JUAN GABRIEL MOLINA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued August 19, 2011
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00503-CR
No. 05-10-00504-CR
 
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JUAN GABRIEL MOLINA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F09-52610-HU, F09-54509-MU
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OPINION
Before Chief Justice Wright and Justices Morris and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Juan Gabriel Molina pleaded guilty before a jury to aggravated robbery with a deadly weapon and unauthorized possession of a firearm by a felon. After finding appellant guilty in each case, the jury assessed his punishment at forty years' imprisonment and a $500 fine for the aggravated robbery and ten years' imprisonment for the offense of unauthorized possession of a firearm by a felon offense. At the conclusion of sentencing, the trial judge stated, “You will get credit for any back time.” The judgment in the aggravated robbery case shows appellant was given back-time credit from March 14, 2009 to March 23, 2009 and from November 4, 2009 to April 1, 2010, the date of his sentencing. The judgment in the firearm case shows appellant was given back- time credit from May 5, 2009 to May 11, 2009 and from November 4, 2009 to April 1, 2010.
        In his first point of error, appellant contends he is entitled to one additional day of back-time credit in each case. In his second point of error, appellant contends that because he was not eligible to receive good conduct time, the inclusion of the mandatory parole instruction as applied to appellant's case was unconstitutional.
        We affirm the trial court's judgment in each case.
BACK-TIME CREDIT
        In his first point of error, appellant argues he is entitled to one additional day of back-time credit in each case. Appellant asserts he was re-arrested on these charges on November 3, 2009, but the judgments award back-time credit beginning on November 4, 2009.
        Appellant states in his brief he was arrested for aggravated robbery on March 14, 2009. Bond was set at $25,000, and he posted bond. While on bond for aggravated robbery, appellant was arrested on May 5, 2009 for the unauthorized possession of a firearm by a felon offense. He again posted bond. On June 17, 2009, at the request of the State, both bonds were declared insufficient and new bonds were set at $100,000. Apparently, appellant again posted bond inasmuch as he was re-arrested on November 3, 2009. Because the trial court's judgments recite a back-time credit from November 4, 2009 to April 1, 2010, appellant asks us to modify the judgments to add one additional day for November 3, 2009. The State responds that the record is inadequate to address appellant's claims for additional credit.
        Article 42.03, section 2 of the Texas Code of Criminal Procedure provides, in pertinent part, as follows:
 
        (a) In all criminal cases the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant's sentence for the time that the defendant has spent:
 
 
 
                (1) in jail for the case, 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 [.]
 
Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1) (West 2006). There is no evidence before us showing the total length of time appellant was confined prior to sentencing. A showing that appellant was arrested on November 3, 2009 is not sufficient to show he was also confined on that date. The record contains no book-in sheet. And appellant posted bond. Thus, the record is inadequate to show the date of appellant's “arrest and confinement” as required by the statute (emphasis added).
        Appellant recognizes that this Court only has authority to modify a judgment when it has all the information necessary to make the judgment speak the truth. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). And, he states in his brief, “However, the necessary information to calculate the correct back-time credit is not available in the record (emphasis added).” Appellant then asserts he is entitled to one day additional back-time credit and asks this court to reform the judgments. Because the record is inadequate to provide this court with the necessary information to know the truth, we decline appellant's request to modify the judgment. We overrule appellant's first point of error.
JURY INSTRUCTION
        In his second point of error, appellant contends that the inclusion of “good time credit” instructions in the jury charge in the aggravated robbery case was a denial of his due process rights because he was not eligible to receive good time credit, the instructions were calculated to mislead the jury, and there is a reasonable probability that the instructions did mislead the jury. The State responds such instructions did not violate appellant's due process rights.
        Appellant pleaded guilty to committing aggravated robbery with a deadly weapon. He signed a judicial confession admitting his guilt. The jury found appellant guilty as alleged in the indictment and proceeded to punishment. The punishment charge included the instruction regarding good time credit, as required by article 37.07, section 4(a) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West 2006). Outside the presence of the jury before the charge was read, appellant affirmatively stated that he had no objection to the court's charge.
        Appellant's complaint on appeal is that the charge required by article 37.07, section 4(a) denied him due process because he is not eligible for good conduct time. The same contention has been rejected by the Texas Court of Criminal Appeals in Luquis v. State, 72 S.W.3d 355, 361 (Tex. Crim. App. 2002). The Luquis court held that because the instruction was required by statute, the trial court did not err in giving the instruction. Id. at 363. The court also said that absent a showing the jury was misled by the parole instruction and assessed a higher sentence, there was no due process violation. See id. at 364. Appellant has made no such showing here. We overrule his second point of error.
        We affirm the trial court judgments.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
100503F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.