Myers, Charles

• Court: Court of Criminal Appeals of Texas
• Decided: January 23, 2008
• Docket: WR-68,402-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-68,402-02 AND WR-68,402-03

EX PARTE CHARLES MYERS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. D-1-DC-06-904096 IN THE 147TH DISTRICT COURT

FROM TRAVIS COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of burglary of habitation and unlawful interception of wire communication and sentenced to 10 years' probation on the burglary of habitation count and 5 years' confinement on the unlawful interception of wire communication count. The Third Court of Appeals dismissed Applicant's direct appeal. See Meyers v. State, No AP-03-06-00661-CR (Tex. App.- Austin, 2006, no pet.) (not designated for publication.)

In his -02 application, Applicant raises various claims challenging the merits of his convictions and resulting sentences. He also complains about the Texas Board of Pardons and Paroles has failed to release him on parole. The trial judge has entered findings of fact and conclusions based on the evidence in the habeas record, affidavits, and/or his personal recollection. The trial judge found that the claims regarding the burglary of habitation conviction were not proper for review in a writ of habeas corpus filed pursuant to Art. 11.07 of the Texas Code of Criminal Procedure because Applicant received a probated sentence which has not been revoked. The trial judge findings are supported by the record and, accordingly, those claims are dismissed. See Tex. Code crim. Proc. Art 11.07, §§ 1, 3(a)-(b). The trial considered Applicant's claims regarding his unlawful interception of wire communication conviction on their merits, found that they had no merit, and recommended denying relief. The trial judge's findings and conclusions are supported by the record. Accordingly, we deny relief on the basis of those findings.

In his -03 application, Applicant claims that he should be awarded time credit for the time he spent on bond under electronic monitoring because this time is equivalent to confinement. We find that Applicant's claim is akin to a pre-sentence jail time credit claim. The appropriate remedy in this situation is to require Applicant to present the issue to the trial court by way of a nunc pro tunc motion. If the trial court fails to respond, applicant is first required to seek relief in the Court of Appeals, by way of a petition for a writ of mandamus, unless there is a compelling reason not to do so. Ex parte Ybarra, 149 S.W.3d 147, 148-149 (Tex. Crim. App. 2004). Accordingly, this claim is dismissed.

It is so ordered on this the 23rd day of January, 2008.

Do not publish