Larry Whitmire v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 19, 2023
• Docket: 09-22-00288-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00288-CR __________________

LARRY WHITMIRE, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________

On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 23000 __________________________________________________________________

MEMORANDUM OPINION

Larry Whitmire appeals the trial court’s denial of his request to modify the

judgment finding him guilty and imposing his sentence. Whitmire claims he is

entitled to credit for additional time served. Finding no error, we affirm.

Background

In Trial Cause No. 23000, Whitmire waived a jury trial and after a bench trial

the trial court found Whitmire guilty of the offense of evading arrest with a motor

vehicle as alleged in the indictment. Whitmire elected for the trial court to assess

1 punishment. On July 11, 2022, the trial court announced Whitmire’s sentence at five

years of imprisonment, with credit for time served. The written judgment of

conviction filed the same day credited Whitmire with five days of time served.

On August 2, 2022, Whitmire filed what he styled as a “Motion for Nunc Pro

Tunc Correction of Judgment[,]” requesting the trial court give him credit in Cause

No. 23000 for 413 days (from December 16, 2015 to January 31, 2017) that he spent

in jail. Whitmire asserted in his motion that Exhibits B and C attached to the motion

evidenced that he was sent to TDCJ on December 16, 2015, and on January 31, 2017,

he was released on parole. On August 4, 2022, Whitmire filed a motion for new trial,

which was overruled by operation of law.

On August 5, 2022, the State filed its Response to Defendant’s Motion for

Nunc Pro Tunc Correction of Judgment, arguing that Whitmire was arrested in this

case on March 14, 2014 and released on March 19, 2014 (4 days credit), he first

appeared in court on the offense for which he was indicted on November 20, 2019,

after numerous re-settings Whitmire failed to appear for an August 27, 2021 hearing,

and he was arrested again for the offense on November 16, 2021 and released the

same day (giving him 1 day credit). According to the State, Whitmire was

misleading the court and that all time periods of incarceration for which he was

seeking credit were for another case – Case No. 19980 for the offense of Driving

While Intoxicated – as evidenced by Exhibit B to Whitmire’s motion.

2 Jurisdiction

We first address the State’s argument on appeal that this Court lacks

jurisdiction to consider Whitmire’s appellate issue because the denial of a motion

for nunc pro tunc judgment is not an appealable order. Looking to the substance of

Whitmire’s “Motion for Nunc Pro Tunc Correction of Judgment[,]” rather than its

title, we construe his motion as a motion to modify the judgment. See Ex parte

Caldwell, 58 S.W.3d 127, 130 (Tex. Crim. App. 2000), superseded by statute on

other grounds as stated in Druery v. State, 412 S.W.3d 523, 534 (Tex. Crim. App.

2013) (courts look to the substance of a pleading or motion, not its title, to determine

its effect); see also Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (courts look

to the substance of a pleading rather than its caption or form to determine its nature).

The trial court imposed Whitmire’s sentence in open court on July 11, 2022. At that

point in time, to be timely, Whitmire had thirty days to file his notice of appeal and

thirty days to file a motion for new trial. See Tex. R. App. P. 26.2(a). On August 2,

2022, within thirty days of the imposition of sentence, Whitmire filed the motion to

modify the judgment of conviction which credited five days of time served, and on

August 4, 2022, also within thirty days of the imposition of sentence, he filed his

motion for new trial. The filing of Whitmire’s motion for new trial extended the

filing deadline for Whitmire’s notice of appeal to ninety days from the date his

sentence was imposed. See id. The trial court had plenary power on August 16, 2022,

3 when it denied Whitmire’s “Motion for Nunc Pro Tunc Correcting of Judgment[.]”

See State v. Aguilera, 165 S.W.3d 695, 697-98 (Tex. Crim. App. 2005) (A trial

court’s plenary power expires thirty days after the sentence or an appealable order is

signed, unless a party files a post-judgment motion for new trial.). Whitmire’s appeal

was filed on August 25, 2022, and it was timely. See Tex. R. App. P. 26.2(a).

Accordingly, we have jurisdiction over the appeal. Cf. Abbott v. State, 271 S.W.3d

694, 695-96, n.6 (Tex. Crim. App. 2008) (defendant filed a motion to correct a

judgment to reflect time credit, but his notice of appeal was from the order denying

his time-credit motion and not from the judgment reflecting no time credit, and the

notice of appeal that was filed was not timely because it was not filed within thirty

days of the date sentence was imposed).

Trial Court’s Denial of the Motion

Next, we address Whitmire’s issue on appeal that the trial court abused its

discretion in denying Whitmire’s motion to modify the judgment to credit him the

proper amount of time served. In all criminal cases, the judge of the court in which

the defendant is convicted “shall give” the defendant credit on his sentence for the

time he spent “in jail for the case, [] excluding confinement served as a condition of

community supervision,” from the time of arrest and confinement until sentenced by

the trial court. Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1); see also Ex parte

Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). “In the event the court fails

4 to award such credit at the time the sentence is imposed, the trial court has the

authority to correct the judgment to reflect the appropriate time credit by nunc pro

tunc order and should do so.” Ex parte Ybarra, 149 S.W.3d at 148 (citing Tex. R.

App. P. 23.2).

On appeal, Whitmire argues he was entitled to 570 days of credit for time

served. According to Whitmire, at the hearing on Whitmire’s motion, he argued that

although he was out on bond on this charge, he was put in jail on another charge but

that the warrant for his arrest in this case was executed at the same time he was

incarcerated on the other charge. Exhibits B and C attached to Whitmire’s motion

show that Whitmire’s time served from December 16, 2015 through January 31,

2017 was in Cause No. 19980 for the offense of driving while intoxicated. Based on

the record before us, we conclude the time served from December 16, 2015 to

January 31, 2017 was time served for another case. Accordingly, Whitmire is not

entitled to receive credit in Cause No. 23000 for the time he spent in jail on the other

case. See Ex parte Crossley, 586 S.W.2d 545, 546 (Tex. Crim. App. 1979); Ex parte

Alvarez, 519 S.W.2d 440, 443 (Tex. Crim. App. 1975); Collins v. State, 318 S.W.3d

471, 473 (Tex. App.—Amarillo 2010, pet. ref’d). There is nothing to show that

Whitmire was being held “in jail for the case”—Cause No. 23000—for any more

than the five days credited in the judgment. We affirm the trial court’s order denying

Whitmire’s motion.

5 AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on April 4, 2023 Opinion Delivered April 19, 2023 Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.