Opinion
No. 05-02-00884-CR.
Opinion Filed February 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F00-70900-TJ. AFFIRM As MODIFIED.
Before Justices WRIGHT, FITZGERALD, and LANG.
OPINION
Antonio Perez was convicted, on his negotiated guilty plea, of burglary of a habitation. Pursuant to the plea bargain agreement, the trial court assessed punishment at eight years confinement, probated for five years, and a $300 fine. Subsequently, the trial court revoked community supervision and assessed punishment at four years confinement. In his sole point of error, appellant contends he is entitled to more credit for time served than is reflected in the trial court's judgment. We agree. The record does not show the date of appellant's arrest. The record does show appellant filed an affidavit of indigence on May 3, 2000. The affidavit and the trial court's docket sheet show appellant's book-in number, thus indicating appellant had already been arrested. The record does not show appellant was admitted to bail prior to his June 6, 2000 plea hearing. To the contrary, the trial court's docket sheet lists appellant's bail status as "JAIL." The trial court's judgment revoking community supervision credits appellant's sentence with time served between May 10, 2000 to June 6, 2000 and again for May 9, 2002 to May 21, 2002. Appellant contends his time credit should commence on May 3, 2000. Appellant does not dispute the accuracy of the May 2002 time credit. The State contends appellant may not appeal the calculation of his time credit because "the only question presented in an appeal from an order revoking community supervision is whether the trial court abused its discretion in revoking that supervision." See Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim. App. 1983). The State's authorities, however, involve challenges to the merits of the revocation-not complaints of miscalculated time credits. The State does not cite any authority for the proposition that a defendant may not challenge the time credit awarded following revocation of community supervision or that such a challenge should be reviewed under an abuse of discretion standard. In the absence of any relevant, nondistinguishable authority, we decline to adopt the State's position. The State further contends appellant waived his complaint by failing to object in the trial court. See Tex. R. App. P. 33.1. In challenging the calculation of his time credit, however, appellant is not challenging his conviction; rather, he is challenging the time necessary to fulfill his sentence. Ex Parte Canada, 754 S.W.2d 660, 663 (Tex.Crim.App. 1988); Joseph v. State, 3 S.W.3d 627, 643 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Such a challenge does not require a trial court objection. Joseph, 3 S.W.3d at 643. But see Chunn v. State, 821 S.W.2d 718, 721 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd) (interpreting former rules 50(d) and 52(a) as requiring objection in the trial court before complaining about time credit on appeal). Finally, the State contends the evidence in the record is insufficient to show appellant is entitled to any additional credit. The State theorizes appellant could have bonded out of jail on the same day he was booked into jail. The trial court's docket sheet contradicts the State's position. The record shows appellant was arrested but it does not show he was released on bail. Appellant is entitled to credit against his sentence for all the time, other than that ordered as a condition of probation, he was confined from the date of his arrest until sentencing. See Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2003); Ex parte Kuban, 763 S.W.2d 426, 426 (Tex.Crim. App. 1989). We conclude the evidence is sufficient to show appellant is entitled to additional time credit for the time he spent confined prior to his plea hearing. Thus, we sustain appellant's point of error. We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). We modify the trial court's judgment to reflect time credited of "050300-060600; 050902-052102." Tex. R. App. P. 43.2(b); Asberry, 813 S.W.2d at 529. As modified, the trial court's judgment is affirmed.