Louis Benjamin Frantzen v. The State of Texas--Appeal from 216th Judicial District Court of Gillespie County

MEMORANDUM OPINION

Nos. 04-06-00195-CR; 04-06-00196-CR & 04-06-00197-CR

Louis Benjamin FRANTZEN,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Gillespie County, Texas

Trial Court Nos. 4428; 4157 & 4119

Honorable Stephen B. Ables, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: February 14, 2007

AFFIRMED

The sole issue presented in these appeals is whether the trial court erred in calculating the amount of jail credit appellant was entitled to receive in each of the underlying causes. Because the record is not sufficiently clear to overcome the presumption of regularity of judgments, we affirm the trial court's judgments.

Louis Benjamin Frantzen was arrested on two warrants issued after a motion to revoke probation was filed in cause numbers 4157 and 4119. The order directing that the warrants be issued stated that Frantzen was to be remanded without bond. The sheriff's return in each cause states that Frantzen was arrested on March 8, 2005, and the magistrate's warning in each cause states "YOUR BOND IS SET AT: Denied by issuing court."

In cause number 4428, a capias was issued for Frantzen's arrest in connection with a new offense. The sheriff's return states that Frantzen was arrested on August 16, 2005, and the magistrate's warning states, "YOUR BOND IS SET AT: $5000.00," with the word "surety" circled on the form.

In pronouncing sentence in cause number 4428, the trial judge stated, "You will get credit for the time that you have heretofore served." The judgment in cause number 4428 does not give Frantzen any jail time credit. The judgments in cause numbers 4157 and 4119 give Frantzen two days jail credit for 6/10/02 and 3/08/05.

Frantzen was sentenced in the underlying causes on February 16, 2006. On April 10, 2006, Frantzen filed a motion for judgment and sentence nunc pro tunc in each of the underlying causes, asserting that the judgment did not reflect the proper jail credit. The motions state that Frantzen was never released on bond after his arrest and request jail credit from the date of his arrest to the date of sentencing. The record does not reflect that the trial court ruled on the motions.

A criminal defendant is entitled to credit on his sentence for time served in jail from the time of his arrest until the trial court sentences him. Tex. Code Crim. Proc. Ann. art. 42.03, 2(a) (Vernon Supp. 2006). An appellant is not required to object at trial to raise the issue of jail time credit on appeal. McGregor v. State, 145 S.W.3d 820, 822 n.1 (Tex. App.--Dallas 2004, no pet.);Steinocher v. State, 127 S.W.3d 160, 163 n.2 (Tex. App.--Houston [1st Dist.] 2003, pet. dism'd);Joseph v. State, 3 S.W.3d 627, 643 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Although appellate courts may sometimes reform a judgment to give an appellant proper jail time credit, the preferred practice is for the trial courts to enter a nunc pro tunc order to reflect proper jail time. Ex parte Evans, 964 S.W.2d 643, 645 n.2 (Tex. Crim. App. 1998). If the trial court fails to respond to a request for a nunc pro tunc order, the defendant is entitled to seek mandamus relief from the court of appeals. Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App. 2004).

The presumption of regularity created by recitals in the judgment can be overcome only when the record otherwise affirmatively reflects that error occurred. Breazeale v. State, 683 S.W.2d 446, 449 (Tex. Crim. App. 1984). Recitations in the records of the trial court, such as a formal judgment, are binding in the absence of direct proof of their falsity. Id.

In this case, the judgments recite the amount of jail credit Frantzen was entitled to receive. Although the clerk's records contain documents showing that Frantzen was initially remanded in the revocation proceedings without bond, there is no direct evidence in the record that Frantzen remained in jail without bond until sentencing. When the trial court pronounced sentence, the following exchange occurred:

THE COURT: At this time you are remanded to the custody of the Sheriff in order for this sentence to be carried out.

THE DEFENDANT: Your Honor, could I request - I mean, I got puppies at home. I got, you know - I got to get things straight. Could I have a week before I turn myself in? I mean -

MS. CAVAZOS: Your Honor, I think Mr. Frantzen knew that he was coming for sentencing today and he might be going to prison today.

THE DEFENDANT: I thought probation was what - I thought y'all were just going to extend my probation.

THE COURT: I will let the Sheriff make the decision whether or not he wants to -

THE DEFENDANT: Well, I haven't gone anywhere since.

THE COURT: - whether or not he wants you to report immediately.

THE DEFENDANT: I call and let him know where I'm at.

From this exchange, it does appear that Frantzen was not in jail from the date of his arrest until the date of sentencing. The record reflects that Frantzen is a paraplegic and required on-going medical treatment which may explain the reason he was released on bond despite the trial court's initial orders. Although Frantzen may be entitled to additional jail credit under article 42.03, section 2(a), the record in this case is unclear. Steinocher, 127 S.W.3d at 163. Therefore, we must affirm the trial court's judgments; however, we note that Frantzen's motions for nunc pro tunc judgment remain pending before the trial court. If the trial court fails to respond to the motions, Frantzen may seek relief by writ of mandamus. (1) Ex parte Ybarra, 149 S.W.3d at 149.

The trial court's judgments are affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. Because the trial court will receive a copy of this court's opinion and judgment, the trial court will be on notice that the motions are pending and require a ruling.