Robert Bertrand v. State ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00374-CR
____________________
ROBERT BERTRAND, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 22526
________________________________________________________________________
MEMORANDUM OPINION
Robert Bertrand (Bertrand) was indicted for unauthorized use of a vehicle.
See Tex. Penal Code Ann. § 31.07 (West 2011). He pleaded guilty to the offense,
and the trial court assessed his punishment at confinement for one year. After a
hearing on credit for time served, the court credited Bertrand with fifty days. In a
single appellate issue, Bertrand argues that the trial court erred in its computation
of credit for time served. We affirm.
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FACTUAL BACKGROUND
On March 8, 2013, Bertrand was arrested for the offense of unauthorized use
of a vehicle. On March 9, 2013, he posted bail and he was released from custody.
Bertrand was then indicted on December 19, 2013, and a capias for his arrest was
issued on December 20, 2013. The return of service on the capias shows Bertrand
was arrested on December 23, 2013, but it was only partially completed, leaving
blank the section stating “( ) taking his/her bond, which is herewith returned, ( )
placing him in County Jail of _______ County, Texas[.]”
The State filed an application for bench warrant on June 5, 2014, which
indicated that Bertrand was believed to be confined in the William G. McConnell
Unit in Beeville. The Hardin County Sheriff’s Department retrieved Bertrand from
Beeville. Bertrand was then transported to the Hardin County jail on June 19,
2014. Bertrand remained in the Hardin County jail for fifty days, until his
sentencing hearing on August 7, 2014.
Bertrand entered a plea of “guilty” to the charge of unauthorized use of a
vehicle. Under the terms of his plea agreement, Bertrand waived his right of appeal
except as to the issue of credit for time served. The court accepted the plea
agreement and sentenced Bertrand to one year in state jail. The court then heard
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arguments and testimony concerning how much credit Bertrand should receive for
time served.
Captain David Burrous (Burrous) with the Hardin County Sheriff’s
Department testified that Bertrand was arrested in Hardin County on October 26,
2013, for public intoxication and for a Harris County charge. Bertrand was
released from Hardin County on November 4, 2013, and turned over to the Harris
County authorities. On December 24, 2013, Bertrand was then released from the
Harris County authorities and turned over to Jefferson County and subsequently to
the Texas Department of Criminal Justice on the Jefferson County charges until
June 19, 2014, when the Hardin County Sheriff’s Department took him into
custody. Burrous testified that Hardin County did not have a “hold on [Bertrand]”
at any time. Burrous agreed that Bertrand’s original bond rolled over, and Burrous
explained that there was no need to put a hold on Bertrand because “he was out on
a bond with a bonding company in good standing with [Hardin C]ounty.”
Bertrand’s attorney argued that he should receive credit for time served from
the date of his indictment by Hardin County in December 2013 because Bertrand
was already incarcerated at that time and the Hardin County District Attorney
knew he was already incarcerated. The court gave Bertrand credit for fifty days
served. Bertrand timely filed his notice of appeal.
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ISSUE ON APPEAL
In a single issue, Bertrand argues he should have been credited for time he
served from December 23, 2013, until August 7, 2014, for a total of 227 days,
rather than the fifty days credited by the trial court. The State argues that the
appropriate procedure for Bertrand to obtain the pre-sentence jail-time credit he
seeks is to present the issue to the trial court by way of a nunc pro tunc motion and,
if the trial court fails to respond, to seek mandamus relief in the court of appeals.
Accordingly, the State has filed a motion to dismiss this appeal for want of
jurisdiction. In the alternative, the State argues that Bertrand is not entitled to credit
for additional time served because the credit sought is not for incarceration under
this case.
NUNC PRO TUNC JUDGMENTS
The purpose of a nunc pro tunc judgment is to provide a method for trial
courts to correct the record when a discrepancy exists between the judgment as
pronounced in court and the judgment as reflected in the record. See Blanton v.
State, 369 S.W.3d 894, 897-98 (Tex. Crim. App. 2012) (citing Collins v. State, 240
S.W.3d 925, 928 (Tex. Crim. App. 2007) and Alvarez v. State, 605 S.W.2d 615,
617 (Tex. Crim. App. 1980)); see also Tex. R. App. P. 23.1. The corrections must
reflect the judgment that was actually rendered but that was not properly entered
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into the record at the time of the judgment. See Jones v. State, 795 S.W.2d 199,
201 (Tex. Crim. App. 1990) (“[A] judgment may be ‘entered’ nunc pro tunc if it
was in fact ‘rendered,’ but not recorded, at an earlier time.”).
Corrections to the record are limited to clerical errors and are not appropriate
for errors involving judicial reasoning. See Ex parte Poe, 751 S.W.2d 873, 876
(Tex. Crim. App. 1988). “This means that a trial court can fix a clerical error in the
record, but only errors that were not the result of judicial reasoning are considered
clerical errors that can be fixed by a nunc pro tunc order.” Collins, 240 S.W.3d at
928 (citing Poe, 751 S.W.2d at 876). The determination of whether an error is
clerical or judicial is a matter of law, but a nunc pro tunc judgment is improper if it
modifies, changes, or alters the original judgment pronounced in court, or has the
effect of making a new order. See Blanton, 369 S.W.3d at 898 (citing Poe, 751
S.W.2d at 876 and Ex parte Dickerson, 702 S.W.2d 657, 658 (Tex. Crim. App.
1986)).
Article 42.03, Section 2(a)(1) of the Texas Code of Criminal Procedure
governs credit for time served and provides that:
[i]n all criminal cases the judge of the court in which the
defendant is convicted shall give the defendant credit on the
defendant’s sentence for the time that the defendant has spent [] in jail
for the case, including confinement served as described by Article
46B.009 and excluding confinement served as a condition of
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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)(1) (West Supp. 2014). 1 Pursuant to
Article 42.03, Section 2(a), a defendant is entitled to credit for all time spent “in
jail for the case.” Id.; see Ex parte Bynum, 772 S.W.2d 113, 114 (Tex. Crim. App.
1989) (“It is settled that an individual is entitled to all time spent in jail ‘on said
cause.’”). “The trial court is required to grant the [defendant] pre-sentence jail time
credit when [the] sentence is pronounced.” See Ex parte Ybarra, 149 S.W.3d 147,
148 (Tex. Crim. App. 2004).
Article 42.03 only entitles a defendant to credit for the time a defendant is
incarcerated as to the case in which he is ultimately tried and convicted. See
Collins v. State, 318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet. denied);
see also Benefield v. State, No. 02-14-00099-CR, 2015 Tex. App. LEXIS 1840, at
**17-18 (Tex. App.—Fort Worth Feb. 26, 2015, no pet.) (in a conviction for a
charge of continuous violence against the family, the defendant was not entitled to
credit for prior incarceration under a charge of injury to a child); Blackerby v.
State, No. 03-11-00272-CR, 2012 Tex. App. LEXIS 10191, at **11-13 (Tex.
App.—Austin Dec. 5, 2012, no pet.) (mem. op., not designated for publication)
1
Article 46B.009 concerns credit for confinement resulting from proceedings
to determine competency to stand trial and is not applicable to this matter.
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(explaining appellant not entitled to jail-time credit on intoxication manslaughter
conviction for time spent in jail after arrest for felony DWI when not indicted for
intoxication manslaughter until later date); Martinez v. State, No. 13-04-00085-CR,
2005 Tex. App. LEXIS 6000, at *8 (Tex. App.—Corpus Christi July 28, 2005, no
pet.) (mem. op., not designated for publication) (“A trial court must award credit
for time served for the same offense and not time incarcerated pre-trial for
independent offenses.”). If a defendant can show indisputably that he has been
denied jail-time credit for a period of pretrial incarceration for the identical case for
which he was convicted and sentenced, he is entitled to relief from the convicting
court in the form of a judgment nunc pro tunc and, failing that, by writ of
mandamus in the court of appeals. See In re Brown, 343 S.W.3d 803, 805 (Tex.
Crim. App. 2011) (orig. proceeding) (per curiam).
Bertrand argues that he is entitled to credit for the time he was incarcerated
in Jefferson County and with the Texas Department of Criminal Justice. He
contends that such time should count as incarceration for his indictment and
subsequent conviction in Hardin County for unauthorized use of a vehicle.
Whether all such incarceration is for the same “case” for purposes of Article 42.03,
Section 2(a)(1) is a judicial rather than a ministerial function. See id. This type of a
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judicial function is not subject to revision by a judgment nunc pro tunc because the
alleged error is not a “clerical” error. See id.
The written judgment matches the judgment pronounced in court. The trial
court heard testimony concerning Bertrand’s pre-conviction jail-time served and
considered the competing arguments concerning how much credit he merited. The
error Bertrand alleges on appeal concerns the court’s judicial reasoning, not a
clerical error. See id. Therefore, a judgment nunc pro tunc is not the proper remedy
to address Bertrand’s issue. See Collins, 240 S.W.3d at 928. Therefore, we deny
the State’s motion to dismiss.
ENTITLEMENT TO JAIL-TIME CREDIT
Entitlement to jail-time credit may be based upon either actual or
constructive custody. See Ex parte Hudson, 655 S.W.2d 206, 208 (Tex. Crim. App.
1983), overruled on other grounds by Ex parte Hale, 117 S.W.3d 866, 872 (Tex.
Crim. App. 2003). When a person having a criminal case in one jurisdiction is
confined, either physically or constructively, by another jurisdiction, he is confined
on the same case only if a detainer or hold is lodged against him by the first
jurisdiction. See Bynum, 772 S.W.2d at 114. The rationale for allowing jail-time
credit under a detainer is that the hold results in a “‘change in the basis for (a
prisoner’s) confinement.’” Id. at 115 (quoting Ex parte Alvarez, 519 S.W.2d 440,
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443 (Tex. Crim. App. 1975)). When one jurisdiction files a detainer or hold on a
prisoner held by another jurisdiction, the prisoner may experience adverse effects:
A person may be denied opportunities open to other prisoners such as
elevation to trusty status or a particular work station. The person’s
privileges may be curtailed. The individual’s chance for early parole
may also be disadvantaged, with a correlative concern regarding any
rehabilitative process desired by the prison system. In general terms,
as our earlier cases have noted, the prisoner is in the constructive
detention of the jurisdiction lodging the detainer. Although not in
physical custody, he nevertheless may be required, pursuant to the
detainer, to be subjected to the criminal process of the jurisdiction
placing the hold on him. Thus, the act of lodging a detainer or hold
may in ways visible or subtle “change in the basis” for the prisoner’s
confinement on the original offense for which he was sentenced.
When a detainer is lodged, fairness dictates that the spirit of Art.
42.03 be followed.
See Bynum, 772 S.W.2d at 115. It is not the fact that the individual is currently
serving a term in a penal institution that determines whether credit should be given,
but rather the fact that another jurisdiction has chosen to put a hold against the
individual. Id.; see also Nixon v. State, 572 S.W.2d 699, 701 (Tex. Crim. App.
1978) (“when [a defendant] is confined by another jurisdiction, he is confined ‘on
said cause’ only if a detainer or hold is lodged against him.”). “No formal detainer
is required if it is established by some other means that the prisoner was detained
in that cause . . . .” Ex parte Hannington, 832 S.W.2d 355, 356 (Tex. Crim. App.
1992). If a hold was placed on the defendant, then a defendant should be credited
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with all such time he was incarcerated in another jurisdiction and the hold was in
place. See Nixon, 572 S.W.2d at 701.
Appellant’s brief admits that “no formal detainer was placed on him,” but he
argues the Court of Criminal Appeals held in Ex parte Kuban, 763 S.W.2d 426
(Tex. Crim. App. 1989) and Ex parte Rodriguez, 195 S.W.3d 700 (Tex. Crim. App.
2006) that “‘the existence of a detainer is merely one means of establishing
incarceration on a particular cause[.]’” Kuban and Rodriquez are inapposite. In
Kuban, the defendant was credited for time spent in a California jail, where he was
detained solely on the basis of a Texas fugitive warrant. 763 S.W.2d at 427. The
Court explained that, while Texas had filed no detainer, the defendant’s time
served in California was “for nothing other than being a fugitive from justice in
Texas.” Id. Likewise in Rodriquez, the defendant was entitled to credit for a period
of incarceration in Mexico pending extradition despite the fact that no detainer was
lodged because his detention in Mexico was “solely . . . a result of [a] fugitive
arrest warrant.” 195 S.W.3d at 703-04. While filing a detainer or hold is “merely
one means of establishing incarceration on a particular cause[,]” as Bertrand
argues, if none is filed, then the defendant must show some other evidence that the
incarceration in another jurisdiction is for the same case. See Rodriguez, 195
S.W.3d at 703; Hannington, 832 S.W.2d at 356.
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The only evidence in the record before us in this matter reflects that Hardin
County did not place a hold or a detainer on Bertrand with Jefferson County or the
Department of Corrections. Bertrand offered no evidence that any portion of his
incarceration prior to June 19, 2014, was for the charge of unauthorized use of a
vehicle of which Hardin County convicted him, or that such time was directly
attributable to the Hardin County charge. The additional credit Bertrand seeks
pertains to time he served on other offenses. Bertrand is not entitled to credit for
such time under Article 42.03. See Acosta v. State, No. 08-01-00509-CR, 2003
Tex. App. LEXIS 9175, at *7 (Tex. App.—El Paso Oct. 28, 2003, no pet.) (mem.
op., not designated for publication) (denying credit for time served in federal
prison where state of Texas knew of such imprisonment because Texas did not
obtain constructive custody by placing a hold on him).
To the extent Bertrand argues that his arrest pursuant to the capias operated
as a hold for purposes of Article 42.03, we find no authority to support such
argument. See, e.g., De Leon v. State, No. 08-08-00248-CR, 2010 Tex. App.
LEXIS 8390, at **2-7 (Tex. App.—El Paso Oct. 20, 2010, pet. ref’d) (not
designated for publication) (declining to give credit for time served in one county
from the date another county issued an capias because defendant was incarcerated
for different causes in each county and the record failed to show evidence of a hold
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or detainer); Bowen v. State, No. 2-02-428-CR, 2003 Tex. App. LEXIS 8865, at
**2, 5 (Tex. App.—Fort Worth Oct. 16, 2003, pet. ref’d) (mem. op., not designated
for publication) (holding defendant not entitled to time served in Florida, although
detained pursuant to a Texas capias, because there was no evidence that Texas had
placed a hold or detainer on him while he was confined in Florida).
Bertrand also argues that “no bond was rolled over[.]” However, Bertrand
cites no legal authority explaining how this fact would make it “mandatory” that he
should receive credit in excess of the fifty days he served in Hardin County jail
prior to his sentencing. Furthermore, according to the undisputed testimony from
Burrous, Bertrand’s bond did roll over. Bertrand offered no evidence that any
portion of his incarceration other than the fifty-day period from June 19, 2014, to
August 7, 2014, was for his conviction in Hardin County for unauthorized use of a
vehicle. Additionally, the record before us provides no basis to credit Bertrand
with more than the fifty days jail time credited to him in the judgment. We
overrule Bertrand’s issue. Having overruled Bertrand’s issue on appeal, we affirm
the trial court’s judgment, and we deny the State’s motion to dismiss.
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AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on April 22, 2015
Opinion Delivered May 6, 2015
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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