in Re Brian Keith Melton

• Court: Court of Appeals of Texas
• Decided: July 8, 2016
• Docket: 06-16-00125-CR
• Status: Published

Opinion

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In The Court of Appeals Sixth Appellate District of Texas at Texarkana

-No. 06 10 00212 OR

IN RE: BRIAN KEITH MELTON

Original Mandamus Proceeding

Before Morriss, C.J:, Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss r^^—^_^^Z1j^^^?^--^5^_slstkyA-A^

MEMORANDUM OPINION

Brian Keith Melton's original 2001 plea agreement, entered in two cases, called for giving

him credit for 258 days against his sentences. jPhe:problem with'that-agreement'was that such X,

^^editfexc'eededa^ As a•

result, there have been various efforts initiated by Melton seeking to solve the problem, including

the pro se petition for writ of mandamus now before this Court in these two cases.

As part of his corrective efforts, Melton filed motions for judgment nunc pro tunc with the

trial court. Melton claims the trial court denied the motions and, as a result, now petitions this

Court for mandamus relief.2 Because there isnothing in the record before us establishing that the

trial court has ruled on the motions, we deny Melton's requested relief.3 A trial court shall give a defendant credit toward the defendant's sentence for time he or

she spent in jail from the time of his or her arrest and confinement until the defendant is sentenced

by the trial court. Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1), (2) (Vernon Supp. 2010).

The trial court cannot, however, give credit for noncustody time. Ex parte Hayward, 711 S.W.2d

—Melton's plea^agreenient was^entered July 5, 2001, in-trial court cause numbers 20,57uand 20,572,,in eacH.ofwhich' £tie£,was charged with"l3urgla"ry;of.a.habitation, based.on offenses.committed January 2^4,;_2001',1nd,,March 27^-2001, ^respectjyely.. Under'the'plea agreement^ Melton would bVsentenced to" twenty years^incarcefatipri;in"eacH case.and "receive crejJitjT^ credit against his sentences,.However^w^Tnot honored by'the-Texas 'Departmentqf^CriminaU °^^^^^C3c>/J/!t Itwilj} A/j?i£. d. 2Melton is correctinthat, if the trial court in fact did or does deny his motion forjudgment nuncprotunc, mandamus is the appropriate next step. Ex parte Florence, 319 S.W.3d 695 {Tex. Crim. App. 2010); Ex parte Ybarra, 149 S.W.3d 147, 14S-49 (Tex. Crim. App. 2004).

3Melton was convicted in trial court cause numbers 20,570 and 20,572; he filed a distinct motion forjudgment nunc pro tunc in each of the cases, but has filed a single petition for writ of mandamus. The issues and arguments in the two trial causes are identical, so the single petition for mandamus relief is appropriate. ./ 652, 656 (Tex. Crim. App. 1986); see also Ex parte Harvey, 846 S.W.2d 328, 329 (Tex. Crim.

App. 1993) (jail time credited by trial court may not exceed time between date of commission of "* ~* m i • •*•

• offense,and imposition of sentence). Taking into account the offense and sentence dates from

Melton's judgments, if it is assumed,he was arrested immediately, on the dates of the offenses, he

could have served only 162 days in jail for the January 24,2001, offense and only 100 days for the

March 27, 2001, offense. Obviously, this does not account for any time during which Melton was

not in custody so that he could commit the March 27 offense, but that calculation is not necessary

\ for our purposes. i' According to Melton's petition, prison officials would not give him credit for the 258 days

as ordered in the trial court's judgments because that number of credited days would pre-date both

offense dates. Melton filed an application for habeas corpus relief, and the Texas Court of

Criminal Appealsfordered the trial court to conduct a hearing)and make findings of fact and conclusions of law. Ex parte Melton, Nos. 44,431-02, 44,431-03 (Tex. Crim. App. Aug. 14,

- 2002) (not designated for publication). The^trial;court4s?es1jitm •>•;: *

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days,';^1hat*Melt^ and that nunc pro tunc

'judgments should be entered to effectuatejhe plea agreement and ensure Melton received the

The trial court issued one set of findings and conclusions, bearing the two cause numbers ofMelton's two cases. The trial court did not distinguish or take into consideration the separate March offense date for Melton's second case.

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number of days' credit promised him in the plea agreement. The trial court then entered a S\A

judgment nunc pro tunc for each of Melton's cases.twhere the trial court changed Melton's ^

, \ sentences to nineteen years and 200 days, and again credited Melton with 258 days servedJ The i -^. Texas Court of Criminal Appeals denied Melton's applications for habeas relief. A*^ In June 2010, Melton filed motions for judgments nunc pro tunc with the trial court, in ^'

which he asked the trial court to order compliance with the plea agreement and sentence of July 5, yi

2001. In other words, Melton asked the trial court to correct the judgments nunc pro tunc entered 'J \

in January 2003 sothat the judgments would track theoriginal plea agreement that was reflected in f ^ *"* the original July 5, 2001, judgments.

Melton has attached several documents to his petition to this Court, including the original; ^ vN judgments; the trial court's findings and conclusions; the trial court's judgments nunc pro tunc,

entered in January 2003; and Meltpn^s motions for judgment nunc pro tunc, fifed in June 2010. _ kWe have not, however, been provided with any order from the trial court disposing of Melton's lb June 2010 motions for nunc pro tunc relief. Melton states in his petition that the district clerk has

told Melton the motions were denied, but we have no evidence of that before us. T Q Tie

•*—$• yRegardless of whether these acts by the trial court were erroneous, see Ex parte Dopps, 723 S.W.2d 669, 671 (Tex. Crim. App. 1986); Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim. App. 1984), those judgments are not before usJ 6Meltonalso complains that fines were assessed inthejudgments, in spite of theplea agreement thatno fine was to be assessed in either case. We point out the imposition of $249.25 on each case represents court costs, not fines.

A

_* _*a,..*? UNIT COPY T.D.C.J.-INSTITUTIONAL DIVISION 'Q#5£2.0J521(&-995 IABS2400 INMATE TIMESLIPS

NAME: MELTON,BRIAN KEITH TDC NO: 01052738 UNIT: EA RACE: W

*PREV PRJ-REL-DATE: *PRES PRJ-REL-DATE: MAX-EXP-DATE 03 27 2021 *INMATE STATUS: MAX TERM: •2;0ffi0!blfc0,p;

FLAT TIME CREDITED: 15 02 30 ,&A-|jGfeBEOI^DAVTLg3Wq!JlOBlK?7jfiO;l. GOOD TIME CREDITED: 5 06 23 TDC RECEIVE DATE: 08 16 01 BONUS TIME CREDITED: 0 00 00 GOOD TIME LOST: 940 WORK TIME CREDITED: 0 06 13 WORK TIME LOST: 0 *TOTAL TIME CREDITED: 21 04 06

*STATUS EFFECT DATE: 04 22 14 JAIL GOOD TIME RECEIVED: YES PAROLE DATA: SUBMITTED FOR BOARD REVIEW

^MONTHLY ABSENCE CALCULATION* 31.0 ABSENCES FOR 05/16

ANY ERRORS IN THE NUMBER OF DAYS OF UNEXCUSED ABSENCES MUST BE REPORTED TO THE ABSENTEE TRACKING COORDINATOR ON YOUR UNIT NO LATER THAN SIX MONTHS FOLLOWING THE REPORTED MONTH. FAILURE TO REPORT ERRORS MEANS AGREEMENT WITH THE REPORTED ABSENCES.