Ex parte Hernandez, 70263

• Decision Date: 12 October 1988
• Docket Number: No. 70263,70263
• Citation: 758 S.W.2d 594
• Parties: Ex parte Eduardo HERNANDEZ.
• Court: Texas Court of Criminal Appeals

Page 594

758 S.W.2d 594

Ex parte Eduardo HERNANDEZ.

No. 70263.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 12, 1988.

Curtis C. Mason, Huntsville, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is a post-conviction application for writ of habeas corpus brought under the provisions of Article 11.07, V.A.C.C.P. The application was filed in the trial court and the record was subsequently forwarded to this Court.

The record received is altogether too typical of such current post-conviction habeas records forwarded to this Court under the provisions of Article 11.07, supra. All we have received is the sworn habeas application of the applicant, docket sheet of this habeas proceeding with one entry (order denying), the indictment, judgment and sentence of applicant's conviction and the "Memorandum and Order" of the trial court finding "sufficient evidence exists in the record of this cause to reach a determination of the issues brought forward by the applicant" and ordering the record transmitted to this Court. The State filed no answer to applicant's habeas application and no evidentiary hearing was held. There were no findings of fact or conclusions of law by the court. The "order" does not make a recommendation. Only the docket sheet indicates the "writ" was denied. The record as transmitted is meager to say the least, and leaves little except the sworn application of the applicant for this Court to consider. It is difficult for this writer to understand why the trial court and the State would allow records to be forwarded in this condition.

Applicant alleges that on January 13, 1986, he was convicted of unlawful delivery of heroin in the 210th District Court of El Paso County, Texas, and sentenced to serve 30 years in the Texas Department of Corrections. The judgment reflects that the offense was committed "on or about July 7, 1982."

Applicant alleges that prior to his Texas conviction he was received by the New Mexico Corrections Department on July 2, 1984, to serve a sentence for an unidentified conviction; that on July 9, 1984, the El Paso County (Texas) Sheriff's Department requested a detainer be placed by New Mexico authorities on applicant in light of the Texas indictment for unlawful delivery of heroin, and that the request in the form of a letter was received on July 13, 1984, by the New Mexico Corrections Department and honored; that six months later applicant was convicted in El Paso County, Texas, in Cause No. 39045 in the 210th District Court and sentenced to 30 years in the Texas Department of Corrections and was later returned to New Mexico. Applicant further alleges that on November 13, 1986, the Texas Governor signed authorization for deputies to return him to Texas from New Mexico to serve his Texas sentence; that on January 28, 1987, an instrument entered in New Mexico following waiver of extradition, ordered applicant be continued in custody until Texas transported applicant to that state. Applicant was received at the Texas Department of Corrections on March 12, 1987, to serve his Texas sentence.

Applicant further alleges that on January 11, 1988, by letter he requested the judge of the 210th District Court to give him credit on his sentence for time spent in New Mexico under the Texas detainer, and that such credit was denied on the ground that the said district court had no jurisdiction to grant credit for the time applicant was incarcerated in New Mexico.

Applicant urges that he is entitled to credit for all the time spent incarcerated in another jurisdiction when the detainer was placed on him as a result of the cause in which he was later convicted and for which conviction he is now incarcerated in the Texas Department of Corrections. He cites Ex parte Pizzalota, 610 S.W.2d 486 (Tex.Cr.App.1980), and urges he is entitled to credit from the date the detainer request was received by New Mexico and honored (July 13, 1984) to the date he was incarcerated by the Texas Department of Corrections (March 12, 1987). Pizzalota supports applicant's position, but applicant's own allegations clearly indicated he was not in New Mexico during all of this time. At some point he was returned to Texas for trial and some time after trial was returned to New Mexico. These times are not clear from the record before us as no dates are given, but it is observed that the court attempted to give applicant some credit on his sentence though its actions are somewhat confusing.

The date of the sentence in Cause No. 39045 was January 13, 1986, and the date of the sentence does not change. Frequently trial courts try to "back date" the sentence or order the sentence to commence on a date earlier than imposed to give credit for jail time. This is not proper. The sentence is never dated back, but the defendant is merely given credit from the date of confinement to the date of the sentence, or for actual jail time where applicable. The date of the imposition of the sentence always remains the same. See Ex parte Griffith, 457 S.W.2d 60 (Tex.Cr.App.1970); Valdez v. State, 479 S.W.2d 927, 928, n. 3 (Tex.Cr.App.1972); Ex...