. I, § 16. This argument has been presented to and rejected by the Court of Criminal Appeals. Grimes v. State, 807 S.W.2d 582 (Tex. Crim. App. 1991). Appellant also asserts that the application of article 44.29(b) in this cause denied him due process and equal protection of law, but offers no argument or authority in support of this contention. The first point of error is overruled.

By his second point of error, appellant complains that he was not awarded all the time credit to which he is entitled. See Tex. Code Crim. Proc. Ann. art. 42.03, § 2 (West Supp. 1993), § 3 (West 1979). The judgment contains a time credit of 195 days. The State concedes in its brief that appellant is entitled to additional credit for time served. We will sustain this point of error and reform the judgment to reflect the amount of time credit supported by the record before us.

The original judgment of conviction in this cause, dated June 16, 1986, contained a time credit of 73 days. Appellant was not eligible for bail pending appeal and he remained incarcerated until July 17, 1989, when he was released on bail following this Court's original judgment. See Tex. Code Crim. Proc. Ann. art. 44.04(b), (h) (West Supp. 1993). Thus, as of July 17, 1989, appellant had accrued 1200 days of time credit in this cause. Appellant contends that he is entitled to additional credit for time he later spent in federal prison subject to a detainer from Caldwell County. See Ex parte Williams, 551 S.W.2d 416 (Tex. Crim. App. 1977). The record, however, is silent as to appellant's custody status from July 17, 1989, until September 3, 1991. On that date, this docket entry was made: "Pass--Defendant in Levenworth, KA--reset." From this, it can be inferred that as of September 3, 1991, appellant was in federal prison and subject to a detainer from Caldwell County. It is also reasonable to infer that appellant was taken into actual custody in this cause upon his release from federal prison. This entitles appellant to another 203 days of time credit through the date of the new judgment, March 24, 1992.

Finally, appellant argues that he is entitled to consideration for good-time credit. While it is true that appellant is entitled to such consideration, the actual award of good-time credit is within the discretion of the director of the Department of Criminal Justice, Institutional Division. Ex parte Palomo, 759 S.W.2d 671 (Tex. Crim. App. 1988); Tex. Gov't Code Ann. § 498.003 (West Supp. 1993).

The judgment of the district court is reformed to reflect a time credit of 1403 days. As reformed, the judgment is affirmed.

[Before Justices Powers, Kidd and B. A. Smith]

Reformed and, as Reformed, Affirmed

Filed: February 10, 1993

[Do Not Publish]