Larry Whitmire v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-22-00288-CR
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LARRY WHITMIRE, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 23000
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MEMORANDUM OPINION
Larry Whitmire appeals the trial court’s denial of his request to modify the
judgment finding him guilty and imposing his sentence. Whitmire claims he is
entitled to credit for additional time served. Finding no error, we affirm.
Background
In Trial Cause No. 23000, Whitmire waived a jury trial and after a bench trial
the trial court found Whitmire guilty of the offense of evading arrest with a motor
vehicle as alleged in the indictment. Whitmire elected for the trial court to assess
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punishment. On July 11, 2022, the trial court announced Whitmire’s sentence at five
years of imprisonment, with credit for time served. The written judgment of
conviction filed the same day credited Whitmire with five days of time served.
On August 2, 2022, Whitmire filed what he styled as a “Motion for Nunc Pro
Tunc Correction of Judgment[,]” requesting the trial court give him credit in Cause
No. 23000 for 413 days (from December 16, 2015 to January 31, 2017) that he spent
in jail. Whitmire asserted in his motion that Exhibits B and C attached to the motion
evidenced that he was sent to TDCJ on December 16, 2015, and on January 31, 2017,
he was released on parole. On August 4, 2022, Whitmire filed a motion for new trial,
which was overruled by operation of law.
On August 5, 2022, the State filed its Response to Defendant’s Motion for
Nunc Pro Tunc Correction of Judgment, arguing that Whitmire was arrested in this
case on March 14, 2014 and released on March 19, 2014 (4 days credit), he first
appeared in court on the offense for which he was indicted on November 20, 2019,
after numerous re-settings Whitmire failed to appear for an August 27, 2021 hearing,
and he was arrested again for the offense on November 16, 2021 and released the
same day (giving him 1 day credit). According to the State, Whitmire was
misleading the court and that all time periods of incarceration for which he was
seeking credit were for another case – Case No. 19980 for the offense of Driving
While Intoxicated – as evidenced by Exhibit B to Whitmire’s motion.
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Jurisdiction
We first address the State’s argument on appeal that this Court lacks
jurisdiction to consider Whitmire’s appellate issue because the denial of a motion
for nunc pro tunc judgment is not an appealable order. Looking to the substance of
Whitmire’s “Motion for Nunc Pro Tunc Correction of Judgment[,]” rather than its
title, we construe his motion as a motion to modify the judgment. See Ex parte
Caldwell, 58 S.W.3d 127, 130 (Tex. Crim. App. 2000), superseded by statute on
other grounds as stated in Druery v. State, 412 S.W.3d 523, 534 (Tex. Crim. App.
2013) (courts look to the substance of a pleading or motion, not its title, to determine
its effect); see also Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (courts look
to the substance of a pleading rather than its caption or form to determine its nature).
The trial court imposed Whitmire’s sentence in open court on July 11, 2022. At that
point in time, to be timely, Whitmire had thirty days to file his notice of appeal and
thirty days to file a motion for new trial. See Tex. R. App. P. 26.2(a). On August 2,
2022, within thirty days of the imposition of sentence, Whitmire filed the motion to
modify the judgment of conviction which credited five days of time served, and on
August 4, 2022, also within thirty days of the imposition of sentence, he filed his
motion for new trial. The filing of Whitmire’s motion for new trial extended the
filing deadline for Whitmire’s notice of appeal to ninety days from the date his
sentence was imposed. See id. The trial court had plenary power on August 16, 2022,
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when it denied Whitmire’s “Motion for Nunc Pro Tunc Correcting of Judgment[.]”
See State v. Aguilera, 165 S.W.3d 695, 697-98 (Tex. Crim. App. 2005) (A trial
court’s plenary power expires thirty days after the sentence or an appealable order is
signed, unless a party files a post-judgment motion for new trial.). Whitmire’s appeal
was filed on August 25, 2022, and it was timely. See Tex. R. App. P. 26.2(a).
Accordingly, we have jurisdiction over the appeal. Cf. Abbott v. State, 271 S.W.3d
694, 695-96, n.6 (Tex. Crim. App. 2008) (defendant filed a motion to correct a
judgment to reflect time credit, but his notice of appeal was from the order denying
his time-credit motion and not from the judgment reflecting no time credit, and the
notice of appeal that was filed was not timely because it was not filed within thirty
days of the date sentence was imposed).
Trial Court’s Denial of the Motion
Next, we address Whitmire’s issue on appeal that the trial court abused its
discretion in denying Whitmire’s motion to modify the judgment to credit him the
proper amount of time served. In all criminal cases, the judge of the court in which
the defendant is convicted “shall give” the defendant credit on his sentence for the
time he spent “in jail for the case, [] excluding confinement served as a condition of
community supervision,” from the time of arrest and confinement until sentenced by
the trial court. Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1); see also Ex parte
Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). “In the event the court fails
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to award such credit at the time the sentence is imposed, the trial court has the
authority to correct the judgment to reflect the appropriate time credit by nunc pro
tunc order and should do so.” Ex parte Ybarra, 149 S.W.3d at 148 (citing Tex. R.
App. P. 23.2).
On appeal, Whitmire argues he was entitled to 570 days of credit for time
served. According to Whitmire, at the hearing on Whitmire’s motion, he argued that
although he was out on bond on this charge, he was put in jail on another charge but
that the warrant for his arrest in this case was executed at the same time he was
incarcerated on the other charge. Exhibits B and C attached to Whitmire’s motion
show that Whitmire’s time served from December 16, 2015 through January 31,
2017 was in Cause No. 19980 for the offense of driving while intoxicated. Based on
the record before us, we conclude the time served from December 16, 2015 to
January 31, 2017 was time served for another case. Accordingly, Whitmire is not
entitled to receive credit in Cause No. 23000 for the time he spent in jail on the other
case. See Ex parte Crossley, 586 S.W.2d 545, 546 (Tex. Crim. App. 1979); Ex parte
Alvarez, 519 S.W.2d 440, 443 (Tex. Crim. App. 1975); Collins v. State, 318 S.W.3d
471, 473 (Tex. App.—Amarillo 2010, pet. ref’d). There is nothing to show that
Whitmire was being held “in jail for the case”—Cause No. 23000—for any more
than the five days credited in the judgment. We affirm the trial court’s order denying
Whitmire’s motion.
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AFFIRMED.
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LEANNE JOHNSON
Justice
Submitted on April 4, 2023
Opinion Delivered April 19, 2023
Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.
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