Eugene Cody Jones v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00526-CR

Eugene Cody JONES,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-4204

Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Rebecca Simmons, Justice

Delivered and Filed: November 2, 2005

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS IN PART

Eugene Cody Jones appeals the judgment revoking his community supervision, sentencing him to one year s confinement in the Texas Department of Criminal Justice State Jail Division, and fining him $1200. Jones argues the trial court abused its discretion in refusing to grant him credit for time served in county jail while awaiting a hearing on the State s motion to revoke his community supervision. We agree.

As the State recognizes in its brief, a trial court generally has no discretion to deny a defendant sentenced to a state jail facility credit for time the defendant was confined pending a hearing on a motion to revoke community supervision. See Ex parte Bates, 978 S.W.2d 575, 577-78 (Tex. Crim. App. 1998); Jimerson v. State, 957 S.W.2d 875 (Tex. App. Texarkana 1997, no pet.). The State is also correct that a defendant is not entitled to credit if his confinement prior to the revocation hearing was not due to the motion to revoke. See Phillips v. State, 64 S.W.3d 458, 462 (Tex. App. Houston [1st Dist.] 2001, no pet.) (holding the trial court did not abuse of discretion in denying credit because the defendant was not arrested pursuant to revocation warrant but was rather arrested and held without bond on separate charges).

The record reflects the State filed its first motion to revoke Jones s community supervision in November 2003. On November 26, 2003, a warrant for Jones arrest was issued pursuant to the trial court s order that Jones be arrested and held to answer to the alleged violations. The Sheriff s return states the warrant was executed April 28, 2004, by arresting Jones and placing him in the Bexar County jail. Nothing in the record suggests that Jones was released from custody at any time before the June 22, 2004 revocation hearing or that Jones was being held in custody on other charges during that period. Accordingly, we hold the trial court abused its discretion in denying Jones credit for the time he spent incarcerated pursuant to the revocation warrant.

We therefore affirm the trial court s judgment revoking Jones s community supervision and imposing sentence. However, we remand the case to the trial court with instructions to reform the judgment to reflect any credit for time served in accordance with this court s opinion. See Joseph v. State, 3 S.W.3d 627, 643-44 (Tex. App. Houston [14th Dist.] 1999, no pet.).

Sarah B. Duncan, Justice

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