Greenwood v. State
| Decision Date | 10 July 1997 |
| Docket Number | Nos. 2-96-302-CR,s. 2-96-302-CR |
| Citation | 948 S.W.2d 542 |
| Parties | Tina Louise GREENWOOD, Appellant, v. The STATE of Texas, State. to 2-96-304-CR. |
| Court | Texas Court of Appeals |
Cindy Stormer, Gainesville, for Appellant.
Janelle M. Haverkamp, District Attorney, John H. Hagler, Gainesville, for Appellee.
Before LIVINGSTON, RICHARDS and HOLMAN, JJ.
On December 9, 1994, appellant Tina Louise Greenwood entered a plea agreement whereby she pleaded guilty to three offenses of forgery by passing checks 1 in exchange for an agreed sentence of two years in a state jail facility, suspended, with five years of community supervision. On April 12, 1996, the State filed a Motion to Revoke Community Supervision alleging that appellant had tested positive for alcohol and cocaine and that she had failed to fully participate in a job search program in violation of the terms of her probation. Appellant pleaded "Not true" to the allegations in the motion. The trial court found that appellant had violated the terms of her probation by drinking alcohol and consuming cocaine. Accordingly, the trial court revoked appellant's probation and sentenced her to two years in the State Jail Division of the Texas Department of Criminal Justice. Appellant appeals the revocation of her probation to this court, alleging twelve points of error. We affirm in part and reverse and remand in part.
In her first point of error, appellant argues the trial court abused its discretion in failing to give her credit for 581 days she served on her sentence prior to her commitment to the Department of Corrections following the revocation hearing.
This case presents an interesting situation in which two separate provisions of the Code of Criminal Procedure are in conflict. On the one hand, article 42.03 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, § 2(a) (Vernon Supp.1997). However, at the time appellant originally pleaded guilty and was placed on community supervision, article 42.12 provided:
(2) A judge may credit against any time a defendant is subsequently required to serve in a state jail felony facility after revocation of community supervision time served by the defendant in county jail:
(A) from the time of the defendant's arrest and confinement until sentencing by the trial court;
(B) as a condition of community supervision under Subsection (d) of this section; and
(C) after modification of community supervision.
(3) A judge shall credit against any time a defendant is subsequently required to serve in a state jail felony facility after revocation of community supervision any time served by the defendant in a state jail facility 2 after sentencing.
Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3732 (emphasis added) (current version at TEX.CODE CRIM. PROC. ANN. art. 42.12, § 15(h) (Vernon Supp.1997)) 3 (hereinafter "former section 15(h)").
Because a revocation hearing is an extension of the original sentencing portion of the trial, it relates to a "criminal case" under article 42.03, section 2(a). See Dittoe v. State, 935 S.W.2d 164, 167 (Tex.App.--Eastland 1996, no pet.). Article 42.03, section 2(a) governs good time credit in "all criminal cases," but former section 15(h) specifically governs credit for time served in probation revocation proceedings in state jail felony cases. Thus, these two provisions are in conflict. See id. at 166-67.
Because these two statutes are in conflict, we must look to the Code Construction Act for guidance. See id. at 167. Section 311.026 of the Government Code provides:
(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.
(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.
TEX. GOV'T CODE ANN. § 311.026 (Vernon 1988). Based on section 311.026, we agree with the Dittoe court that former section 15(h), the specific statute, controls over article 42.03, section 2(a), the more general statute. See id.; Dittoe, 935 S.W.2d at 167.
However, the Court of Criminal Appeals has recently ruled that former section 15(h) does not control in all situations. Where a defendant receives the maximum sentence authorized by law, the equal protection clause of the Fourteenth Amendment requires that the defendant receive credit for pretrial jail time if she was unable to post bond due to indigence, even though former section 15(h) provides that award of such time is discretionary. See Ex parte Harris, 946 S.W.2d 79, 80-81 (Tex.Crim.App.1997) (per curiam); see also Ex parte Chamberlain, 586 S.W.2d 547, 548 (Tex.Crim.App.1979); Caraway v. State, 550 S.W.2d 699, 704-05 (Tex.Crim.App.1977);.
Appellant was originally sentenced to two years' confinement in a state jail facility. This was the maximum possible sentence for her crime. See TEX. PENAL CODE ANN. § 12.35(a) (Vernon 1994). Additionally, the record reflects that the trial court found appellant to be indigent when it appointed her counsel. Therefore, under the holding of Harris, appellant is entitled to the 45 days she served in the county jail between her initial arrest and the hearing at which she pleaded guilty.
In Harris, the Court of Criminal Appeals held that former section 15(h) does apply to time a defendant serves in custody pursuant to the State's motion to revoke probation. See Harris, 946 S.W.2d at 81. This is because a defendant is not entitled to post bond while in custody pursuant to a State's motion to revoke; therefore, the equal protection rule enunciated in Caraway and Chamberlain does not apply. See id.
Therefore, we hold that it was within the trial court's discretion to deny appellant credit for time she served between April 12, 1996, when she was arrested on the revocation warrant, and May 16, 1996, when her probation was revoked and she was sentenced to two years in a state jail facility. See 1993 Tex. Gen. Laws at 3732. 4 Further, based on the record presented to us in this case, we cannot say that the trial court's actions were so arbitrary or unreasonable as to amount to an abuse of that discretion.
We agree with appellant that she is entitled to credit for the twelve days she served in the county jail after the final revocation while she was awaiting transfer to a state jail facility. The trial court's judgment revoking community supervision, dated May 16, 1996, indicated that appellant's sentence was not to begin until "arrival at State Jail Facility." Jail records indicate that appellant was not released to the custody of the state jail division until May 28, 1996. Thus, appellant did not receive credit for the twelve days that she served in the Cooke County Jail after her probation was revoked but before she entered a state jail facility.
This time was not served "from the time of defendant's arrest and confinement until sentencing by the trial court" under former section 15(h). See 1993 Tex. Gen. Laws at 3732. Likewise, because this was time served after appellant was sentenced by the trial court, this time is not covered by article 42.03, section 2(a) as it was not served "from the time of [appellant's] arrest and confinement until [her] sentence by the trial court." See TEX.CODE.CRIM. PROC. ANN. art. 42.03, § 2(a) (Vernon Supp.1997).
Without a statutory provision to govern this situation, we hold that appellant is entitled to credit for the twelve days she served awaiting her transfer to a state jail facility. Equity and the spirit of article 42.03, section 2(a) indicate to us that appellant should not lose the twelve days simply because no one from the state jail facility came to pick her up sooner.
Appellant asserts that she is entitled to credit for the time that she served in the Burnet Subdivision Abuse Felony Punishment Facility and the Salvation Army. The record indicates that on May 8, 1995, the trial court modified appellant's probation and ordered her to serve, as a condition of her probation, a term of confinement and treatment in a substance abuse treatment facility of not less than six months or more than one year followed by a drug or alcohol abuse continuum of care treatment plan. See TEX.CODE CRIM. PROC. ANN. art. 42.12, § 14 (Vernon Supp.1997). Appellant was admitted to the Burnet Subdivision Abuse Felony Punishment Facility pursuant to this order. After completing treatment at the Burnet unit, the court ordered that appellant be released to the Salvation Army as part of the Continuum of Care program required by her probation.
Because this time was neither served in a state jail facility nor in the county jail, it is not governed by former section 15(h). See 1993 Tex. Gen. Laws at 3732. It is, however, governed by article 42.03, section 2(a) which disallows credit for "confinement served as a condition of community supervision." See TEX.CODE CRIM. PROC. ANN. art. 42.03, § 2(a) (Vernon Supp.1997). Therefore, we hold that the trial court did not err in refusing to give appellant credit for any time she served in the...
To continue reading
Request your trial
-
Russo v. Johnson
...530 F.2d at 1236-37; Gremillion, 425 F.2d at 1294); see Morrison v. Johnson, 106 F.3d 127, 129 n. 2 (5th Cir.1997); Greenwood v. State, 948 S.W.2d 542, 546 n. 4 (Tex.App. — Fort Worth 1997, no pet.). The principle enunciated in Gremillion was qualified to some extent by the Fifth Circuit in......
-
Joseph v State
...failing to object in the trial court. B. We now turn to the merits of this point of error. Appellant cites us to the case of Greenwood v. State, 948 S.W.2d 542 (Tex. App.-Fort Worth 1997, no pet.), as support for his request for back time credit. In Greenwood, the trial court revoked the de......
-
Tanguma v. State
...by her inadequate preparation time. See Ramirez v. State, 976 S.W.2d 219, 224-25 (Tex. App.--El Paso 1998, pet. denied); Greenwood v. State, 948 S.W.2d 542, 548 (Tex. App.--Fort Worth 1997, no B. Procedural History of Case The trial court appointed appellant's trial counsel on November 25, ......
-
Ramirez v. State
...Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App.1996), cert. denied, --- U.S. ----, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997); Greenwood v. State, 948 S.W.2d 542, 548 (Tex.App.--Fort Worth 1997, no pet.). In order to find an abuse of discretion in refusing to grant a continuance, there must b......
-
Misdemeanor Defense
...42.01, §1(19).] §15:191 Credit for Time Served It is mandatory that the trial court give credit for time served. [ Greenwood v. State , 948 S.W.2d 542 (Tex. App.—Fort Worth 1997, no pet. ); Ex parte Green , 688 S.W.2d 555, 556 (Tex. Crim. App. 1985).] The judge must record in the judgment a......