Garcia, Richard v. The State of Texas--Appeal from 327th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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RICHARD GARCIA, ) No. 08-01-00154-CR

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Appellant, ) Appeal from

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v. ) 243rd District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 55123)

O P I N I O N

Richard Garcia appeals from the sentence imposed following revocation of his community supervision. In his sole issue on appeal, Appellant contends that he is entitled to additional credit for time served. We affirm.

FACTUAL SUMMARY

Appellant waived his right to a jury trial and on May 25, 1989, entered a negotiated plea of guilty to the offense of burglary of a habitation. In accordance with the plea bargain, the trial court assessed punishment at a fine of $350 and imprisonment for a term of ten years but suspended the sentence and placed Appellant on community supervision for ten years. The State filed a motion to revoke on May 9, 1996. Appellant was arrested in California on July 22, 1998. The State of Texas, however, did not serve a detainer on him until August 22, 2000. Garcia testified at the revocation hearing that he believed Texas and California authorities had been aware since August 1, 1998 of his incarceration in California. Following his return to Texas, Appellant entered a negotiated plea of true to the revocation motion. Pursuant to the plea bargain, the trial court reduced Appellant=s original sentence to imprisonment for a term of five years. Initially, the trial court credited Appellant with 95 days served but later entered a judgment nuncpro tunc giving him 306 days credit for time served since August 22, 2000.

CREDIT FOR TIME SERVED

In his sole issue, Appellant argues that he should be given credit for time served from August 1, 1998 through August 22, 2000. He acknowledges that the detainer was not placed on him by Texas until August 22, 2000, but contends that the State had known since August 1, 1998 that he was incarcerated in California. The State responds that Appellant is entitled to credit only for the time served from August 22, 2000, the date on which the detainer request was lodged against him with California authorities, through March 23, 2001, the date of Appellant=s sentencing.

Article 42.03, ' 2(a) of the Texas Code of Criminal Procedure governs the trial court=s obligation to give the defendant credit for time served:

In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court. [Emphasis added].

Tex.Code Crim.Proc.Ann. art. 42.03, ' 2(a)(Vernon Supp. 2002).

Pursuant to Article 42.03, ' 2(a), a defendant is entitled to credit for all time spent in jail Aon said cause.@ See Ex parte Bynum, 772 S.W.2d 113, 114 (Tex.Crim.App. 1989). Entitlement to jail time credit may be based upon either actual or constructive custody. Ex parte Hudson, 655 S.W.2d 206, 208 (Tex.Crim.App. 1983). When a person having a criminal case in one jurisdiction is confined--either physically or constructively--by another jurisdiction, he is confined Aon said cause@ only if a detainer or Ahold@ is lodged against him by the first jurisdiction. Bynum, 772 S.W.2d at 114. The rationale for allowing a time credit under a detainer is that the hold results in a Achange in the basis for (a prisoner=s) confinement.@ Bynum, 772 S.W.2d at 115; see Ex parte Alvarez, 519 S.W.2d 440, 443 (Tex.Crim.App. 1975). In these types of cases, it is not the fact that the individual is currently serving a term in a penal institution which determines whether credit should be given; rather, it is the fact that another jurisdiction has chosen to lodge a hold against the individual. Bynum, 772 S.W.2d at 115; Ex parte Newell, 582 S.W.2d 835, 836 (Tex.Crim.App. 1979).

In support of his argument, Appellant cites Ex parte Hernandez, 758 S.W.2d 594, 596-97 (Tex.Crim.App. 1988) and Ex parte Pizzalota, 610 S.W.2d 486, 488 (Tex.Crim.App. 1980). Both of these cases address whether a defendant should be given credit for time served while under a detainer or a Ahold,@ not where the State simply has knowledge that a defendant it seeks is incarcerated in another jurisdiction. Neither case suggests that constructive custody would exist under these facts. Further, the rationale in Bynum does not support extending constructive custody to these facts since Texas=s alleged knowledge of Appellant=s incarceration in California does not result in a change in the basis for his confinement. Bynum, 772 S.W.2d at 115. Texas did not gain constructive custody of Appellant until August 22, 2000, when it placed the detainer upon him. See Hernandez, 758 S.W.2d at 596-97; Pizzalota, 610 S.W.2d at 488; Newell, 582 S.W.2d at 836. Accordingly, the trial court correctly calculated the time credit to Appellant. We overrule Issue One and affirm the judgment of the trial court.

June 13, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)