EX PARTE LARRY DALE PATTY (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-75,903-01 AND WR-75,903-02

EX PARTE LARRY DALE PATTY, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 33,185-B AND 32,633-B

IN THE 124TH JUDICIAL DISTRICT COURT

FROM GREGG 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to two charges of assault with family violence, and was sentenced to consecutive sentences of four years' and six years' imprisonment.

In these applications, Applicant alleges that he has been denied due process and equal protection because of an error in TDCJ's calculation of his sentences. When Applicant was received at TDCJ under the six-year sentence, the judgment in that case indicated that the sentence was to run consecutively with another sentence. However, TDCJ did not receive a copy of the judgment in the other case, and did not pursue the matter. Therefore, Applicant's six-year sentence was recorded by TDCJ as his only sentence. During an audit of Applicant's time credits, it was discovered that Applicant had another four-year sentence upon which the six-year sentence was stacked. Applicant had already discharged the four-year sentence in flat time when the error was discovered. Applicant's records were corrected to reflect new start and discharge dates for Applicant's consecutive sentences, and a new projected release date for the six-year sentence.

On, May 18, 2011, the trial court made findings of fact and conclusions of law. The trial court recommended that relief be granted in that the good time that had accrued during the period when the records reflected that Applicant was serving a single six-year sentence should be credited against Applicant's four-year sentence, which should be retroactively determined to have ceased to operate on a date when Applicant would have been eligible for mandatory supervision on a four-year sentence with the good conduct history he established during the first four years he served. The trial court recommended that the Board of Pardons and Paroles be ordered to recalculate the date upon which Applicant would have been eligible on mandatory supervision on the four-year sentence, and use that date as the date the sentence ceased to operate and the six-year sentence began.

An inmate serving consecutive sentences is not eligible for mandatory supervision on any but the last of his consecutive sentences. Ex parte Ruthart, 980 S.W.2d 469, 473 (Tex. Crim. App. 1998). Therefore, if Applicant's records had correctly reflected his consecutive four-year and six-year sentences, he would not have been eligible for mandatory supervision on the four-year sentence. The four-year sentence would have ceased to operate only when Applicant was approved for parole or had discharged the four-year sentence in flat time.

According to an affidavit provided by TDCJ, Applicant's four-year sentence was discharged in flat time on January 29, 2009. His six-year sentence has been re-calculated to have a sentence begin date of January 29, 2009, with 143 days of pre-sentencing jail time credits, and a maximum discharge date of September 8, 2014. Applicant's projected release date to mandatory supervision was also adjusted to reflect the correction in his sentence calculations.

This Court has undertaken an independent review of all the evidence in the record. Based on the trial court's findings of fact and conclusions of law as well as this Court's independent review of the entire record, we deny relief in Applicant's first application, and dismiss his second application because he has discharged his sentence in that case.

Filed: September 14, 2011

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