Shirley Lee Van v. State

• Court: Court of Appeals of Texas
• Decided: March 7, 1991
• Docket: 10-90-00220-CR
• Status: Published

Opinion

Van-SL v. State

NO. 10-90-220-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          SHIRLEY LEE VAN,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

From 18th Judicial District Court

Johnson County, Texas

Trial Court # 26210-A

O P I N I O N

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          Appellant Shirley Lee Van perfected this appeal from the denial of the relief she requested in her application for a writ of habeas corpus filed in the 18th District Court of Johnson County. The transcript filed in this appeal reflects that Appellant was convicted on a not-guilty plea and sentenced by a jury on November 2, 1989, to 365 days in the Johnson County jail and a $2,000 fine for the misdemeanor offense of criminally negligent homicide. See Tex. Penal Code Ann. § 19.07(b) (Vernon 1989). This court affirmed her conviction on May 17, 1990, and issued its mandate on July 6.

          Appellant, in her application for a writ of habeas corpus filed under article 11.09 of the Texas Code of Criminal Procedure, alleges that her confinement since July 11 is unlawful due to the denial of jail-time credit and because she has been told by Johnson County sheriff's deputies that she will have to serve all 365 days of her sentence. Appellant asserts that the denial of jail-time credit violates the standard practices and policies of the Johnson County sheriff's department and that the Sheriff has discriminated against her by denying her the right to be named a trusty, thus earning jail-time credit and the right to an early release.

          On November 21, the trial court held a hearing on the petition for a writ, but denied relief by an order signed on November 27. In its order, the court stated that it found no discrimination. The court further found that the Sheriff could properly consider the following factors in making trusty assignments: (1) the type of offense; (2) the type of trial--jury or non-jury; (3) the type of the inmate's behavior; and (4) the security of the individual inmate. The court also expressly ordered that Appellant would be allowed to re-apply for trusty status within fourteen days following the date of the order and that, if trusty status was denied, the Sheriff must file within twenty-four hours a response setting forth the basis for the denial. Finally, the court ordered the sheriff's department to submit a report to the court detailing the department's trusty policies and to review its trusty plan to insure equal treatment of male and female prisoners.

          Although this court has appellate habeas corpus jurisdiction in this instance under Rule 44 of the Texas Rules of Appellate Procedure (formerly Article 44.34 of the Texas Code of Criminal Procedure), we nevertheless are unable to review the trial court's denial of relief and the evidentiary support for its fact-findings without a statement of facts from the November 21 hearing. See Tex. Crim. Proc. Ann. § 11.09 (Vernon 1977); Tex. R. App. P. 44; Ex parte Jordan, 659 S.W.2d 827, 828 (Tex. Crim. App. 1983). In the absence of a statement facts, it must be presumed that the court's findings were supported by legally and factually sufficient evidence. See Beck v. State, 583 S.W.2d 338, 348 (Tex. Crim. App. 1979). The judgment of the trial court is affirmed.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Affirmed

Opinion delivered and filed March 7, 1991

Do not publish

160;                                                 Justice

Dissenting opinion delivered and filed March 14, 2001