EX PARTE MELVIN WEBSTER AKA MELVIN LAMAR WEBSTER, JR. (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-74,429-01 & 74,429-02

EX PARTE MELVIN WEBSTER

AKA MELVIN LAMAR WEBSTER, JR., Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 07F0583-005 & 06F0741-005 IN THE 5TH DISTRICT COURT

FROM BOWIE COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two charges of possession of a controlled substance and sentenced to five years' imprisonment in each. He did not appeal his convictions.

We remanded these writs for answers to Applicant's claims that his pleas were involuntary and counsel was ineffective because his sentences are not being calculated concurrently with a sentence from Arkansas, as provided in the plea agreement.

The trial court appointed Applicant habeas counsel and held a live hearing. At the hearing, Applicant testified that he had been released to parole, was abandoning his claims attacking the conviction and was only interested in pursuing pre-sentence jail time credit for time spent in an Arkansas prison. The trial court recommended granting relief "to the extent that [Applicant] was not awarded credit" for time spent incarcerated before the date of conviction.

This Court has decided that the appropriate remedy for claims relating to pre-sentence jail time credits "is to require Applicant to present the issue to the trial court by way of a nunc pro tunc motion." Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004). "If the trial court denies the motion for judgment nunc pro tunc or fails to respond, relief may be sought by filing an application for writ of mandamus in a court of appeals." Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010).

To the extent that Applicant's writ applications requested pre-sentence jail time credit, they are dismissed under Ex parte Ybarra, 149 S.W.3d at 148-49. In accordance with his testimony at the writ hearing and the trial court's findings, Applicant's remaining claims attacking the conviction are dismissed.

Filed: September 14, 2011

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