Brown v. Beto, Civ. A. No. 72-H-724.

• Decision Date: 25 May 1973
• Docket Number: Civ. A. No. 72-H-724.
• Parties: Milton BROWN, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

359 F. Supp. 118

Milton BROWN, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 72-H-724.

United States District Court, S. D. Texas, Houston Division.

May 25, 1973.

Harry H. Walsh, Staff Counsel for Inmates, Texas Dept. of Corrections, Huntsville, Tex., for petitioner.

John L. Hill, Atty. Gen. of Tex., Ralph A. Rash, Asst. Atty. Gen., Austin, Tex., for respondent.

MEMORANDUM OPINION:

SEALS, District Judge.

This is a proceeding for the writ of habeas corpus under 28 U.S.C. § 2254. The Petitioner was charged with possession of a pistol on premises where alcoholic beverages were sold and consumed in violation of Article 483, Vernon's Ann. Texas Penal Code, and convicted upon his plea of guilty in the 179th District Court of Harris County, Texas in Cause No. 140112 on March 23, 1970. He was sentenced to five years in the penitentiary, the maximum penalty provided under Texas law for this offense. No appeal was taken. Petitioner is also serving a concurrent three-year sentence imposed upon his plea of guilty to a charge of attempted burglary in Cause No. 13587 in the 105th District Court of Nueces County, Texas.

The Petitioner raises here the issue of whether or not he is entitled to credit on his sentence in Cause No. 140112 for a period of confinement beginning with his arrest in Harris County on March 21, 1969 until his trial in Cause No. 140112 on March 23, 1970. On December 11, 1972 this Court conducted an evidentiary hearing as provided by 28 U.S.C. § 2243. This Memorandum Opinion constitutes the Court's Findings of Fact and Conclusions of Law.

The evidence indicates that the Petitioner was arrested by officers of the Houston Police Department on March 21, 1969 for possessing a prohibited weapon, a pistol, on premises where alcoholic beverages were sold and consumed under license of the Texas Alcoholic Beverage Commission. After admission to the Houston City Jail, bond was initially set in the sum of $800.00. At that time Petitioner stated that he had a check and cash in the approximate sum of $170.00 in his possession and that he had no other property or income. Several days later he was transferred to the custody of Harris County authorities, as is the usual practice, presumably to await some disposition of the charges for which he had been originally jailed. The $800.00 bond previously set was apparently disallowed when, after several days, it became apparent that Petitioner was wanted by authorities in Nueces County, Texas for charges pending in their jurisdiction. Bail was never reset even though the offenses with which Petitioner was charged were clearly bailable under Article 1.07, Texas Code of Criminal Procedure, Vernon's Ann.

On September 1, 1969, Petitioner was transferred from the Harris County Jail to the custody of Nueces County authorities for trial in that jurisdiction in Cause No. 13587. On October 10, 1969 Petitioner appeared before the Judge of the 105th District Court, Nueces County, waived formal arraignment, pled guilty, and was sentenced to three years in the Texas Department of Corrections. The sentence in the Nueces County conviction in Cause No. 13587 ordered that the sentence was to begin to run as of March 21, 1969, the date Petitioner was initially arrested in Harris County, Texas. On November 2, 1969, Petitioner was transferred to the Texas Department of Corrections. Shortly thereafter a detainer was placed against the Petitioner by the Harris County authorities with the Texas Department of Corrections to secure his appearance in Cause No. 140112 of which there had been no final disposition.

At the evidentiary hearing held in this cause, the State offered no evidence or testimony to controvert any of the allegations or claims advanced by the Petitioner. The Respondent contends, however, on the basis of a recitation set forth in the sentence in Cause No. 13587, that Petitioner's arrest on March 21, 1969 in Harris County was occasioned as a result of the charges pending in Nueces County, Texas. Such recitation is that "... the judgment and sentence in this cause shall begin to run from and after the 21st day of March, 1969, the date the defendant was placed in jail in this cause." Respondent argues that this language in the sentence of Cause No. 13589 proves that the defendant was arrested in Harris County not for the offense of carrying a pistol but because of the offense or offenses committed in Nueces County. It should be noted, however, that this language is in the nature of a printed form recitation rather than an original handwritten or typed addition. Furthermore, Petitioner denies that he was arrested in Harris County on the basis of the Nueces County charges but insists that his arrest stems from the pistol offense. In light of Petitioner's testimony together with the fact that the State has presented no testimony or evidence from the arresting officers which is presumably readily available to the State, the Court finds that Petitioner's arrest on March 21, 1969 was for the offense of unlawful possession of a pistol on premises where alcoholic beverages are served for which offense Petitioner was later convicted in Cause No. 140112 in the District Court of Harris County, Texas.

The State has conceded that for the purposes of this proceeding the Petitioner was in fact indigent. Petitioner testified that immediately after his arrest in Harris County bond was set in the sum of $800.00 which he was unable to post. The evidence indicates that after being transferred from the City facility to the Harris County Jail, no bond of any sort was permitted as a result of the information received from Nueces County relative to the charges pending there. If true, this procedure would appear to violate Article 1.07 of the Texas Code of Criminal Procedure which provides that bail shall be available in all cases except capital offenses where the proof is evident. Since Petitioner was not charged with any capital offense, it is clear that under Texas law bail could have and should have been set regardless of the other offenses. Therefore, the Court finds that the Petitioner was indigent at the time of his arrest on March 21, 1969 and remained in such condition through his trial of March, 1970 and that as a result he was at all times unable to make bond.

The case of Gremillion v. Henderson, 425 F.2d 1293 (C.A.5, 1970), states the general rule governing credit on sentence for time spent in custody prior to conviction, and Hart v. Henderson, 449 F.2d 183 (C.A.5, 1971), delineates the exception to that rule. Gremillion holds that there is no federal constitutional right to credit for time served prior to being sentenced. In that case the defendant/petitioner had not been sentenced to the maximum imposable sentence for the offense convicted. Also, there was no...