Marquis Willoughby v. State ( 2017 )


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  •                                    NO. 12-16-00176-CR
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    MARQUIS WILLOUGHBY,                               §       APPEAL FROM THE 241ST
    APPELLANT
    V.                                                §       JUDICIAL DISTRICT COURT
    THE STATE OF TEXAS,
    APPELLEE                                          §       SMITH COUNTY, TEXAS
    MEMORANDUM OPINION
    Marquis Willoughby appeals his conviction for aggravated robbery. Appellant argues
    that the trial court erred by failing to give him credit for his full amount of presentence jail time.
    We affirm.
    BACKGROUND
    Appellant was charged by indictment with aggravated robbery.              Pursuant to a plea
    bargain agreement with the State, Appellant pleaded “guilty” to the offense, and the trial court
    deferred a finding of guilt and placed him on community supervision for a term of ten years.
    Subsequently, the State filed an application to proceed to final adjudication. Appellant
    pleaded “true” to one allegation and “not true” to four others. After giving both parties an
    opportunity to present evidence and arguments, the trial court granted the application, revoked
    Appellant’s community supervision, and assessed his punishment at imprisonment for thirty-five
    years. This appeal followed.
    TIME SERVED CREDIT
    Appellant argues that the trial court erred by failing to credit him with his full amount of
    presentence jail time. In all criminal cases, the trial court is required to give the defendant credit
    on his sentence for his presentence jail time. TEX. CODE CRIM. PROC. ANN. art. 42.03 § 2(a)(1)
    (West Supp. 2016). In this case, the trial court orally pronounced that credit for time served was
    granted. The trial court’s judgment credits Appellant with 204 days. Appellant argues that the
    record shows he is entitled to credit for 605 days, and that we should modify the judgment
    accordingly.
    In support of his argument, Appellant directs us to a document in the district clerk’s
    record titled “Written Plea Admonishments and Stipulation of Evidence.” In the margin of that
    document is a handwritten notation stating the following:
    Time Credit =   7/4/14—11/7/14
    10/9/15—11/12/15
    2/10/15—present
    The document was signed by Appellant, his counsel, and the trial judge on April 27, 2016, the
    date Appellant was sentenced. Appellant calculates his time served as 127 days, 35 days, and
    443 days, for a total of 605 days. But the second and third time periods in the notation overlap,
    giving Appellant credit twice for the period of October 9, 2015 through November 12, 2015.
    Therefore, even assuming a handwritten time credit notation is sufficient evidence of presentence
    jail time, it is not sufficient here because the notation is inaccurate.
    The State contends that the record does not establish that the time credited to Appellant in
    the judgment is incorrect, and suggests that a motion for judgment nunc pro tunc is the
    appropriate means of challenging his jail time credit rather than this direct appeal. We agree.
    When a defendant has been denied presentence jail time credit, the preferred practice is for the
    trial court to enter a nunc pro tunc order authorizing credit for the appropriate time. Ex parte
    Evans, 
    964 S.W.2d 643
    , 646 n.2 (Tex. Crim. App. 1998). If Appellant’s presentence jail time
    credit is inaccurate because of an oversight or omission, his sentence may be corrected by nunc
    pro tunc proceedings in the trial court following receipt of the mandate of this court. Valdez v.
    State, 
    479 S.W.2d 927
    , 928-29 (Tex. Crim. App. 1972).
    In arguing that we should reform his judgment, Appellant cites caselaw for the
    proposition that we have the authority to reform a judgment when we have before us the
    information necessary to do so. See Thompson v. State, 
    108 S.W.3d 287
    , 290 (Tex. Crim. App.
    2003); Cobb v. State, 
    95 S.W.3d 664
    , 668 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
    2
    However, we do not have before us the information necessary to reform the judgment in this
    case. Accordingly, we overrule Appellant’s sole issue.
    DISPOSITION
    Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
    GREG NEELEY
    Justice
    Opinion delivered July 19, 2017.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
    (DO NOT PUBLISH)
    3
    COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
    JUDGMENT
    JULY 19, 2017
    NO. 12-16-00176-CR
    MARQUIS WILLOUGHBY,
    Appellant
    V.
    THE STATE OF TEXAS,
    Appellee
    Appeal from the 241st District Court
    of Smith County, Texas (Tr.Ct.No. 241-1163-14)
    THIS CAUSE came to be heard on the appellate record and briefs filed
    herein, and the same being considered, it is the opinion of this court that there was no error in the
    judgment.
    It is therefore ORDERED, ADJUDGED and DECREED that the judgment
    of the court below be in all things affirmed, and that this decision be certified to the court
    below for observance.
    Greg Neeley, Justice.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
    

Document Info

Docket Number: 12-16-00176-CR

Filed Date: 7/19/2017

Precedential Status: Precedential

Modified Date: 7/24/2017