in Re: Brian K. Melton

• Court: Court of Appeals of Texas
• Decided: August 7, 2015
• Docket: 06-15-00140-CR
• Status: Published

Opinion

44 § . Cau€e numbe((€) #20,570 end 20>572 RFCE;VED|N 06 »'A.S_" 00 /9/@ O

§ , , 1 \ . Br§c-\n K. N\el-&on Th"' hm?§§:§?e";eas L'\M\e 354 ' J`udicia( _d\$'\‘nc.+ C.uur+,' 4**‘>‘5 27 33 m n 7 2015 § »\-\un+ coun+v;n_ggqg§§. "\'Ke\a&o\' The Court of Appeals

' Tez<;:ré»/ ana 119an \_ ` Sixth District

" fileer ilu§rey, C\erK §

amos wag¢ cc +§§e 354“‘ *AU(; 0 7 2015 B\S*'<\c\' QL)ur-L ` _ K w ` ` c _`&Y § Texarkana, Texas m ‘5 ° ‘L" "`°“° Debra K. Autr:ey”_©§|e§nk

`Kes Panden+

'.P€-H-{»ion 'G.\r AQF\¢`CA-l;cdi:)n puc Wr'.+ o'c Mar\damu§

(“on ma4§ons cor .TudSmen'(' l\lunc ’Pro Tunc_\ (Caus@. mmb§>.r(s’) #zo, sm_ ana " za,

_ Tc \-¥onurnblc Tud§e eli Sm`d er,l\'~}'- Cumes nom fbf`u-\n Ki l"\e\-\on #lr0‘52733 » "KE{R‘(OF . ?fc. »5€»`\0 '“'\€ above 5{“lled nulde Qé\uSCS .'» dod 915 %e?e-\~`c'\lon per Wf§{’ be Mand»'dmu$“ `u_l'\'Hw -\'{'\15 , C'ou\~h:(` \`-\(’Pef\l$'» ‘Pur$uan'{' ‘\u TeX.K.O(: P\?f. ’\>rc>l:_. fuld 23.\ (C\€<:\Ci\( afford due '\'0 -\»\'\e pollou.‘»`(n$ .. ..

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§ 'KElA-lor was C\-\adec\ m§-H\ (?_\`\mo Se\°eca'\e o¢€cnses al wauan n-C A \-\nb`\~¥.\\-\`\r_\-.-\ bv `md§c§men'{' . crow N\e 354£` Dis¥dc'(- Cn.u<-\- § of Hun'\' Coun+¥> T€XF:S ~ ) `m-u\e %\:»o~}e_ S'Hled Causc= n`umbec($) . ?ursuAM le

o ?lea asreen~.e_rrh Re_le\¥¢>¢ <-\Qm_=d ha ’P\end Su`§lh' +o bo+h ¢Qe§ns"es \(`or (2\ we SQPAMe ("Zo\ irm-eniY-Yenr ` .SerAences § ui§+h 258 daY 4ime_ Ccec\`\-\r an eaja Sen\e.r\ce . FLr-Lhermorc \'204+. 5en4ences were 40 run

_ (C.Ci') Concurr¢n'¥ u.»§H»» each o+§ner ('Exh`§bi{'-A\ 00 jul`( 05,*‘" 2004 . Tudse R. B€ééom Rcce?'\cd H\ese

"§>\ca mre¢mmts . and mem femnwnc¢a (z\ m~§ee¢

+ime 44'~€ Or"¢Bknc-\\ ’\’\er~\ wrecmen'ks m§rfo€cd -qu E`>en{ences T’ronaunced».

if No Dirc& G\P(’en( was '\'aken »e'

when ’tleln&or was rcce`§ucd +éT.o.c.`.r.~I.l>. .¢\ Sen-\enc.e, Qom?u+a¥\or\ was done \:Y Tl>cT-ID

. Kecnrds D`N`\s`\on@ and -“1€1 onir Gl(ou>ec\ ’?ac-¥§a\ CreA`r(' ordeced ¥\m€ Q\'e;\l'\' . As ~H\e gun 258 day +ime , Q\*€A`A- would ?re` da+e \oc>+\». amenae ldc\&es. F\e\¢=r\~or mm~\e ¥o his doch A?€o§n\'ed M\orne`( (P'\\'. le@n¢l , Ho\=son} no re$c>onse was S§ven . 'F\e\e+c.' Q\\so L`(\eA (-\n “CL- H'l T§me Ke-selu'{ion D`¢s?u+t Form HS

. required.under -l»|r\e Texas G>¢wccnmenj< (‘_oc.\e § 501.003( . luHh -H\a+ denied (Exh}bi+~€). Ke(Mor H'\en . CileA QPPt`¢ce(`\on Q>r mcl+o(? \'-labes\s roms (l('-O`I) in exh Qaus~e numbed's\ due \Lo H\e fbi\ow§ns reasons...

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,i ' |\_Fai\ure~\o abide b\l ?\ea_‘. (-`or %4& `mnbil\"\'¥§-§?r<>£orn`-. g/-\l_l_". elemen+$ oil ~Hne ’P(E¢\

QSreeme.n'B. _ _ 'ZLI\|€BR[ ‘.`\en'\er\ccs ‘. 95 -H~.e Se¢~Aences was un- F\u¢|'ho\"c?.ed» b\l (nu.)(r_~(u; la ¥ime Cred§'l'

Qumrc.\eal ..) _ . 3L X.nvo(un'ler‘l ’P\ea.`§ beC_Aia'Se qA`LL-I E(erncrr\:$ ali H~.e Pleas mere 'no* baird fulfilled ‘n_ Ine£(‘-ec(`we stl§ance of (.‘ouns€\ .`. £o'r recommending ’Pleas H~m-@ Coulc\n}+be ?ro£ormed

(wa ¢H.‘&Sl-oz .`. WL 4+.43!-03)

, _ Thz QouA a»C (`_c`\m§nal~ QPFeA(:s §‘SSued A remand Orde( (Exh`\b`r\'- 53 ua`§H~. order -(`or

, '§vcc`§-("§c~. \Z`mA`§n_`£ Lnu> r@nrd`m$ -Hwese `\ssue$ m`§seé.. On Tanuecv o‘a>`”“` . 2003 'H\e_ 46¢-\( Cour+ 653ch i'('s' Finc\}n$$ (_Ex_h`§b}*~£) and ordero'l”unc.`in , wm cwg¢*‘§ (E§ronm.r§¢ea sen+¢r\c_e_s me (Q ,q.,¢n+~,_§(ears _ u>`§-\+\ 253 days \-imc Cced`¢~" l +o (l‘i)n`me-}een~`{enrs and (Zoo\ +mc~hundred da`fs w`d+\ 253 days

_ dev/5 ¥§mc (‘_ce¢i`r\ . ¥-Lr+her (`_la‘§m`m_§ \+wr\- Kela-\nr u_ms ?resen~\~ an Tanuar\l 05§“" 2003 L.J`§-H~§ Cou<+ . H?Fc`§d~}ed Cnun Se\ (N\<.Ra~lmnné l~bf-‘s.orn "m open C:our'\' [Exh'\bH-F~ 'P_‘R.Z\ land <-\Sreecl »\i> -H~.`§s.

. L£'(' (Exhil::r>‘>{"~c>\ ?fove H'\`\s ClR;r'n pn\$c. '

. _ T\'e (‘nur-¢ c-C Cr`\m'ma( chals denied u_~.§+hnu+ .r»\ L._)r`§++en order pr~. lllo'7 QPPl§aa-(§nns .` ecae?i}r£ -Une. -\-r`m( C¢>`ud-s Con-‘»er\-l§on -Hm¥ H\e Tudsmen{ l\lunc. T»‘m Tunr_ }s=sued an T¢Anuar‘/ b$.+i _ 2003 rcsotveal all }s€uc.s raised . `Thou_‘§h no address was given +o -H\e ille$a(`\JcY op H'\e~(>c`\_§§¢w(

. zen+ence_s, o('(‘.\ca`§m cc 'meC§`e¢-_-(§v¢ ass€_<.~}nnce 09 Ceunse(:c(es駥e U\e remand ordec~!)~

_ gela¥oc £i(ed moJc`¢on 40 en¥ec l\{unc ‘?re. Tuna_ ,”J`ud$me.n{; c\ue lo ¥he cx`¢s+nnce oP An _ ((’_lev`§ca( award under Tex.R.Apr. ’)’mc,. Kule_ 23§1 bn Tune le»"" 2040 . in bok-k Cause"*'$ (Exh§b§+ -H\

_ Th¢ tonj¢¢ml»§on was -\'\-\a~¥ H\e_ ir`\n`.€om¥ C

. Tud.$mcw\' Nunc ?ro'ru§-\c on tranqu a"s»“*° 2003 "CHANGINQ" Ke\a|¢r's or`§_?§na\lv ?ronounc_ed (20)

. Yea( Sen-lenc.es wi+h 258 day ~l»imc C,redi¥-+o (19) mindan ~`/éar and (200\%51.)¢> Hundrec\ davs lu`\+\\

, 253 da`(§ ‘\'ime Cfed`c{'.......` 54§(( amar¢$§n.? ~\'\-\e SF\.me_ 251 dm me Qredljc` -\»‘{\a-\- made H\e QC`LS'ma\\Y ._K§c_m¢>unc_ecl Sen-\enc.es `mvotun¥er¥ and un-Qb{`As\\°\§_.' 11'1€4¢§9\ Codr4 Qccacdins 4a H~e D`¢s-\~r`§cl derk., had c\en`\ec\ -\'\ne_se_ hhmc ’?n>'¥unc reques-\»S/ v/I,,'cl\ is s~¢i// (//|-£/€M - 1

_ F\eln-\of -\'hen filed Qn mch a£ Han.:lamus u_>`§¥\~. Hn`§$ Oour-{ an Nnvcm hac |5,4$ 2015 . (uFFeM¢\J¢e. Case mmbec($): oé-lo_ao~zl?_-CL aco~lo-ooe)$~-ca) w‘.», .\»ne Q\n‘.f“ H\,.L we Mun_¢_! . ‘Pc¢> Tunc. mo¥`\nn§‘ §§ leA on ”'j°une_ |&=.`H` 2016 1 u_{\H-\ \+\e -l'r`\a( Cour-l~ .Be'm§ “c{cn`\ec§ '. Dnl)' 40 learn . ~'\&\A\- uaw (*\Q¢L Dn\d been.`"?re§zn¥e;*"-\°i-ke Tud$'e and c~e&urne,d uman eA u_\`§+\-.“Ioo ru|§n:¢ ma¢le" M~l od§ina( Wrijc ac Mnnclamus was den`§eA because :r_ diAcH erove Unq-¥ \'\\e lr`m\ Cou§r'\ defied

. 5?»`\¢3 l\lunr. ’ProTunc. molinns,ds C|AiMeJ .

3 - eff/0

. Kel§=§§or;§ §§nce reques§ed 9mm 14§¢ D`§s&§»`§c&(’_\er\< Cor`§e_s u¢§+\e i\l§mc ?ro §unc'.;g§`\ed " - on june Il».§"'L 20l0 alcan-§Ped Den`§ed an{\l §c-e§f$+ be §n{'ormed -\4\¢\~¥ ~\'\\e‘( Couldn‘\ be \§>c.F§-§ec\ _ Then mas-§ rene§\-l-\`I§ lher would have_ 4a be 80+4€:§ ¥ram AusTIN (?} Assum§n.$ H'§A~\-

_ Au¢_~§\'§n was §§»§ re-C(`er§:nc.e ‘}o¥\§e 549-\¢ La§.§> L`§brm\/ `§n I\us-§§n§'- \eke$.. A Cc=§\\ was made +§> ' _ -c§nd .au+ il 'Hne "l§e¢w§ed~" l\lunc'. ?roTunC ordecs Could be Db+a§ned 'H'§e§'e.

775/ag /5 M> //f/”é 739 Wrc’ //g)w dD/r /{, %d/_I Ar,r/§é/ §

. P§§.AS-‘.§n R§'\S§.ue.rs`.

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1'_-(3 -Por c\n¥ reason n _§udsmer§-\' or Sen~\cnc-.e. §§ no-\r C§>rrec-l-\~l ew§e.<~ed §'n-§o record Hwe

. +rmlcour~§m¢;§>' Ce.rrec.~(- n C\er`§c_A( error ur§der Tex. R A§>P. ’§’ra§:. l,R§§l§: 23. l.' Or§P _|F§§§ '§~§n-§e C.red§-\-s are mir ’ProPerlv Cred`§-\ed§ \»\§§a-\ arc owed under Tex Code o(»` (`_r§m. ’Pmc A§J§. '~IZ. 03 ‘ESQC§~§`on _ Z(A\ A ¥r§§§§ Q§>§§§-¥ may en§er-§+\e €ra.§ver number o¥’ da~ls under T§:x..K A§=r ’§>mc. ’K§§§§: 2'?>§ 2 /-\ Nunc

_ ’Pro~r§§na _)§.§d$mer\+ mm b§-_ used §§> Qn§§§»§>_r_+ en C\e.c`§c_§\§ error, bd nqu §\.»§ _§ud`§cc§§ erred w`§lson \/

l . (.‘J{`H*E; (D'I’| v5§|.».\. Zd. 5(3 {TEX.C(§m. P§\'-’F. lci%“'), When -H\z¢'¢ LS Qn \/Hrm'h_or\ bel-wefm .H.\e Om( ._’§’mn§>u ncemen+ ¢>§5 an Sen§znce and H§§>_ §..>r`§+§en vers`§or\ §>{la Se§dence§‘ -H§e amf fi>ronw§-§ced'§e§~r§ence _e§>n§m§>) CD£(‘§=_§ §/. 5+§§4€, 919 5§§.§.2¢§. Bze(vex.cr;m. nr)§>. §QGE§ done§ §'\L)~l~¥§> u.>hQ-§- ~\“l'\e_ `\f§n\ Cour'(' believe$ 5hou|d cr r.‘n'LS}v§» 'H§>§v; b€en done ,§ and no 4 ` _ §ud`§czi§l reason`§n_$‘ C~Z\n be used . Ex~?ar-§»€, ?€n§=\ ,7| S’.m.‘Zd 336 (Tex.CC"§m.A??, Zooo) `_ `§'here-§`é>re .<§ C\e_r`§<;¢\( error Cnn be C§>rrcc§ed »b§,§+ n'o+ a _"§ud§c.a\ errors 'K`§(e¥ \/. C'c>ckre\ g `33‘? F:'Sd'. _ _";3_€_>8(5&(1§§’. 2003).An‘l nunc '§>r¢Tunc. judSmen+ mus+'rr§`§rro'r wha~\- 9¢_4§.§§§\§§ occured 3 §_Q_I!Ln_.s__\_/__ ', ‘i'\w\e, 240 5.§».>§3¢11»°?‘25 (TeX.C'.r§m. QPP§ ZQO`D. `H'§ere mus+ be ~i’§'§:§a§{2 o(`- who-§ was (-\<:J§§,\Al\)’ (~e§'§de(ed _ £-`§§~§d "Prc>noun€€d.'§ ‘Sm`§+h V. S'ha{c/ §S S§W. gd. 229 (TeX.A§’F. dm§as 2000.). Whh¥ -§‘he.~l-¢`§F§( _Cu,§r+ orc§§IY ”§I*onwnc.ed§ on Tu§v Q'S§i"-L 200£ § was f-\cce_§>§a§~§r_'e o£-H§e ’§’§e§=§ ereemen'¥ on §:§§:§+h

, (‘_PuSe \'\umbe§'(§) o~¢ (20)~§1\.§_.¢>_§»~§4¥- Y€Ac$ w`§~H~§ 253 d§§YS \-§me Cred§'{ (E)d-§§b§~§~ln ~H\e ¥r§al(;ouc~§- Con¢§rm.$ , -§»H§s §n §'iS o§.§.)§-§ Q§nd"§n$§$ §ssuec\ on “_|'§=§n§.§arY 08§- 2003.§(\’:`1<§1§\§§+ E),, also on T§qnuarr o‘$}`*` 2003 -§ §n . remnse;~§'§> §§§P_ (:....ur§ erc Cr`§§m.‘v§r§\ Q§>Fe§\\s order § LL£ ~l»r§§\§ C§>ur-§~ L§':un§>§‘o§>e§”l‘/ en§ercd judgmen'§

. ¥\\IMC "?\'G \\m€'- 413 CHAMC`>E ‘RelH'-§oc_<§ or§J§naUY ’R'or'§a§_.§nacd (ZO) hardy Yenr‘€>erv\ences u_\§-H\ 258 _ §da~{s -§»`§m€. CCeA`§+ 415 (l‘f) n`§nelcen- ‘lenrs and (Zoc) '§u.xo- hundred dF\Y u_>`§+§w 253 daYS -\»§mr_ QC€d`§~\' ,;(E~§ur-§ had r\o. Q§.§+§\or`§b‘ under Te)<.'K. Ar§’. R'oc ’K§.§\e 23 l o§- 23.- 2 ar P§n~l oH\e§' .'ru§e or S'\§=§-\§.§e_ -\1> Ch§=§n$€ Q§ decrc¥a( ’?or-¥`§or\ 09 A _\ud_?mem'l' m ar ou+$§de_ 0£ a defend en‘\'$

. ’t’res-.P_n§‘_e. `Th¢ nunc ’§’r§> Tunc. jud$men+ en§ered on J'r-§nu§§=§rY o$§ ~2003 made no (`_\§=§§m -Hw§=§~§ An _]G§er`§ce§§ error e§<§s~§e_d m H§¢ or"§j§§-§at ‘Ser\~§eoces The wang ’?mT§,§nc-,jud$men'§ o€ 'Sanu§=§r? 08§“‘2003 _;§:§n§§r C'rea§ed C\er`§ca§ ecco<_s. Fur+§§'ec more;l§§§ess§me 253 days l§me_ Qre;\`§~§ -§+§¢§4 ma<§§: -§4\¢ or`§s§n§>§( .°_`)er§-§er\c_e-s un_ A§.§J¢h§§r`§?_ed bY law §§_\<-§s again omarde¢§ 14 §s a dear ’\’o§n-§» DC law %ajr=g_&§£c_°rg_ |+unc. C§:§c§n§_~.~§ be used 3m ('.§§AMGE. n dec rc{»nl "r’or-l»`§on of c-\ .)uclS§me§n{.. .

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_ be\ o § Yor§ 04 5 504 \q'lD .) Ex-'Far~\~c 'Bur'\'or\/(o__23 5¢=-§. 2d ‘H%[|€X C_r_§m. ggg_¢_js_§) ; MSN§‘;L z §|Bg§<§§,;g , 392 Fz§§ ‘Z3o lz*c§r §<§30§53 §-?§§r§e 6§>§¢§§zzn¢ 903

_§.§£.gc§. 331 (B,<. ape., §§M_§>,§ /99$) .“§§e 253¢§§§§5 §L§'m§»_erec§;§‘ ,§§ b§>+§§ §§§e §>r§s§§§§»§ 6@§§§@§€5, _r§§~§d §+§e '§mPrQFe.r§~/ en§ered §§lunc. ’Pr§> Tur§c “_§'ud$men+ §>4` immuan 03\*~52003, renders `U\~e.

` _%en§enae.s un_ au+b\or`§?,ed bv ln§§_>. As' H»e §§§.§_>arded lime Qred`§§’ ’?rez.§A§es -§Le o£eense d§>(-§e. ` I§hp§s lens been held L§§a¥ each e§em}n§ o£ q P|ea Q9reemerr§- mug-§ be uP- he§d or e`§§)ner ?er§-¥ . mm w`§an§wa §§~e'§§’ Fl€§\> 93§”€€¢“¢“\".9_4 &n_V~L§`_rn§ b§)§§‘§c§~§ ?\e§§=§§or re‘l§§QSJ

. llio`? 'APPl§cA-§§o§n (Exh§b§+~`b). `Ihe ‘ZSSdavs §§m€ Cred`§-§ u_§r§ nn €(emen~§- o£ §'§M>. ’§’l€§=§ QSreémen+ _§_’E§§§§.'b§+ §d§§§§§§(e;§§§§§§,§§ §-:>. 1+ was ordered §§> be Q¢e&§¢§§ §-§§ +§§§»_ or§_~§z§§§§§ ml r>r§§§§§§§§meme§§+, _§»"c§i|ure ~lo Cred§'/' H§e §Q¢// 252 davis '§»§me_ Cred§‘§' renders §J§e.'§’lea `§nvo§ur\'§'§-'§r¥ ...... l-\ert TDCTI_D Cou|d . NaT H§>§~§§§r \ur§e .(Lll 238 clan HmeCred§`~§/' §§§¢§-§- was §»§§e §erm `§n-H»§e or`§_<)§nr§\ B-e§w§ences "§?unuur§cecl _§:§n J'u§v oS,- 20¢>§ lone an H-§e §mPraPerlY §mPcsec| Nunc ’Prc.'l€§nc Tud.P§-nen+ en-§€Ced on _`Z§`§Anue§r~/ oi»+l` 2§>¢>3, due -§o§~he -Cr=§d- -H-§§§=A- ¥hz -Q§ll Z‘SKC§AY_<. §§me Cred§§ wou§d ’§>re-df§§-c bc§-§\ _§.§§-"§?ense dn§es. €)ee" MMMSQ> ('T;X.__Qr`§m...f§r»'?. \q@.The Proh`§b`§-§§\iene$$ .~§e ecoer §§m§>_ C'red§'§ §-§-\a-L would ’Pre-c§n§e_ -§~he oMense '§5 a C§ear ’§’oir§'\' ac law § . . `f§we F§E§\S . mere chr§§~§ec `§n\§c>l§.§rr§ar¥ due §u ’Re§n-Lors` `§ne(l’er_§`§ue ass§s§nnce of Co§.m=>'el liar h`§s erroraus adv§`ce _-§»\'§ae§ §'§-§e Mdn‘l$ -§‘§m€ Cunse( lu§(( ?res§§me_d ~§ohc§ve Knoodedse op leSQ§§ ?r`§nc§f>(® which is

. ne§+§§e_r nove( §>r un- Sa§§§led” I¥ §S (\SQ`§n a C;§ea§' Po§n~§ §_§§`§ la§§>, ".‘thc§§ §-ime Cred§lr Qe§nr§o\' _ Pre- da-§e -§§~§e Mense do.-§e

. 14 `§s required -§»§-§A~§- no{§ce §)(` §n-§emL§o/\ be _9`§ver§ Berre a jud.Qme§-§'§' `§5 enlrerec£ _ N§§nc ’Pro `l'§.§§'§cJ end §o H£Pc>rd §+§e ?erson C‘§>rw`§c-§ed nn oPPor§un`§jr`/ 40 be ’Pre§r`§ns, _ end §-o‘o§>_ reerzsen§ed§ br counsel `§n order §§> word \\`§m due "§’r§:ces_s al' lmra § 5533£ ¥, S§R§e 4 ..§3‘1' 5.§..§.2¢§. 3'§7(7€><.(;'§§11.£§’§’. l‘??&_>>. Here §§- §5 ’K§:la§ocs -§l§rm, |:§e\§e»(l §»hnjr ~§»§§e +r§h\ C‘our-§-

. §n#\en¥\w¢§\\`/ §?G\`\\eo\ j§u S‘we no4§ca ollilrs `§r§§e§~§§§ons §§> er\§er §\§§nc ’§’re§~§.m§; _§udsmen'§~ §.§_§§+h S‘Fec§§`§`c

, §~n-§en¥ J§o harm fe§<-\-\or b1 den'(§n$ H§m due ’§>roc_e§>` a-C \a§,.§ .(Ex§\§b§`§~F'P$~Z) "D§w§§;s§ -§§w-§ §-r§t-§§ . c§w§r¥ Q\enr\~/ s-\A-\es -§'§§a~§ defend§\§r§’ (’Ke§§=§-\or\ §,§_§ns ’§’reserr§ `§n cour~§- §§_)`§4+§ carro'§r§~§ed C§>unsel Mr.

_ K§>§~/mend |-§§>§§’Sc§r~§ §.~.§~§ j`§>§n§.mr¥ o%§*!` 2003 §'-\nd ’?§ed S§§§|~§v k Burs§§=§r¥ of ah §-§§=§\:§`§Jrrr\`§on 95 ”§>§=§r-§~ <.r€

_ §»§-§e ’§’§e§v§ C§§r§>.er§'§er\{' reached u_§§+§§ -\-I§e s-l§~§§e. _ Gnd ns Par§' §>¢ H\é P§za weemer§¥ u_)o§.§§d rece§§)e

_ (|Q) n§ne-§een~\ler§r'$ Qr\d (2§:§:>\ -§§.§»o~§'§undred da`§$,‘l§$§§~\\ 258 days ~§§m§>_ Orcd§§' _ Le§ (EX|'\`§b§~§--G)§ho§.o _ JA§§>A re\c§§or was No'|' ;n§+§e 3’§‘54‘f D`§s§'ric§- Cou§-§ m januan oS§"“"`Z§:§§:§Sd ’Bu§» uses on H)e Tohn B§ _§`;§>nn<:\\\v un`§~§ oil T§sc".§‘ § §`r§ Karne_<. C§>un§¥,Tex§>§s. 1-§'5 Sho¢.§(d nlso be no-§e§:l ~\'§w§=§~\- re|e§or Q§(ed _ i"\r. K. (Ka¥m§:.§‘§d\ §~§o?€c>n 95 §ne@ec`_~§`§\§§: and \+§e.re werer\o `§nd`§CQ§§c>§\ ¥§~§a~r \'§`\S C§§-‘§§m u.‘§’§$ heard

_ on r§S mer§`§'$. R§>_§c>.jn>r e\‘:><> §'\Rs head `§n£orm

5-0)£"/0

. `Yhe mo-h`ons 40 en¥cr `_Tudsmen{~ f\lunc ?roTunc. ('Exhibi\L-H) -ciled by Ke\Mor (equired

. Res?or~den‘\' . ‘5}443¢'\3 judge o£-Hwe 3544"" D`\S'R"ac'\' Cou<‘l -l-¢> Cc>rrec'\' -H'\e']’u*d$men'\* nunc ?fc> Tunc_ orders 09

. january 03.'”` 2003 [E) re_£\ec+ u_>h€+¥ adua\\Y DCCuCCd on J"uI`/ 0‘:‘>'% 2004 . which iS whé+

, 4+\£ crisian Pleq QS r€€men'\' (Exhib'¢‘(’~ A) and H\e oris§nn( ’Pranour\ced Ser\-\ences (E)d\ih}+ ~ B) Call€d£fl

. T?\e. SErTlences (Z\ 40.¢. ('20) ‘{€ar' S€n-(ences uain 253 dh\ls ¥me Cred`c+ » ?\es?or'\den‘t had F\ min\'$~('er`ml du+)'

. 4a Gran‘\ -H\ese Nunr_ ?r¢.\Tunc. orders §\nd rnch like Corred¢ions‘ reques+ed l W\`rr(ecs \l'. ’Presid¢`ns

_ ’_')'ud9e ', \ 13 °_`)u..>'. 'Sd. '1'73(Tey.(l'r}m. (-\FP. 2003)..F0c a '?ro?osed mo¥ion 40 C'o< €ec-(' Nur\c’?ro`l'unc; +0

. ’Preva`\( , +he¢e. mus+ be Pfoc.¢ all M\e ?coc>c>sed luds»men-l's ( in 4+\`¢5 ease bo+’n 6€04ence5) mere

, AC.-tun\\`{ ?(D(`\ounf_€d` Bm}-l»\'\ V. 540\'(€ l€Md. 2_€]__? T\'\i§ Canbc$hown `\n-Hq¢ 0\"(3§(-\3( 'P{er-\

S\Sreemer\'\' (E_xh}br\~A) .Anc\ln -Hwe l`\`nd`m§ oC- l+\e ¥`nd$ bv Hwe~¥rin( er{' on `.Tanunr¥ 03'>"¢ 2003. (Elhl£i¢ E)

(Exl'\`\l=`r\'-E\ u_\h}ch_ C\ear|Y 649~\¢5 \'he lends 0€ \=0+¢\ E'>en-\enccs. Once »Pne l-r}a| Cour'(' _

_ PQl(ed 40 m\e an -H\ese_ Munc ’Pro Tunc mo`-Hons ¥`\\ec\ by ?e\n-\or on ‘.\`une ll.>$H` Zo(o, which were

, min`\s¢c¢`m\ 'm nolure. , -H~e QPPmPria-¢e. (emec§~l would be Manclamu$ Ke\`\eQ . \A(h`¢c»h R¢ln-h>r ”“‘

. nom ‘Seé‘LS .\ In R€f Df»'\iSY, lS(o 5033¢(. °(ZZ(TE'X.£\PF. DH|\RS 200§3 Ta Ob-k=\`m I"{And{-\mu_s

, R<.=_(`\e(2 9 'Kelnl¢or mus4 Sha\¢.._»‘. (l)_ Clem' r-\nd. `\nd\`

, Suchca( Conduds in‘?.us-Hon v`¢olnk;s min`¢s\Le<-`\Rl dulch (ZL_T'\‘\ere is no o-H\er adequn+e_ leSal

_ (e.mec\‘/ 04 law -Hwn-\- Md

_ Cr`\m .QPP. 20023 .:r_+'s Cles\r(Y ind`¢.sm('ab(e. 4+\¢>(& Ru|e£$ di£(`ececv¥la¥@ be&ween Cler`¢c;a\ ercors

'. -'H-\‘a§- H\e. Cnur-$ C0rreds 5 ice u_r|nn{' QQ~\un(l`l DCCurcd Dra(l‘/, finder gale 234 .`. Q=;'nd :\G}( -Ume

_ Cred`r\' C\'\anses under ®u\`e_ 23.2 per C<‘ed`\{ \'nu.\m‘d$ -\4\€ SEn-\€nc.€S. Bu\L no\+\`\n$ under Ru\e 23

_ avowed 1410 Hia‘\ (‘;nur-¥ ¥o"CMANGE." Hw_ oce\\\/ ?ranounc.ec\ Sen-\ences 0¢ ID\~/ 05.“-` 2001 40 (I‘?)

_ nine\een~\lenrs mnd(£oo}-\u¢ hundred davis and 263 days l-¢`me Cce¢¢`+ , ‘Sim\’\v because Tl>c_:'- ID

` KecocA Uvis`¢on ama no‘r fu{lY or \e$¢-'\HY erAer H\e L.l\ Z§Xda¥s ¥im¢ O_red¢`{a Ocdeceé bY %ese.

- ?\en Q‘Bree merv¥s A irr`\a\ Qo'ur]< does no\- hev; ‘Sjm&u]rorr 904+10¢14‘/ or c\`\zc

Sen\enc.e m emn¥ of n defend un'¥ bu+ eder q di(-chen+ €>en-Lence on his mr`¢-Hen _\ud§men{'.ou($ide

. Q(` a de(ht\an&s ’\’ces@nce ‘. Ex_?er&¢ /Y\pdaina , 70 6.».3¢\. 131 (Tex.cr'.m. am 2002). The sentences `

_ orally ?mnouncea on :ml~r osi‘=_ eeoc . ordered (ZH<.¢¢. 520€¢¢\4¢ (Zonen+v~-yem' ‘Sen+ences mi+h 258

dev ‘Hme, llceA{`{' `(he awarded -\irnc CC€A`C\' 06 Hwe krm$ b-¢ J

' +'he judse ocaw Pconounccd on Sc\ld munJ¢h baja aod Yevr, was unau+hr_>r`¢zec_£ BY law `/e{ H\e Jm"a(

C;mr’r Mem?l»s jco red<(`¥ -l+\`\s b~l Tud.§men¥ Nunc.’?r¢.`l'urc mere `\|\esa\ end un au+hov`czec§ bv \au>,

. meM<>dS. when made ¥he_oram pronounced °.`)en’¢enc.es un-nu+hor`rc.ed b1 law was; Jheawmdins 06 \-he.

. 258 davs ¥\me Cxedi+. u_>ha¥%el

_ wh‘\c~_h was .'\ud`\ca\ `\n na¥uce , 1\'0\'\(1‘_ (l)__ Ccea¥ed o Q\ed¢;a( ec

_GQr\-\ences un~Qu¥\'ur`

6 ~010'/0

»Conclusion-

. The record here is C\ear, as "`.>hou.»n by au exhibi-l-s +o u;.nn+ hc>s occured -. The harms . 0£-“'\€ '\’\en mreeJL.>~ece ?)F'ec`¢-eicz Te\'ms o€ (Z)~l'wo (20}41.00'\'¥‘/~ Yea( 5en'\€nc£s oo`\-\h 253 dev '\~ime

- Qred`r\ 40 be Se

- Lk+\\el`\eld) .'The)¢r`m( Coucj¢ did ecce¢>l' Hme P\en Mree,m¢n&$ and om(iv ’P" . "h£ \-r`m| Cour-{s own . F`md`\n$ o(` Cec!ss issued on jenuar‘/ 05,£' 2003 S+Mes H~.e-lerms a€%e?\ea ereemerd€ Qnd whr-\+

_ wasom\(¥ ”\>conoun:ed on ju\Y 0545 200{ (Exh b`\+ 53 bu¥ M-\'hn-¥~hme on IRnuF\(Y DK?`i` 2003 del

_ `m{enhonnuf ana know;ns\r abuse i¥'s d`\sc

_ +he:nrne 258 dm“s Hme Qreo<-¥ hnn¥ renders +he or`\S\nn\ '?\en name men+s un-P»u+hor¢zed log . lam. Theeven¥s o¢ Tnnunr¥ 08.- 2003 +hus onl~/ SeNQu.» +hz vee€FAed `\n\eo¥ion$ o€ H»\e -h'in"( Cour-(r ~)ro de?r`\ve. "Ke\nlce_s~.c 04` Lnu_u J'_-l' Cnnr\o“l' loe exPeded lhn-\-\-hej¢r`\al Qour+ will 9ch in 5000 __ 130an on `\\~'s own ._ `(he+r`¢n( 'C‘our~¥ has fe?ea¥cd\¥ v`\oln+ed Qlearf\’o`m{s a£ \mo . 'rhe X`-o\\ow'm§ are . on\¥ a Ceu>?oln¥s when mak`ms ‘lour decision 1

| .

n__ Awnrdance. al hmo Credi4 on Or`¢$im=\( Senlences

2L_19nor'¢ns £\enc\~z aimed da££e

31__1800(`\05 ’r{e

‘-D___ die o(-` Nunc '?ro Tunc +o CHANGE. decre+al Porhon ac Judsmen+$ ‘S\__ U$eo(-` Nun<`_ ’Pro Tur\c_ 412 MR_____€\’\C§€C SQn~¥er\c.es n

(&___A\oardm.‘§ o£ +im¢ Qreéi+ on ‘E')'ecor\cl (l"'l¥r) Sen~{ence -Vna( was un' Au-(-hor`¢c€cj on orisinnl ‘jen-\ence

"'l\.__‘Kznde\"m$ 5en-\ences ou-(»Si¢le 0€ decerv:hn'\$ ?<'esencer 8)___- Ke{'u$nl +o pdm/idc goal decision cf 21)|.`/()_] ,evt/\ 44 Qel/l~{¢>£$/ (;@5~}, A-_;¥g/` QE)P€A~}¢J 1287¢/¢’5'/5.

7 - 0/'»/0

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were issued » 60 +hn\» \'he. orZ_S'¢na( C\a`¢ms Can be Qddc€ssed 95 ¥he CL>uHb 04` erminnl R?Pea(S _ ?\emnnd ordec ori§`¢na((f ordere)¢i£ 14 is esi

. M'\<)me`( QPFoan

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_ dc mv hnoco\edse '! 50 hew me %c>d _

_ ‘ 0/ . €}sned%e_di:’_dnvo€Za/L 2015-

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. E\___ F'.nd`\ns 0£ Fac€$ Tan. 08*;" 2003 _____ 2 ?ases . F'\_ ']`ud$m en+ Munc. ’?rc> Tunc, 'Xnn 0%)'*` 2003 lo Y&Ses - QL__ un`\-¥ Q%L§nmen‘r Shez+ _____ l we

_ HL___ l\'\o-\ion To €\’T\€r `.¥ud_.Sm'Cn+ P\(unc 'F\'t> Tun€'. piled june l(o>'u’ 2010

/a»w”'//

,, Scannecl Januarv 8 2005 @-g

~..., , _ =" " _ §, AGREED PuN1sHMENTRizC0MMENDATioN ‘ ‘ " ` 35111-9<¢1113131111€1- Couni JUL 0 a 290 HUNT COUNTY, TEXAS

m Cl-EBK mr

Cnusc No: 20,570 Dat¢ July 5,"§66!lu';’ ""”-'CO 1:1__ Dcf€ndam; BRIAN KEITH MELTON Off¢nge; Burglary ofa Habitation

"’ lt is mutually agreed and recommended to the Coun:

( __ ) Prosecution should proceed only on count(s)

( _ ) Prosccution for the Lesser included Oft`ensc 01`-.

/ il

( _ ) Class A. lvlisdemeanor punishment with Third De_grec Felony ConvictionCu/nder 12.44 P.C

.1. ( ___ ) Deferred Adjudication Probation for years l _ ) A fine of 3 "' ( _§ ) Conf`mement:

20 years in the Institutional Division years/months/days in the Hunt County lail ... years/month/days 1n Community Correctional Facility __) Al"ter conviction Probation be granted of the term assessed as punishment (__‘_ ) Jail Term to be served by

(_) El ectronic Monitoring (___) Community Service "' [ )Jail Work Rclcase ( __) Off Work Weekends ) Res_titution (_X:) Othcr Punishment

Reconlmcndations: 258 days Cr'€dit.

"' NOTE: Thc parties are nut allowed to make binding agreements regarding the length of probation supervision or the terms and

conditions of probation However, non -binding recommendations will be considered as follows: 0

( _ ) Shock Probation (_ ) Boot Camp Alt Incarceration Prograrn (_ ) Restitution Center (_ ) Detentio`n for a term of_ __ days ( ) Community Service hours ( ) Substancc Abuse Treatment Faciliry

( __) Electronic Monitoring (_ ) Community Correction Facility

V»--- /

Defendant

_ ..1 ' l/§C\oc§~l~\ml;, /\ <\

Counsel for D§ fendant\j

Prosecut

»~Il

NO_ 20,570

-_"

THE STATE OF TEXAS IN THE DISTRICT COUR

VS. OF HUNT COUNTY, TEXAS

'BRIAN 1

JUDGMENT OF PLEA OF GUILTY OR NOLO CONTENDERE BEFORE COURT WAIVER OF JURY TRl[AL (NO COMMUNITY SUPERVISION)

4 l JUDGE PRESIDING:_JQ£,LM;Q_@KQQ 1/'; 2 .,M,W_/ DATE OF JUDGMENT; Juiy 5, 2001

AT__TORNEY FOR STATE: F. DUNCAN THOMAS ATTORNEY FOR ASST. DIST. ATTORNEY: Joel Littlef'ield DEFENDANT: Ray Hopson OFFENSE CONVICTED OF; Burglary of`a Habitation DATE OFFENSE . \_ DEGREE: F@lony 2 COMMITTE ; January 24, 2001 CHARGING INSTRUMENT; Indictment PLEA: Guilty TERMS OF . PLEA BARGAIN; Twenty (20) years TDCJ-ID PLEA TO ENHANCEMENT FINDINGS ON PARAGRAPH (S): N/A ENHANCEMENT: N/A

FINDINGS ON USE OF The Court finds that the Defendant Did NOf use or exhibit a DEADLY WEAPON: deadly weapon in the commission of the offense or during immediate flight there from

DA£TE SENTENCE

IMPOSED; July 5, 2001 ' COSTS; $249.25 PUN1SI~1MENT AND PLACE DATE To oF CoNFlNEMENT Tw@nty (20) years TDCJ-ID COMMENCE; 1111y 5, 2001

TOTAL AMOUNT TIME CREDITEDI 258 days OF RESTITUTION:

` CONCURRENT UNLESS OTI-l_ERWlSE SPECI.FI.'ED

Page l 0f3

The Defendant having been duly charged in the above entitled and numbered cause for the felony offense of Burglary ofa Habitation and this cause being this day called, the State appeared by her District Attorney F. Duncan Thomas and the Defendant,

BRIAN KEITH MELTON appeared in person with his

attomey, Ray HOPSOH and both parties announced ready7 and the Defendant', in person and in writing, in open Court having waived his right of trial by jury, such waiver being with the consent and approval ofthe Court, and now entered of record on the minutes ofthe Court and such waiver being with the consent and approval ofthe District Attorney of Hunt County, Texas., in writing signed by him, and filed in the papers oftliis cause before Defendant entered his plea herein, the Defendant was duly arraigned and in open Court pleaded Guilty to the charge contained in the Indlciment . thereupon the Defendant was admonished by the Court ofthe consequences ofthe said plea and the Court finds that the Defendant is mentally competent and that he_is uninfluenced in making said plea by any consideration of fear, or by any ~persuasion, or by delusive hope of pardon prompting him to confess his guilt; and the said plea was accepted by the Court is now entered of record as the plea herein ofthe defendant The defendant in open Court, in writing, having waived the reading ofthe indictment, the appearance, confrontation, and cross-examination of witnesses, and having agreed that the evidence be stipulated, and having consented to the introduction oftestimony by affidavits, written statements of witnesses and other documentary evidence, and such waiver and consent having been approved by the Court in writing and filed in the papers ofthe cause; and the Court, having heard the Defendant's waiver ofthe reading ofthe indictment, the Defendant's plea thereof, the evidence submitted, and the argument of counsel, is ofthe opinion from the evidence submitted that the Defendant is guilty as charged.

IT IS THEREFORE ADJUDGED BY THE COURT, that the said Defendant is guilty of the felony offense of

Burglary ofa Habitation 4 /;;=-:--»--'-,-\_ as found by the Court, that the said Defendant committed said offense n/January 24, 2001 / that the punishment ig hereby assessed at Twenty (20) years L_confinemen/tui the Texas Department of Criminal

Justice Institutional Division, that the Defendant be punished in accordance with same and that the State of Texas do have and recover ofthe said Defendant all costs in the prosecution expended, for which execution will

issue.

THEREUPON the said Defendant was asked by the Court whether he had anything to say why said sentence should not be pronounced against him, and he answered nothing in bar thereof, and the Court having found that the Defendant is mentally competent, understands the English language and is a citizen ofthe United States of America, the Court proceeded in the presence of said Defendant, his counsel also being present, to pronounce

sentence against him, as follows:

IT IS THE ORDER OF THE COURT that said Defendant, who has been adjudged to be guilty of the offense of

Burglary Ofa HabifatiOrl and whose punishment has been assessed by the Court at confinement in the Texas Department of Criminal Justice-lnstitutional Division

fOr TW@nty (20) years , be delivered immediately by the SheriffofHunt County, Texas, to the _ Director ofthe Texas Department of Criminal Justice Institutional Division or other person legally authorized to

receive such convicts, and said Defendant shall be confined in said Texas Department of Criminal Justice Institutional Division for Twenty (20) years in accordance with the provisions ofthe law governing the Texas Dcpartment ofCriminal Justice, and the Defendant is remanded tojail until said

Sheriff can obey the direction Ofthis sentence

Page 2 of 3

The Court finds that the Defendant Did Not use or exhibit a deadly weapon in the commission ofthis offense or during immediate fiight therefrom. '

It is further ADJUDGED AND DECREED by this Court that the sentence pronounced herein shall begin this date, and that the Defendant is granted 258 days credit for time served injail.

IT IS FURTHER ORDERED by the Court that Defendant pay Court costs, court appointed attorncy's fees, and restitution and/or reparation as set out in Exhibit C in the total amount of $ I and the Court hereby ORDERS that this Defendant pay this total amount as a condition of parole pursuant to Art. 42. 12

Of the Texas Code of Criminal Procedure in monthly payments while on parole of $ per month. Said payments due on or before the seventh day of each month payable to the Hunt County Adult

Probation Office, P. 0. BoxI l 141, 2423 King Street, Greenville, Texas, 7540 1.

SIGNED on this the 5th day of July [ 2001 ORlGlN/\L SlGNED BY §"ilCl'lAFiD A. BEACOM JR. . JUDGE: JUDGE PRESIDING _ Notice oprpeal; Right Date: July 5, 2001 Thumb Print Datc: lnitials:

4Pagc 3 0f3

k

No. 20,572

THE ST/-\TE OF TEXAS IN THE DISi`RIC'f COURT Vs. ()F I-lUNT COUNTY, TEXAS

315"% BRIAN KEITH MELTON lee th JUD1C1AL DISTRICT

JUDGMENT OF PLEA OF GUILTY OR NOLO CONTENDERE BEFORE COURT- WAIVER OF JURY TRIAL (NO COMMUNITY SUPERVISION)

l JUDGE PREsIDING; semnard- MMQ H,,,.,ww\,/ DATE oF JUDGMENT; 1111y 5, 2001

ATTORNEY FOR STATE: F. DUNCAN THOMAS ATTORNEY FOR ASSTl DIST. ATTORNEY: 1061 Liffl€f"l€ld DEFENDANT: Ray HOIJSOH OFFENSE

CONVICTED OF; Burglary ofa Habitation with Intent to Commit Theft.

DATE OFFENSE

DEGREE: FClOrly 2 COMMITTED: MarCh 27, 2001 CHARGING INSTRUMENT: Indictment PLEA: Guilty

TERMS OF

PLEA BARGAIN; Twenty (20) years TDCJ-ID

PLEA TO ENHANCEMENT FINDINGS ON

PARAGRAPH (S); N/A ENHANCEMENT: N/A

FINDINGS ON USE OF The Court finds that the Defendant Did NOt use or exhibit a DEADLY WEAPON: deadly weapon in the commission of the offense or during immediate flight there from

DATE SENTENCE

IMPOSED; July 5, 2001 COSTS; $249.25 PUNISHMENT AND PLACE DATE To oF CONFINEMENT Tw€nty (20) years TDCJ-ID COMMENCE; Juiy 5, 2001

TOTAL AMOUNT TIME CREDITED; 258 dayS OF RESTITUTION:

CONCURRENT UNLESS OTHERWISE SI)ECIF[ED

'fhe Defendant having been duly charged in the above entitled and numbered cause for the felony offense of Burglary ofa Habitation with Intent to Commit Theft. and this cause being this day called, the State appeared by her District Attorney F. Duncan Thomas and the Defendant,

BRIAN KEITH MELTON appeared in person with his attorney, Ray HOPSOH and both parties announced ready, and

the Defendant, in person and in writing, in open Court having waived his right of trial by jury, such waiver being with the consent and approval ofthe Court, and now entered ofrecord on the minutes ofthe Court and such waiver being with the consent and approval ofthe District Attorney ofHunt County, Texas., in writing signed by him, and filed in the papers ofthis cause before Defendant entered his plea herein, the Defendant was duly arraigned and in open Court pleaded Guilty to the charge contained in the Indi€tm@nt . thereupon the Defendant was admonished by the Court ofthe consequences ofthe said plea and the Court finds that the Defendant is mentally competent and that he is uninfiuenced in making said plea by any consideration of fear, or by any -persuasion, or by delusive hope of pardon prompting him to confess his guilt; and the said plea was accepted by the Court is now entered ofrecord as the plea herein ofthe defendant The defendant in open Court, in writing, having waived the reading ofthe indictment, the appearance, confrontation, and cross-examination of witnesses, and having agreed that the evidence be stipulated, and having consented to the introduction oftestimony by affidavits, written statements of witnesses and other documentary evidence, and such waiver and consent having been approved by the Court in writing and filed in the papers ofthe cause; and the Court, having heard the Defendant's waiver ofthe reading ofthe indictment, the Defendant's plea thereof, the evidence submitted, and the argument of counsel, is ofthe opinion

from the evidence submitted that the Defendant is guilty as charged

IT IS THEREFORE ADJUDGED BY THE COURT, that the said Defendant is guilty of the felony offense of Burglary ofa Habitation with Intent to Commit Thef`t. as found by the Court, that the said Defendant committed said offense on March 27, 2001 that the punishment is hereby assessed at Twenty (20) years confinement in the Texas Department of Criminal Justice Institutional Division, that the Defendant be punished in accordance with same and that the State of

` Texas do have and recover ofthe said Defendant all costs in the prosecution expended, for which execution will

THEREUPON the said Defendant was asked by the Court whether he had anything to say why said sentence should not be pronounced against him, and he answered nothing in bar thereof, and the Court having found that the Defendant is mentally competent, understands the English language and is a citizen ofthe United States of America, the Court proceeded in the presence of said Defendant, his counsel also being present, to pronounce

IT IS THE ORDER OF TH]E COURT that said Defendant, who has been adjudged to be guilty of the offense of Burglary ofa Habitation with Intent to Commit Thef`t. and whose punishment has been assessed by the Court at confinement in the Texas Department of Criminal Justice-Institutional Division '

fOr TW@HW (20) years , be delivered immediately by the Sheriff of Hunt County, Texas, to the ‘ Director ofthe Texas Department of Criminal Justice Institutional Division or other person legally authorized to

receive such convicts, and said Defendant shall be confined in said Texas Department of Criminal Justice Institutional Division for Twenty (20) years in accordance with the provisions ofthe law governing the Texas Department of Criminal Justice, and the Defendant is remanded tojail until said

.Sheriff can obey the direction ofthis sentence.

l’age 2 of 3

The Court finds that the Defendant Did NOl usc or exhibit a deadly weapon in the commission ofthis offense or during immediate flight therefrom.

It is further ADJUDGED AND DECREED by this Court that the sentence pronounced herein shall begin this date, and that the Defendant is granted 258 days credit for time served injail.

I'l` IS FURTHER ORDERED by the Court that Defendant pay Court costs, court appointed attorney's fees, and restitution and/or reparation as set out in Exhibit C in the total amount of $ I and the Court hereby ORDERS that this Defendant pay this total amount as a condition of parole pursuant to Art. 42.12

of the Texas Code of Criminal Procedure in monthly payments while on parole of $ per month. Said payments due on or before the seventh day of each month payable to the Hunt Cotuity Adult

Probation Office, P. 0. BoxI l 141, 2423 King Street, Greenville, Texas, 7540 1.

sIGNED 0110115111@ 501 day Of 1111y l 2001

ORlGlNAL SlGNED BY . '-‘“EECHARD A. BEACOM JFi. . JUDGE JUDGE PRESIDING Notice of Appeal: Right ' Date: JUly 5, 2001 'l`humb Print Date: lnitials:

l)age 3 of3

TEXAS DEPARTMENT OF CR|M|NAL JUST|CE CUSTOD|AN OF OFFENDER RECORDS TlME CRED|T DlSPUTE RESOLUT|ON FlNAL CERT|F|CAT|ON DEC|S|ON

Offender Name : MELTCN,BR|AN KE|TH TDCJ# : 01052738 Offender Location : CY

You filed a request for correction of time credited{toward the completion of your sentence pursuant to the Department’s internal time credit dispute resolution process to address time credit calculation error complaints.,

Your request for correction of calculation of the time credit earned toward completion of your sentence was received by the Custodian of Offender Records on 2/27/2012 . Pursuant to Section 501 ~.0081 of the Texas Government Code, the Custodian of Offender Records is required to issue a finding in an attempt to resolve the complaint

The Custodian of Offender Records issues the following finding regarding your complaint: .

You were given time credit back to the date of.ithe`offense. We cannot give time credit before the date you committed the offense;

|f you are dissatisfied with this response from the Custodian of Offender Records, you may contact State Counse| for futher assistance.

This concludes the administrative processing of this complaint by the Texas Department of Crimina| Justice.

DATE z 4/2/2012 5_"'2

siGNATuRE; 1% ala , C:WZ,J\

TiTLE: AssisTANT oiREcToR FoR ci_AssiFicATioN AND REcoRos

ADDREss; TDcJ cLAssiFicATioN AND REeoRDs oFFicE BoT wAREHousE P_o. Box 99

HUNTSV|LLE, TEXAS 77342

lN THE COURT OF CR|M|NAL APPEALS OF TEXAS

NO. 441,431-02; 44,431-03

EX PARTE BRIAN KEITH MELTON, Applicant

ON APPLICATION lFOR WRIT OF HABEAS CORPUS FROM HUNT COUNTY

The order was delivered per curiam.

QLIE_R

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Ar_ticle 1 1.07, V.A.C.C.P. E)MQ mg 418 S.W.Zd 824 (Tex. Crim. App. 1967). Applicant was convicted of two counts of burglary of a habitation and punishment was assessed at two terms of twenty years in prison. No appeal was taken from these convictions.

In his present application, Applicant contends that he is being denied time credit on his sentences and that his guilty pleas were involuntary because his plea bargains included

the term that he would receive 25 8 days jail time credit, but he has not been credited with this

MELTON - 2

time. Applicant also asserts that his counsel was ineffective for recommending a plea bargain that could not be fulfilled and that his sentence is illegal because the Texas Department of Criminal Justice Will not change his records to reflect the 258 days credit because that would result in sentence begin dates which predate the offenses.

The trial court has not entered findings of fact or conclusions of law. Applicant has alleged facts which, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and that since this Court cannot hear evidence, the trial court is the appropriate forum. 'll`he trial court may resolve those issues as set out in Article 1 1.07, § 3 (d), V.A.C.C.P., in that it may order affidavits from the appropriate parties, or it may order depositions, interrogatories, or a hearing. In the appropriate case, the trial court may rely on its personal recollection

If the trial court elects to hold a hearing, that court should first decide whether Applicant is indigent If the trial court finds that Applicant is indigent, and the Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04, V.A.C.C.P., appoint an attorney to represent him at the hearing

Following receipt of additional information, the trial court should make findings of fact as to whether 258 days of jail credit was an element of Applicant's plea bargain. The trial court should also determine whether applicant has presented this claim to the Texas

Department of Criminal Justice time credit dispute resolution office as required by V.T.C_.A.

Gov't Code § 501.0081. See Ex parte Stokes, 15 S.W.3d 532 (Tex. Crim. App. 2000). The

MELTON - 3

trial court should also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief.

Since this Court does not hear evidence, Ex Parte Rodriguez, 169 Tex.Cr.R. 367, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order.l A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition along with the trial court's supplemental findings of fact and conclusions of law shall be returned to this Court

within 120 days of the date of this order.2

DELIVERED: AUBuSC 14 , 2002 DO NOT PUBLISH

1 In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2 Any extensions of this time period should be obtained from this Court.

‘Scanned Januarv 28, 2005

Ex Parte

BRIAN KEITH MELTON

WRIT NO. 44,431~02 & 44,43]-03 Trial Court No. 20,570 & 20,572

FINDlNGS OF FAC'I` AND CONCLUSIONS OF LAW

On August 14, 2002, the Court of Criminal Appeals of Texas ordered this Court

to make findings of fact and conclusions oflaw in regards to the Writ oi`habeas corpus in

which the applicant alleged that he has not been given 258 daysjail credit that was part of

his plea agreement .

Atter reviewing the record and the information contained in the Court’s file, the

Court makes the following findings of fact and conclusions oflaw:

l.

Ui

The applicant was sentenced to 20 years in the 'l`exas Department of Cn`minal Justice Institutional Division on July 5, 2001.

The applicant’s plea of guilty was a result ofa plea bargain with the State of Texas.

As part of the plea bargain, the applicant was to receive 258 days jail credit. (See attached exhibits 1 and 2 which are agreed punishment recommendations from the

Court’s file.)

The 258 days jail credit results in a sentence begin date which predates the offense date by 157 days.

'i`he Court finds that the applicant is entitled to the additional 157 days credit, as they were part of his plea agreement

The Court finds that a Nune Pro Tunc judgment should be entered which changes the applicant’s sentence in order to credit him with the time he is entitled to, and to effect the plea agreement (See attached exhibits 3 and 4 which are Nune Pro Tune judgments in cause numbers 20,570 and 20,572.)

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IT IS SO ORDERED.

Signed this the § 5 day ofJanuary 2003.

.:/' // Judge Rich‘ard A. Eieac Presiding Judge

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No. 20,570

THE sTATE oF TE_xAs IN THE Drsrmcr c vs. CD`\ oF HUNT COUNTY, 354TH JUDICIAL r)i

BRIAN KEITH MELTON NUNC PRO TUNC JUDGMENT WHEREAS, the Court finds that a Nunc Pro Tunc judgment should be entere applicant’s sentence in order to credit him with the time he is entitled to, and to effect the

judgment is hereby corrected and entered as follows:

JUDGMENT OF PLEA OF GUILTY OR NOLO CONTENDERE BEFOR.E C( WAIVER OF JURY TRIAL (NO COMMUNITY SUPERVISION) JUDGE PRES[DING: Richard Beacom DATE OF IUDGMEI\

ATTORNEY FOR DEFENDANTI Ra! HOE

D WNSE @;EFD: Januan @55§1§

FINDINGS ON ENHANCEMENT: N

A'i'roRNEY FoR s_TATE: F. DUNCAN THOMAS Assr. DisT. ATroRNEY: Joel Littlefield

OFFENSE CONVICTED OF: Burgla_ry of a Habitation

DEGREE: Felony 2 cHARGING iNs'TRUMENT; indictment

TRIAL BEFORE THE COURT AND'SENTENCE: Nineteen (19) years, 200 days

PLEA TO ENHANCEMENT PARAGRA.PH (S): N/A

FINDINGS ON USE OF The Court finds that the Defendant Did Not use or exhibit a DEADLY WEAPON: deadly weapon in the commission of the offense or during imme

flight there from DATE SENTENCE

IMPOSED: July 5z 2001 lCOSTS: $249.25

DATE TO COMMENCE: July 5z

PUNISHMENT AND PLACE OF CONFINEMENT: 19 years, 200 days TDCJ-ID

f g TiME CREDITED= 258 days d

CONCURRENT UNLESS OTHERWISE SPECIFIED

'l`O'I`AL AMOUNT OF RESTITUTION: _

'STRICT

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TEXAS

d which‘ changes|the

plea agreement The

)URT T: 01/08/2003

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242 2001

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The Defendant having been duly charged in the above entitled and numbered cause for the felony offense of Burglary of a Habitation and this cause being this day called, the State appeared by her District Attorney F. Duncan Thomas and the Defendant, ~

Brian Keith Melton appeared in person with his Ra Ho son ~ _ nd age Defendant in erson and in writin in o en Court havin waived his ri ` ` such waiver

being wit the consent and approval of the Court, and now entered of record on the minutes of the Court and such waiver being with the consent and approval of the District Attorney of Hunt County, Texas. ., in writing signed by him, and filed in the papers of this cause before Defendant entered his plea herein! the Defendant was dg‘§¥ giraign§d agd m open Court pleaded Guilty to the cha'rge contained in the 111 ICtm€nt thereupon the Defendant was admonished by the Court of the conse.quences of the said plea and the Court finds that the Defendant is mentally competent and that he is uninfluenced in making said plea by any consideration of fear, or by any -persuasion, or by delusive hope of pardon pronipting him to confess his guilt; and the said ple‘a was accepted by the Court is now entered of record as the:plea herein of the defendant The defendant in open Courta in writingl having waived the reading of the indictmentl the appearance confrontation, and cross- -examination of witnesses, and having agreed that the evidence be stipulated, and having consented to the introduction of testimony by affidavits, written statements of witnesses

and other documentary evidence, and such waiver and consent having been approved by the Court in writing and filed 111 the papers of the cause; and the Court, having heard the Defendant' s waiver of the reading of the indictment, the Defendant's plea thereof, the evidence submitted, and the argument of counsel, is of the opinion from the evidence submitted that the Defendant is guilty as charged

I'I` IS TI~[EREFORE ADJUDGED BY THE COLII{T, that the said Defendant is guilty of the felony offense of

Burglary of a Habitation as found by the Court, that the said Defendant committed said offense on January 24, 2001 that the punishment 15 hereby assessed at Nineteen (19) years, 200 days confinement in the Texas Department of Criminal

Justice lnstitutional Division, that the Defendant be punished in accordance with same and that the State of Texas do have and recover of the said Defendant all costs in the prosecution expended, for which execution will

lSSU€. ` - l

THEREUPON the said Defendant wa_s asked by the Court whether he had anything gte /» should not be pronounced against him, and he answered nothing in bar thereof, and ¢~Co rt having found that

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Wns.thim as follows

~{.;1 `, IT IS THE ORDER OF THE COURT that said Defendant, who has §U s ged to be guilty of the offense of Burglary Of a Habltatl°n § \ and whose: punishment has been assessed by the Court at confinement in the Texas Department of`@r`i‘r,ilinal Justice- Institutional Division for Nineteen (19) Yeaf$, 200 days ,be delivered immediately by the Sheriff of Hunt County, Te:xas, to the Director of the Texas Department of Criminal Justice Institutional Division or other person legally authorized to receive such convicts, and said Defendant shall be confined in said Texas Department of Crim'inal Justice Institutional Division for Nineteen (19) years, 200 days in accordance with tl:e provisions of the law governing the 'I`exas Department of Criminal Justice, and the Defendant is remanded to ja 1 until said Sheriff can obey the direction of this sentence. l

Page'Z of 3

, ¢-

‘ '1`h'e Court'f:i`iids that the Defendant Did Not use or exhibit a deadly weapon in the cc mmission ofthis offense or during immediate flight therefrom.

It is further ADJUDGED AND DECREED by this Court that the sentence pronounced her:in shall begin this date, and that the Defendant is granted£ 258 d days credit for time served injail.

IT IS FURTHER ORDERED by the Court that Defen ant pay Court costs, court appointed attorney's fees, and restitution and/or reparation as set out in Exhibit total amount of $ Q\L“loi . 115 I and the ` Court hereby ORDERS that this Defendant pa ount as a condition of parole pursuant to Art. 42.12 of the Texas Code of Criminal Procedure iri¢m`)Wi yments while on parole of $ RS- 00

per month. Said payments due on or befo §§ si sei§h day of each month payable to the Hunt County Adi.ilt Probation Office, P. 0. Box I 1 141, 2 f§§`Sti;eet, Greenville, Texas, 7540 1. '

Tl"iS FUR'I`HER ORDERED that Defen ' in th subsume ' abuse program Mi upon av -` - and follow afl guidelines and instructions until pro ' bca

SIGNED on this the t . Yday o

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tubes PREsiDiN‘G" ' )K

Notice of App_eal: . '\L\jc;\`\\; ek _ Right

Date: July 5, 2001 'l`humb Print

Date:¢dj' id ` "1111`11111$:/&

Page 3 of 3 SCANNED

el ‘/5 """ b ' . \‘. No. 20,572 THE STATE OF TEXAS IN '_I`HE DISTRICT COURT vs. C§)\ . . OF HUNT COUNTY, TEXAS BRIAN KEITH MELTON 354TH IUDICIAL DISTRICT NUNC PRO TUNC'JUDGMENT WHEREAS, the Court finds that a Nune Pro Tunc judgment should be entered which‘ changes ithe applieant’s sentence in order to credit him with the time he is entitled to, and to effect the plea agreement The judgment is hereby corrected and entered as follows: JUDGMENT OF PLEA OF GUILTY OR NOLO CONTENDERE BEFORE COURT WAIVER OF JURY TRIAL (NO COMMUNITY SUPERVISION) JUDGE PRESlDING: Richard Beacom z DATE OF IUDGMENT: 01/08/2003 ATI`ORNEY FOR STATE: F. DUNCAN THOMAS n ATTORN£KY ASsT. DIST. ATroRNEY: Joel Littlefield DEFE ' A ay Hop_s_gg oFFENsE v`° CONVICTED OF: Burglary of a Habitation with intent to commit the DA FENSE ~ DEGREE: Felony 2 ` fI`TED: March2_7“t 001 CHARGING lNSTRUMENT: lndictment : Guilty TRIAL BEFORE THE COURT . AND SENTENCE: Nineteen (19) years, 200 days TDCJ-lD PLEA TO ENHANCEMENT FINDINGS ON PARAGRAPH (S): N/A ENHANCEMENT: N A FINDINGS ON USE OF The Court finds that the Defendant Did Not use or exhibit a DEADLY WEAPON: deadly weapon in the commission of the offense or during immediate flight there from DATE SENTENCE IMPOSED: July 5, 2001 COSTS: $249.25 PU`NISHMENT AND PLACE DATE TO OF CONFINEMENT: 19 years, 200 days TDCJ-ID ‘ COMMENCE; July 5, 2001 _ LTIME CREDITED: 258 days \ ‘ TOTAL AMOUNT k OF RESTITUTION: CONCURRENT UNLESS OTHERWISE SPECIFIED

The Defendant having been duly charged in the above entitled and numbered cause for the felony offense of 'Burglary of a Habitation with Intent to Commit Theft and‘this cause being this day called, the State appeared by her District Attorney F. Duncan Thomas and the Defendant, "

Brian Keith Melton appeared in person with his Ansl.bs.tlmuisi.annqiiiissd.m£d_

_mv_ ay Hopson d .

eDefen ant in erso ' wri in in o en urthavin waived his ri t of trial b 'ury, such waiver being with the consent and approval of the Court, and now entered of record on the minutes of the Court and such waiver being with the consent and approval of the District Attorney of Hunt County, Texas., in writing signed by him, and filed in the papers of this cause before Defendant entered his plea herein t Defe nt wa

duly arraigned and in open Court pleaded Guilty to the cha§ge contained in the

lndictment . thereupon the Defendant was admonished by the Court of the consequences of the said plea and the Court finds that the Defendant is mentally competent and that he is uninfluenced in making said plea by any consideration of fear, or by any -persuasion, or by delusive hope of pardon prom'pting him to g confess his guilt; and the said plea was accepted by the Court is now entered of record as the plea herein of the defendant The defendant in open Courtl in writingl having waived the reading of the indictment, the appearance, confrontation, and cross-examination of witnesses, and having agreed that the evidence be stipulated, and having consented to the introduction of testimony by affidavits, written statements of witnesses and other documentary evidence, and such waiver and consent having been approved by the Court in writing and filed in the papers of the cause; and the Court, having heard the Defendant's waiver of the reading of the indictment, the Defendant's plea thereof, the evidence submitted, and the argument of counsel, is of the opinion from the evidence submitted that the Defendant is guilty as charged.

IT IS THEREFORE ADJUDGED BY THE COURT, that the said Defendant is guilty of the felony offense of

Burglary of a Habitation with Intent to Commit Thefi . as|found by the Court, that the said Defendant committed said offense on March 27, 2001 that the punishment is hereby assessed at Nineteergl9) years, 200 days confinement in the Texas Departn'i"en't~ of Criminal'

Justice Institutional Division, that the Defendant be punished in accordance with sameé_;:a£:l{tl@ii the State of Texas do have and recover of the said Defendant all costs in the prosecution expended or ;h_ich execution will issue. Wt>

Dhy said sentence

ur't having foun‘d that t title United States of resent to ro ounce _

THEREUPON the said Defendant was asked by the Court whether he had anything‘t should not be pronounced against him, and he answered nothing in bar thereof, an

the Defendant is mentally competent, understands the English language and is a "" America, the Court roceeded in the resence of said Defendant his counsel al

sentence against him, as follows: f

L£{"'~,' IT IS THE ORDER OF THE COURT that said Defendant, who has been adju g o to be guilty of the offense of Burglary of a Habitation with Intent to Commit Theft and who§e punishment has been assessed by the Court at confinement in the Texas Department of Criminal Justice-Insti:tutienal Division for Nineteen (19) Y¢ar$. 200 days , be delivered immediately by the Sheriff of Hunt County, Texas, to the ._ ' Director of the Texas Department of Criminal Justice Institutional Division or other person legally authorized to receive such convicts, and said Defendant shall be confined in said Texas Department of Criminal Justice Institutional Division for Nineteen (19) years, 200 days in accordance with the provisions of the law governing the Texas Department of Criminal Justice, and the Defendant is remanded to ail until said ' Sheriff can obey the direction of this sentence.

'r

The.Coui't finds that the Defendant Did Not use or exhibit a deadly weapon in the corr mission of this

offense or during immediate flight therefrom.

,..

It is further ADJUDGED AND DECREED by this Court that the sentence pronounced herei and that the Defendant is granted‘ 258 l days crediter time served injail.

IT IS FURTHER ORDERED by the Court that Defendant pay Court costs, court appointed restitution and/or reparation as set out in Exhibit C in the total amount of $ QLiC`\ o 95 Court hereby ORDERS that this Defendant pay this total amount as a condition of parole 12

ii shall"begin this date,

attorney's fees, and

land the

of the Texas Code of Criminal Procedure in monthly payments while on parole of $ 935

¢C'O

ursuant to Art. 42. 12

per month. Said payments due on or before the seventh day of each month payable to the Hunt County Adult

Probation Office, P. 0. BoxI I 141`, 2423 King Street, Greenville, Texas, 7540 1. ITBFUM'HERQRD ORDBRBDtha!Defmdm! lebanon tyndfonewal!

dane wagon Mwomuntilpmmi¢empw

_ day of ,@Wwa/M,i C/ UV

SIGNED on this the t . 4

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Notice of Appeal: §t\c\`\\| €Li ` Right Date: July 5, 2001 4 ' 'I'humb

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Causc No._¢_“t /.

State of Texas § lin the 354"' District Court Hunt County, 'I`x. "`""”~~`i;-`,¢:,,,,__ Vs. § with Brian K. Melton, Prose §

Motion to enter Nune Pro Tunc order; Undei' Tx. R. App. P.; Rule 23.2 ( Clerical Error )

To the Honorable Judge of said court1 Now comes, Brian Keith I\/lelton, prose, defendant in the above entitled and numbered cause and moves the court to enter the correct judgement of 20 years with 258 days time credit to commence on the 5"‘ day of July 2001, as the terms of the plea agreement reached with the state, and in support of such motion shows:

].

Defendant Was charged With Burglary of Habitation_, Texas penal code~30.02 with an offense date of ___l -24-0]___. The Defendant, Brian Keith Melton, defendants appointed attorney, Raymond Hopson, and the attorney for the state , Joel Littlefield reached a plea agreement of 20 years with 258 days time credit, Said time credit of 258 days was an element of the plea agreement This agreement was taken before the District Judge of the 354"‘ court; Richard Beacom on the 5“‘ day of July. At that time the plea agreement by Judge R. Beacom to read that as part of the plea agreement reached between the attorney for the State of Texas, Mr. Littlefield and the defendant, Brian K. Melton punishment Would be assessed at 20 years With 258 days time credit, No appeal was taken.

H.

Upon transfer to Texas Department of Criminal Justice, said defendant was informed that due to both State and Federal law, that the 258 days time credit could not be honored_, even though it Was an element of the plea agreement, because it Would pre-date the offense date. Defendant then tried to contact his attorney, R. Hopson and received no response Defendant also wrote to the trial court

. and received no response At that time, defendant filed an ]l. 07, writ of Habeas Corpus. On January

8, 2003, Convicting court entered finding of facts and conclusions oi"law. In which they stated the following:

Presented re JUDGE l 0{3 Rl,ettii'ned unsigan

Deputy

l l:) Yes_, the»defendant was sentenced to 20 years with 258 days time credit as part of a plea agreement between the State of Texas and said defendant

2: ) Yes, the defendant is entitled to said 258 days time credit as it is an element of the

plea agreement. j lt was then stated that the 258 days time credit was a clerical error, and that a judgement

Nunc Pro Tunc should be entered to change the defendants sentence This has created a clerical

error as the defendants holding sentence does not reflect terms of the plea agreement pronounced on

the 5“‘ day of July 2-001. lt is the defendants right under Tex. R. App. P. Rule 23.2 for Written

judgement to reflect judgement pronounced. The trial court did not have proper authority to grant

judgement Nunc Pro Tunc on .lanuary 8, 2003. Under Tex. R. App. P. Rule 23.2, as there was

clearly no clerical error to be corrected The written judgement and judgement pronounced

mirrored one another perfectly and both specifically addressed the time credit of 258 days.

HI.

The trial court can now enter judgement Nune Pro Tunc to correct the clerical error in the judgement addressed above. As required under Tex. R. App. P., Rue 23.2, to reflect judgement as pronounced on the 5"1 day of July 2001. A defendant is required to seek a correction under Tex. R. App. P. Rule 23.2 from trial court before seeking relief from a higher authority. EX Parte Pena. 1711 S. W 3D 336; 337 ( Tex. Crim. ADD 12002). Ex Parte Ybarra `i49 S W. 3D 147 (2004) Should the trial court fail to enter judgement Nunc Pro Tunc correcting clerical error defendant would be left no choice but to seek relief from a higher authority.

Conclu§ion.

The defendant Brian Keith Melton, prose has shown that a clerical error exists and that a Nunc Pro Tunc ludgement should be enter ed to correct said clerical errol to reflect the judgement pronounced, as iequired under Tex. R. App. P., Rule 23. 2. This is a ministerial duty.

Prayer.

Wherefore, premise considered the defendant prays the court to GRANT this, prose, motion for Nune Pro Tunc- order to show defendant to have the sentence of 20 years with 258 days time credit to commence on the 5“‘ day of July 2001. The court should also order the clerk to send a copy of the Nune Pro Tunc Judgement, to the records division of the Texas Department of Criminal Justice, the Parole Division, as well as a copy to the defendant

Re§_pectfully S ibmitted, " _ J//L ”/'l/ /¢_?/~r,h '3‘~ vii

4/ l , //f J;~///yzf/;r '“ 1/?@/%/,@¢%:'//7

l_, Brian Keith Melton, prose, being currently incarcerated at-the John B. Connally Unit ln Karnes County, Texas, do hereby swear that the foregoing motion to enter Judgement Nune Pro Tunc, is correct under the penalty of perjury.

signed this /5" day 011/347 e/ , 2010.

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Cause No. vz067r

State of Texas § In the 354th District Court Hunt County, Tx. Vs. § Brian K. Melton, Prose §

Motion to enter Nunc Pro Tunc order; Under Tx. R. App. P.; Rule 23.2 ( Clerical Error ) -

To the Honorable Judge of said court: Now comes, Brian Keith Melton, prose, defendant i.n'the above entitled and numbered cause and moves the court to enter the correct judgement of -20 years with 258 days time credit to commence on the 5th day of July 2001 , as the terms of the plea agreement reached with the state, and in support of such motion shows:

I.

Defendant was charged with Burglary of Habitation, Texas penal code-3002 with an offense date of _3-27-01_. The Defendant, Brian Keith Melton, defendants appointed attorney, Raymond Hopson, and the attorney for the state , Joel Littlefield reached a plea agreement of 20 years with 258 days time credit, Said time credit of 258 days was an element of the plea agreement This agreement was taken before the District Judge of the 354"‘ court; Richard Beacom on the 5th day of July. At that time the plea agreement by Judge R. Beacom to read that as part of the plea agreement reached between the attorney for the State of Texas, Mr. Littlefield and the defendant, Brian K. Melton punishment would be assessed at 20 years with 258 days time credit. No appeal was taken.

II.

Upon transfer to Texas Department of Criminal Justice, said defendant Was informed that due to both State and Federal law, that -the 258 days time credit could not be honored, even though it was an element of the plea agreement, because it would pre-date the offense date. Defendant then tried to contact his attorney, R. Hopson and received no response Defendant also wrote to the trial court and received no response At that time, defendant filed an ll. 07, writ of Habeas Corpus. On January 8, 2003, Convicting court entered finding of facts and conclusions of law. In which they stated the following: ’

1 of 3

l:) Yes, the defendant was sentenced to 20 years with 258 days'time credit as part of a plea agreement between the State of Texas and said defendant,

2:) Yes, the defendant is entitled to said 258 days time credit as'it- is an element of the plea agreement.

It was then stated that the 258 days time credit`was a clerical error, and that a judgement _ `Nunc Pro Tunc should be entered to change the defendants sentence. This has created a clerical error as the defendants holding sentence does not reflect terms of the plea agreement pronounced on the 5‘h day of July 2001. It is the defendants right under Tex. R. App. P. Rule 23.2 for written judgement to reflect judgement pronounced The trial court did not have proper authority to grant judgement Nunc Pro Tunc on January 8, 2003. Under Tex. R. App. P. Rule 23.2, as there was clearly no clerical error to be corrected The written judgement and judgement pronounced mirrored one another perfectly and both specifically addressed the time credit of 258 days.

III.

The trial court can now enter judgement Nunc Pro Tunc to correct the clerical error in the judgement addressed above. As required'under Tex. R. App. P., Rue 23.2,‘ to reflect judgement as pronounced on the 5th day of July 2001. A defendant is required to seek a correction under Tex. R. App. P. Rule 23.2 from trial court before seeking relief from a higher authority. Ex Parte Pena, 171 S.W. 3D 336; 337 ( Tex. Crim. Am). (2002). Ex Parte Ybarra, 149 S.W. 3D 147 (2004). Should the trial court fail to enter judgement Nunc Pro Tunc correcting clerical error, defendant would be left no choice but to seek relief from a higher authority.

- Conclusion.

The defendant, Brian Keith Melton, prose, has shown that a clerical error exists and- that a Nune Pro Tunc Judgement should be entered to correct said clerical error to reflect the judgement pronounced, as required under Tex. R. App. P., Rule 23.2. This is a ministerial duty.

Wherefore, premise considered the defendant prays the court to GRANT this, prose, motion for Nunc Pro Tunc- order to show defendant to have the sentence of 20 years with 258 days time credit to commence on the 5th day of July 2001. The court should also order the clerk to send a copy of the Nunc Pro Tunc Judgement, to the records division of the Texas Department of Criminal Justice, the Parole Division, as well as a copy to the defendant

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I, Brian Keith Melton, prose, being currently incarcerated at the John~B. Connally Unit In Karnes County, Texas, do hereby swear that the foregoing motion to enter Judgement Nunc Pro Tunc, is correct under the penalty of perjury.

Signed this /{ day of (76//7€ , 2010.

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