
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-03-00090-CR


Loncelle Holloway, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. 2020964, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



O P I N I O N

A jury found appellant Loncelle Holloway guilty of delivering less than one gram of
cocaine.  See Tex. Health & Safety Code Ann. § 481.112(a), b) (West Supp. 2003).  The court
assessed punishment at fifteen months in a state jail.  In his only point of error, appellant contends
he was denied equal protection of the law because the court did not give him credit for the time he
spent in county jail following his arrest.  We overrule this contention and affirm the conviction.
In state jail felony cases, the trial court has discretion whether to grant the defendant
credit against his sentence for any jail time served between his arrest and sentencing.  Tex. Code
Crim. Proc. Ann. art. 42.12, § 15(h)(2) (West Supp. 2003).  There is a limitation on this discretion,
however.  If the defendant is assessed the maximum sentence, and if the defendant was confined
following his arrest because he was unable to make bail due to indigence, he must be given credit
for his presentence jail time.  Ex parte Bates, 978 S.W.2d 575, 577 (Tex. Crim. App. 1998).  To deny
time credit in such a situation would cause the defendant to suffer incarceration beyond the
maximum punishment provided for the offense because of his indigence, and thus deny him equal
protection of the laws.  Ex parte Harris, 946 S.W.2d 79, 80 (Tex. Crim. App. 1997); see also Ex
parte Chamberlain, 586 S.W.2d 547, 547-48 (Tex. Crim. App. 1979); Caraway v. State, 550 S.W.2d
699, 704-05 (Tex. Crim. App. 1977).
The State argues that this issue is not appropriate for appeal, but should instead be
raised in a post-conviction habeas corpus proceeding.  It is true that this issue has most often been
raised in habeas corpus proceedings.  But in Caraway, the court of criminal appeals granted the
defendant relief in a direct appeal.  550 S.W.2d at 705.  We believe that we should do the same if
the record is adequate to decide the constitutional claim. (1)
A state jail felony is punishable by confinement in a state jail for a maximum term
of two years.  Tex. Pen. Code Ann. § 12.35(a) (West 2003).  Appellant was arrested on March 15,
2002, and his bail was set at $3000.  Two days later, an attorney was appointed to represent him. 
See Tex. Code Crim. Proc. Ann. art. 26.04 (West Supp. 2003) (procedure for appointing counsel for
indigent defendants).  No bail bond is in the clerk's record.  We will assume appellant remained in
county jail from the day of his arrest until the day he was sentenced in open court, December 9, 2002,
a period of approximately eight months and three weeks.  Appellant's fifteen-month sentence is nine
months less than the maximum applicable to the offense.  Thus, appellant's indigence will not cause
him to be incarcerated for more than the two-year maximum term, and the district court was not
required to give him credit for his presentence jail time.  Bates, 978 S.W.2d at 577.
Appellant asks this Court to adopt the holding in Johnson v. Prast, 548 F. 2d 699 (7th
Cir. 1977), a federal habeas corpus proceeding attacking a state sentence on equal protection
grounds.  That court concluded that it violates equal protection for an indigent defendant to be
incarcerated for an offense longer than he would have been had he not been indigent, even if the total
time of incarceration does not exceed the maximum provided for the offense.  Id. at 702.  The court
held that in every case, the sentencing court must take into consideration any presentence
incarceration resulting from the defendant's inability to post bond.  Id.
Even if we were to adopt this holding, it would not benefit appellant because the
record before us is silent as to whether the trial court considered his presentence incarceration in
assessing punishment.  Insofar as the record reflects, the court may have considered appellant's
offense to be "worth" two years in state jail and imposed the fifteen-month sentence to allow for his
presentence incarceration.
Appellant argues, citing Johnson, that we should presume that the trial court did not
consider his presentence jail time in the absence of evidence to the contrary.  What Johnson actually
held, however, was that the burden of proof in the habeas corpus proceeding was on the State:
"Unless the state proves in the habeas-corpus action that the judge, in fixing the sentence, gave
consideration in the sense stated above to the time served before sentencing, the prisoner will be
entitled to credit."  Id. at 703.  This holding has no application in this direct appeal, in which neither
appellant nor the State has had any opportunity to adduce evidence on the issue appellant seeks to
raise.  In this respect, we agree with the State that appellant should advance his contentions in a
habeas corpus proceeding in which a full record may be developed.  We will not presume error on
appeal when there is a viable theory that supports the trial court's action.  See State v. Ross, 32
S.W.3d 853, 858 (Tex. Crim. App. 2000).
In summary, no equal protection violation is shown by the record before us because
appellant's total term of incarceration would not exceed the maximum allowable punishment even
if his presentence jail time were added to the sentence imposed by the court.  The record is not
adequate to address appellant's additional arguments.
The point of error is overruled, and the judgment of conviction is affirmed.


  
				Jan P. Patterson, Justice
Before Justices Kidd, B. A. Smith and Patterson
Affirmed
Filed:   August 29, 2003
Publish
1.        Appellant did not object when the court announced that it was not giving him jail time credit,
nor did he file a motion for new trial raising this issue.  Although the State argues that the issue
should be raised by habeas corpus, it does not argue that the alleged error was not preserved for
appeal.
