Acosta v. State

Full title: AMADOR ACOSTA, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Oct 28, 2003

No. 08-01-00509-CR (Tex. App. Oct. 28, 2003)

Opinion

No. 08-01-00509-CR.

October 28, 2003. DO NOT PUBLISH.

Appeal from the 168th Impact Judicial District Court of El Paso County, Texas (TC# 20000D02720)

Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.

MEMORANDUM OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a sentence imposed after a revocation of community supervision. The trial court assessed punishment at two (2) years' confinement and credited 50 days served. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On July 17, 2000, Appellant waived his right to a jury trial and pleaded guilty to the offense of possession of marijuana in an amount over 5 pounds but under 50 pounds. In accordance with a plea bargain, the trial court assessed punishment at six (6) years but suspended the sentence and placed Appellant on community supervision for six (6) years. On May 23, 2001, the State filed a motion to revoke Appellant's community supervision, alleging Appellant violated his probationary terms and conditions. The hearing on the State's motion to revoke was held on December 10, 2001. At this hearing, Appellant pleaded true to the State's allegation that he possessed between 50 and 2,000 pounds of marihuana in Dona Ana County, New Mexico. The trial court then revoked Appellant's community supervision and sentenced him to two (2) years' confinement. Appellant then raised a question as to how much jail time he should be credited. Appellant argued that he served fifteen months at La Tuna Federal Correctional Institution (La Tuna). Appellant urged that he was entitled to credit from the date the State knew of his confinement at La Tuna. Appellant's probation officer testified that a capias warrant for Appellant was issued in May of 2001, but that the warrant was not lodged with La Tuna authorities until October 23, 2001. After being asked by the trial court why there was a five month gap, the probation officer responded by saying that his office had difficulty in determining Appellant's exact location in the federal prison system. Additionally, the probation officer had difficulty in urging the Sheriff's Department to teletype the capias warrant to La Tuna. After Appellant argued to the court that Appellant should be credited time from May 23, 2001, the day the capias warrant was issued, the trial court denied Appellant his request for the credit and credited Appellant from October 23, 2001, the day the warrant was lodged until the date of sentencing. Appellant additionally made an argument based on the equitable powers of the court to grant Appellant credit since May 23, 2001 because Appellant felt that the probation officer was made aware of Appellant's federal custody since at least that time. However, the trial court refused to grant Appellant's request. Appellant was credited with 50 days for time served by way of a judgment nunc pro tunc.

II. DISCUSSION

In his sole point of error, Appellant argues that he should be credited time for additional time served to date from May 23, 2001 when the capias issued. Specifically, Appellant contends that he is equitably entitled jail time credit from when the State knew of Appellant's federal imprisonment until the time of his sentencing. Appellant maintains that the State should not be able to delay filing a detainer or hold until the close of the federal sentence in order to disallow jail time credit.¹ The statutory law that governs credit for time served is Article 42.03, Section 2(a) of the Texas Code of Criminal Procedure which provides:

In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court.

Tex. Code Crim. Proc. Ann. art. 42.03 (Vernon Supp. 2003). Pursuant to Article 42.03, Section 2(a), a defendant is entitled to credit for all time spent in jail "on said cause." See Ex parte Bynum, 772 S.W.2d 113, 114 (Tex.Crim.App. 1989). Entitlement to jail time credit may be based upon either actual or constructive custody. Ex parte Hudson, 655 S.W.2d 206, 208 (Tex.Crim.App. 1983). When a person having a criminal case in one jurisdiction is confined — either physically or constructively — by another jurisdiction, he is confined "on said cause" only if a detainer or "hold" is lodged against him by the first jurisdiction. Bynum, 772 S.W.2d at 114. The rationale for allowing a time credit under a detainer is that the hold results in a "change in the basis for (a prisoner's) confinement." Bynum, 772 S.W.2d at 115; see Ex parte Alvarez, 519 S.W.2d 440, 443 (Tex.Crim.App. 1975). As explained in Bynum, the filing of a detainer or hold by another jurisdiction may have adverse effects on the prisoner. He may be denied opportunities open to other prisoners such as elevation to trusty status or a particular work station. The person's privileges may be curtailed. The individual's chance for early parole may also be disadvantaged, with a correlative concern regarding any rehabilitative process desired by the prison system. Bynum, 772 S.W.2d at 115. Hence, "[w]hen a detainer is lodged, fairness dictates that the spirit of Article 42.03 be followed." Id. "In all such cases, it is not the fact that the individual is currently serving a term in a penal institution which determines whether credit should be given; rather, it is the fact that another jurisdiction has chosen to lodge a hold against the individual." Id. Appellant argues that equity requires the court to give credit to him from May 23, 2001 because that is when the capias issued and this effected knowledge on the part of the State. In support of his argument Appellant cites Greenwood v. State, 948 S.W.2d 542 (Tex.App.-Fort Worth 1997, no pet.). In Greenwood, the defendant's community supervision was revoked and the trial court ordered that her sentence commence upon "arrival at State Jail Facility." Id. at 546. Greenwood appealed contending that she should have been given time credit on several times of confinement. Id. at 544-47. One of those times, the one relevant here, was a twelve day waiting period in transferring Greenwood to a "State Jail Facility." Id. at 546. Based on "equity and the spirit of article 42.03," the appellate court held that Greenwood was entitled to those twelve days credit "because no one from the state jail facility came to pick her up sooner." Id. at 547. While fairness played a role in deciding the case, Appellant's reliance on Greenwood is misplaced because the issue in Greenwood is not when the State was aware of the defendant's confinement, but rather whether Greenwood should have been credited because she was awaiting transfer to a state jail facility and had already been sentenced. Id. at 546. Further, the rationale in Bynum does not support extending constructive custody to these facts since Texas's alleged knowledge of Appellant's incarceration in the La Tuna facility does not result in a change in the basis for his confinement. Bynum, 772 S.W.2d at 115. Texas did not obtain constructive custody of Appellant until October 23, 2001 when the warrant was received at the La Tuna facility. See Ex parte Hernandez, 758 S.W.2d 594, 596-97 (Tex.Crim.App. 1988); Ex parte Pizzalota, 610 S.W.2d 486, 488 (Tex.Crim.App. 1980); Ex parte Newell, 582 S.W.2d 835 , 836 (Tex.Crim.App. 1979). Accordingly, Issue No. One is overruled. Having overruled Appellant's sole issue on review, we affirm the judgment of the trial court.