in Re Richard Franklin

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00082-CR

IN RE RICHARD FRANKLIN

Original Proceeding

MEMORANDUM OPINION

Richard Franklin seeks by mandamus to compel the trial court to withdraw its

denial of Franklin’s request, via a motion for judgment nunc pro tunc, for pre-sentence

jail credit. The petition is denied.

At the outset, we note that Franklin served the wrong trial court judge with his

petition. See TEX. R. APP. P. 9.5; 52.2. Franklin served the former judge of the 87th

District Court, H.D. Black. Patrick Simmons is now the judge of the 87th District Court

and was the judge who signed the order denying Franklin’s request. This procedural

deficiency is not, however, the reason that we are denying the petition. Traditionally,

we would notify Franklin of the deficiency with service of the petition and allow him

the opportunity to correct the problem. However, because we deny the petition on the

merits, we use Rule 2 to suspend the operation of the service requirements and proceed

to a disposition in this proceeding. See TEX. R. APP. P. 2. Franklin was arrested on October 8, 2004 for the manufacture or delivery of

methamphetamine in the amount of 4 grams or more but less than 200 grams. He was

released on bond the next day. While out on bond, he was arrested on January 12, 2005

for the manufacture or delivery of methamphetamine in the amount of one gram or

more, but less than four grams. This time, he remained in jail until he was sentenced on

both offenses on March 7, 2006. According to the trial court’s Order on Nunc Pro Tunc,

there was no surrender of surety for the first offense.

Franklin received time credit for the first offense for the one day he was in jail

before he was released on bond. In his motion for judgment nunc pro tunc, he

requested additional credit on the first offense for the time spent in jail prior to

sentencing on the second offense. The trial court denied this request. We agree with

the trial court.

The Code of Criminal Procedure provides that “[i]n 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, . . .

from the time of his arrest and confinement until his sentence by the trial court; . . .”

TEX. CODE CRIM. PROC. ANN. art. 42.03, sec. 2(a)(1) (Vernon Supp. 2008) (emphasis

added). The Court of Criminal Appeals has interpreted similar language, “in said

cause,” from the previous version of 42.03 to mean that jail credit must be awarded in

each case that was an independent and sufficient cause of detention. Ex parte Crossley, 586

S.W.2d 545, 546 (Tex. Crim. App. 1979) (emphasis added); see also Ex parte Alvarez, 519

S.W.2d 440, 442 (Tex. Crim. App. 1975). In Crossley, the appellant had been given a

personal bond on a motion to revoke months before he was indicted for an unrelated

In re Franklin Page 2 burglary. There was no showing that the bond was revoked. The Court of Criminal

Appeals concluded that “Presumably, if the burglary indictment had been dismissed or

the appellant acquitted, the personal bond would have been still in effect and the

applicant would have been released on it. There is nothing to show that the motion to

revoke ‘would . . . have prevented petitioner's lawful release from custody by the . . .

custodian upon an acquittal in the (burglary) case.’ Ex parte Alvarez, 519 S.W.2d 440, 443

(Tex.Cr.App.1975).” Id.

The same holds true in this proceeding. There is nothing to show that had the

second drug offense been dismissed or Franklin acquitted, the bond on the first offense

would not have been effective and that Franklin would not have been released on it.

Further, we believe that even though the language of the statute has changed

somewhat, that the phrase “for the case” still means that jail credit must be awarded in

each case that was an independent and sufficient cause of detention. Not having anything in

the record in this proceeding to show that Franklin was being held on the first offense,

we cannot say that the trial court abused its discretion in denying Franklin’s motion for

judgment nunc pro tunc for extra pre-sentence jail credit.

Accordingly, Franklin’s petition is denied.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Petition denied Opinion delivered and filed April 29, 2009 Do not publish [OT06]

In re Franklin Page 3