Opinion
No. 09-03-516 CR.
Submitted April 19, 2004.
Opinion Delivered April 28, 2004. DO NOT PUBLISH.
On Appeal from the 221st District Court Montgomery County, Texas, Trial Cause No. 95-11-01265-CR. Affirmed.
Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
OPINION
This is an appeal from the granting of a judgment nunc pro tunc. On May 3, 1996, Jerald D. Underwood was convicted of sexual assault and sentenced to nine years of confinement in the Texas Department of Criminal Justice, Institutional Division. On January 7, 2003, Underwood filed a motion for judgment nunc pro tunc in which he alleged that on August 28, 1995, he was arrested for an unrelated offense. Underwood admitted that no detainer was placed on him when the Montgomery County indictment issued, but contended that he was nevertheless entitled to credit on the sentence for the Montgomery County offense for the time that he was detained solely in connection with the unrelated offense. The State opposed Underwood's motion but filed its own motion for judgment nunc pro tunc in which it alleged that Underwood was entitled to back credit for 23 days during which a "Central Jail Records detainer" was in Underwood's file while he was on bench warrant to Midland County. The trial court denied Underwood's motion, granted the State's motion, and entered a judgment nunc pro tunc that increased the time credited from 119 days to 142 days. On appeal, the State filed a motion to dismiss the appeal for lack of jurisdiction. We denied the motion. Underwood did not file a formal brief, but did file a document titled "Writ Letter." Because it contains argument and authorities in which Underwood challenges the trial court's ruling, the so-called "writ letter" functions as a brief and will be addressed as the brief of the appellant. See TEX. R. APP. P. 38.9 ("Because briefs are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case, substantial compliance with this rule is sufficient. . . ."). First, Underwood complains that the State corrected an illegal order. The original judgment apparently stated, "it is further ORDERED that the Defendant reimburse" Montgomery County for restitution, fine, and court-appointed attorney fees as a condition of parole. The State asked the trial court to correct the judgment to recite that the trial court recommended rather than ordered reimbursement. No reporter's record from the sentencing hearing has been filed. Therefore, we cannot determine on this record whether the trial court ordered or merely recommended restitution as a condition of parole. It follows that we cannot conclude that the nunc pro tunc judgment does not accurately reflect what occurred in the trial court. This issue is overruled. Next, Underwood complains that the State's misconduct deprived him of credit on this sentence for time spent under restraint for an unrelated offense. Underwood argues that he is entitled to the back time credit because the State could have placed a detainer on him, although he acknowledges that the Montgomery County District Attorney's Office did not do so. The trial court must give the defendant credit on his sentence for the time that the defendant has spent in jail "in said cause," from the time of arrest until sentencing. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2 (Vernon Supp. 2004). When a person is confined by another jurisdiction, he is confined on "said" cause only if a detainer or jail hold is lodged against him. Ex parte Bynum, 772 S.W.2d 113, 114 (Tex.Crim.App. 1989). Underwood concedes that no jail hold was placed on him during the time period for which he seeks credit. Finally, Underwood complains that the fact that the State discovered previously uncredited jail time proves that he received ineffective assistance of counsel at trial. The issue of effectiveness of counsel is beyond the scope of this appeal, which is limited to the granting of a judgment nunc pro tunc to accurately reflect jail time credit for confinement prior to sentencing. The issues raised by the appellant do not expose error requiring us to order the trial court to vacate its judgment nunc pro tunc. We overrule the appellant's issues.
Underwood does not argue that the trial court could not order restitution to the County under the restitution statute, and we do not decide that issue in this appeal. See TEX. CODE CRIM. PROC. ANN. art. 42.037 (Vernon Supp. 2004).
Arguably, none of the issues raised by the appellant are within the scope of this appeal. The Court of Criminal Appeals has acknowledged that appeal may be taken if the trial court enters a judgment nunc pro tunc. See Moore v. State, 446 S.W.2d 878, 879 (Tex.Crim.App. 1969); see also Ex parte Curry, 712 S.W.2d 878, 880 (Tex. App.-Austin 1986, no pet.). The Court of Criminal Appeals also recognized that a trial court may correct the time credit on a judgment by entering a judgment nunc pro tunc. See Ex parte Harvey, 846 S.W.2d 328, 329 (Tex.Crim.App. 1993). But for matters involving evidence or the exercise of discretion, the exclusive remedy for post-conviction attacks on a judgment is through habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2004).