Mandon Ryan Thompson v. State ( 2011 )

NO. 12-10-00339-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MANDON RYAN THOMPSON, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Mandon Ryan Thompson appeals from his conviction for burglary of a building. In one
issue, Appellant contends that the trial court did not credit him for all of the time he had served
prior to being sentenced. We affirm.
BACKGROUND
Appellant pleaded guilty to the offense of burglary of a building in September 2005. The
trial court deferred adjudication of his guilt and placed him on community supervision. In 2007,
the State filed a motion to adjudicate Appellant’s guilt, asserting that he had violated the terms of
his community supervision. The trial court found that he had violated the terms of his community
supervision, found him guilty, and placed him on community supervision with the requirement
that he serve time in a Substance Abuse Felony Punishment Facility as a term of his community
supervision.
In April 2010, the State filed to revoke Appellant’s community supervision. Appellant
admitted that he had violated the terms of his community supervision by consuming alcohol and by
committing the offense of driving while intoxicated. The trial court found Appellant to be in
violation of the terms of his community supervision and sentenced him to confinement for two
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years in the state jail. This appeal followed.
CREDIT FOR TIME SERVED
Generally, a trial court is obligated to give a defendant credit against his sentence for any
time he spent in jail waiting to be tried or sentenced. See TEX. CODE CRIM. PROC. ANN. art. 42.03,
§ 2 (Vernon Supp. 2010). With respect to state jail felony offenses, however, it is within the
discretion of the trial court to grant credit for time spent in jail prior to trial. See TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 15(h)(2) (Vernon Supp. 2010). But a trial court must give credit in a case
where the defendant is indigent, and therefore unable to make bond, and is given a maximum
sentence, or where he was being held for a hearing on a motion to revoke his community
supervision. See Ex parte Bates, 978 S.W.2d 575, 578 (Tex. Crim. App. 1998); Ex parte Harris,
946 S.W.2d 79, 80 (Tex. Crim. App. 1997); see also Ex parte Chamberlain, 586 S.W.2d 547,
547–48 (Tex. Crim. App. 1979).
Appellant presented evidence that appears to indicate that he was arrested in Smith County
for the offense of assault on January 27, 2010. On February 17, 2010, a driving while intoxicated
charge was added. Appellant was in custody continuously from January 27, 2010. Anderson
County officials placed a hold on him for this case on May 17, 2010. At the sentencing hearing,
Appellant requested credit for the time from January 27 to May 17 on the theory that “Anderson
County did know that he was in Smith County, they just chose to wait to file the Motion to
Revoke.”
Although Appellant so testified, it is not clear that Anderson County officials were aware
that Appellant had committed new offenses and was incarcerated in Smith County. Even if they
were, Appellant has provided no authority, nor have we found any, for his theory that he is entitled
to credit for time he served before a hold was placed on him for this case. In fact, the statute
regulating the crediting of time spent in jail specifically states that a person is to be credited for
time spent “in jail for the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2 (a)(1).
There was no court order confining or imprisoning Appellant on this case until May 17,
2010, and so Appellant is not entitled to credit for time before that date. See Bynum v. State, 772
S.W.2d 113, 114 (Tex. Crim. App. 1989) (op. on reh’g) (person confined in different jurisdiction
entitled to credit in original jurisdiction only if original jurisdiction had detainer or hold lodged
against him). Defendants are entitled, generally, to credit for time served in jail after a hold has
been placed on them. For example, in Ex parte Rodriguez, 195 S.W.3d 700, 703–04 (Tex. Crim.
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Ohio App. 2006), the court of criminal appeals held that the defendant was entitled to credit for time
spent in a Mexican jail because of a fugitive arrest warrant issued by a Texas court. By way of
contrasting example, in Fernandez v. State, 775 S.W.2d 787, 789 (Tex. App.–San Antonio 1989,
no writ), the court declined to award credit for time served because there was no proof that the
other jurisdiction held the defendant for the case in which he was being sentenced. An actual hold
or detainer is not required, and in Ex parte Kuban, 763 S.W.2d 426, 427 (Tex. Crim. App. 1989),
the court gave credit for time served in California because the California officials had arrested the
defendant for no reason other than the fact that he was a fugitive from the State of Texas.
There is no evidence that the Smith County jail held Appellant on the basis of the Anderson
County charges until a detainer was lodged. No detainer was lodged against Appellant from
Anderson County until May 2010. Because he was not confined on the basis of this case prior to
May 2010, the trial court properly declined to give Appellant credit for time in jail from January to
May 2010. We overrule Appellant’s sole issue.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered June 22, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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