Bailey, Michael Duane v. State

• Court: Court of Appeals of Texas
• Decided: March 28, 2006
• Docket: 14-05-00372-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 28, 2006

Affirmed and Memorandum Opinion filed March 28, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00372-CR

MICHAEL DUANE BAILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185^th District Court

Harris County, Texas

Trial Court Cause No. 997,529

M E M O R A N D U M   O P I N I O N

Appellant, Michael Duane Bailey, was indicted for the felony offense of possessing cocaine weighing more than one gram, but less than four grams.  A jury convicted him, and he elected to have the trial judge impose his sentence.  The trial judge imposed appellant=s sentence at ten years= confinement, with no fine.  In one issue, appellant contends the trial judge erred by denying him credit for 234 days he served pending trial.  We affirm.

Factual and Procedural Background

The facts of the offense are unimportant for purposes of this appeal.  It is enough to state that appellant illegally possessed cocaine.  The jury found him guilty.  Appellant elected for the trial judge to impose the sentence.  During the punishment phase, he stipulated to prior offenses, and the State proved another.  Following that short presentation of evidence, both sides made brief arguments to the trial judge regarding what punishment to impose.  The trial judge entered a sentence of ten years= confinement, and no fine. 

When preparing the judgment and sentence, the trial judge marked out a notation that would have given appellant 234 days= credit toward his jail sentence.  She wrote beside the stricken number AN/A.@  The clerk=s record also contains a notation A[n]o back jail credit per Judge Brown.@  We cannot glean from this record the trial court=s reasoning.  Moreover, we find no indication in our record that appellant was actually entitled to credit for time served.  The State noted in its brief that, according to a search of the JIMS computer system, appellant is probably entitled to the credit.  However, the State also notes correctly that the fruits of its independent investigation for purposes of preparing an appellate brief are not a part of the record.  As we explain below, because the record is devoid of any testimony or documentation that would support what the State has evidently already discoveredCthat the trial judge likely erred in not granting the mandatory credit for timeCwe must affirm.

Analysis

Article 42.03, sec. 2(a) of the Code of Criminal Procedure provides that A[i]n 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.@  Tex. Code Crim. Proc. Art. 42.03, ' 2(a) (emphasis added).  Absent application of the community-service-based exception, credit for time served is mandatory.  We have nothing before us to indicate that the exception applies.  Thus, if appellant served time pending this case, he is statutorily entitled to credit.  However, we have no indication the exception does not apply; the record is inadequate for us to assign error.

First, we do not know how much time appellant served in jail pending the outcome of this case.  Second, even if we knew how much time he spent in jail, we would have to determine whether it was pending the outcome of this case, or some other case.  Explained differently, if appellant had posted bond for the cocaine offense, and then spent time in jail for an unrelated crime committed later, he would not fall under the statute.  Without an adequate record, we cannot determine what, if any, error exists.  See Ortiz v. State, 144 S.W.3d 225, 229B30 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (en banc) (explaining that while the district and appellate courts have a duty to ensure delivery of a record, the party seeking review still has a duty to develop a record demonstrating error).

In order to receive some sort of relief, appellant would be better advised to bring a writ of habeas corpus.  With that procedural vehicle, he could develop a record, bring evidence, and establish his right to credit for time served.^[1]  Without that evidence and a developed record, there is no relief we can grant.

Conclusion

Having determined that the record is inadequate to determine if there is any error, we affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed March 28, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The State also acknowledges in its brief that this procedure would allow appellant to demonstrate any error and receive relief.  We commend the State for this frankness.