Brian Ybarra v. State of Texas ( 2001 )

No. 04-00-00654-CR Brian YBARRA, Appellant v. The STATE of Texas, Appellee From the County Court at Law No. 9, Bexar County, Texas Trial Court No. 741382 Honorable Wayne Christian, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: July 25, 2001

AFFIRMED

Brian Ybarra pled no contest to the misdemeanor offense of burglary of a vehicle. Ybarra received two years deferred adjudication, a fine of $350, and fifty hours of community service. Ybarra violated the terms of his deferred adjudication by committing the offense of robbery and the State entered a motion to revoke. The trial court granted the State's motion and sentenced Ybarra to one year in the Bexar County Jail and ordered the sentence to run "day for day." The trial court then issued an Order vacating the requirement that Ybarra's sentence be served "day for day."

Ybarra appeals in two points of error. He claims the trial court was without jurisdiction to order a "day for day" sentence, and without authority to deny him credit for time already served. We affirm because the "day for day" sentence was vacated thereby remedying the error, and because Ybarra served no time in this particular cause for which credit could be given.

The State argues initially that we do not have jurisdiction to consider Ybarra's appeal because Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2000) does not allow it. See also Tex. R. App. P. 25.2(b)(3) (specifying the requirements for an appeal when a defendant pleads guilty or nolo contendere and the punishment does not exceed the punishment recommended by the prosecutor). However, Ybarra's complaints do not challenge his conviction, they challenge the process by which he was sentenced. See Vidaurri v. State, No. 151-99, 2001 WL 687375, at *4 (Tex. Crim. App. 2001). Therefore, we do have jurisdiction to consider Ybarra's points of error.

Ybarra's first point of error contends the trial court was without jurisdiction to order a "day for day" sentence. We find no error because this issue has been corrected by the trial court and is therefore moot. A trial court has the authority to alter orders within the time frame of its plenary power. See Awadelkariem v. State, 974 S.W.2d 721, 726-28 (Tex. Crim. App. 1998) (explaining the authority of the trial court to vacate the granting of a new trial or other ruling within the court's plenary power). In the instant case, the trial court had not exceeded its statutory timetable and was within its authority to vacate the "day for day" sentence. Therefore, we overrule Ybarra's first point of error.

Ybarra complains in his second point of error that the court should have granted him credit for time already served. However, he can only receive credit for time he served in the cause for which he was convicted. See Tex. Code Crim. Proc. art. 42.03 § 2(a) (Vernon Supp. 2001). According to the record, Ybarra did serve time for the offense of felony robbery. However, this was the offense for which Ybarra's deferred adjudication was revoked, not that for which he was granted deferred adjudication. Ybarra's deferred adjudication was based on the misdemeanor offense of burglary of a vehicle and this is the cause for which he was convicted. Ybarra never served any time for the offense of burglary of a vehicle. Therefore, there has been no time served for which to grant Ybarra credit. We overrule Ybarra's second point of error.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH