             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,437



                      Ex parte CLAUS DETREF THILES, Appellant

                                                  v.

                                   THE STATE OF TEXAS

               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                          FROM DALLAS COUNTY


       K ELLER, P.J., filed a concurring opinion.


       As the Court says, there are two lines of cases that address time credit for out-of-custody

defendants. An erroneously-released defendant is generally entitled to credit for time out of custody.

But a defendant who is out on bond pending appeal is not entitled to credit for time out of custody

after the conviction is affirmed. Applicant’s situation is of the second type, but the Court grants

relief under a so-called “principle of reasonableness” underlying the first type of case.

       I would grant relief, but I would do so without reference to a nebulous “principle of

reasonableness.” The difference between applicant’s case and other appeal-bond cases is that
                                                                     THILES CONCURRENCE - 2

applicant won in the court of appeals. In all of our past cases in which a defendant was out on bond

pending appeal and his conviction was later affirmed, the defendant had not won at any level in the

judicial system.1 In each of those four cases, the defendant stood convicted at the time he was

released, and his release was just a temporary reprieve unless he could convince a higher court of

the merits of his claims. We have held that, under those circumstances, the defendant had a duty to

surrender himself to the authorities when mandate issued.2 Although in three of the four cases the

defendant was aware that mandate had issued, the court errs to suggest that the holdings in those



        1
          See Dunn, 976 S.W.2d 208, 210 (Tex. Crim. App. 1998) (defendant appealed conviction,
court of appeals affirmed, petitions for discretionary review were refused); Ex parte Francis, 510
S.W.2d 345, 345 (Tex. Crim. App. 1974) (defendant appealed conviction, Court of Criminal Appeals
affirmed); Ex parte Rayburn, 146 Tex. Crim. 204, 204, 172 S.W.2d 505, 505 (1943) (same); Ex
parte Underwood, 94 Tex. Crim. 157, 157-58, 248 S.W. 551, 551 (1923) (same).
        2
          See Dunn, 976 S.W.2d at 211 (“Applicant was still bound by the terms of the appeal bond,
which, like those in Francis, required his appearance ‘before said Court from day to day and from
term to term of same, and not depart therefrom without leave of said Court, in order to abide the
judgment of the Court of Appeals of the State of Texas.’ Based on this language, like that in
Francis, applicant had a duty to appear whenever the mandate was received and his presence was
thus required. . . . Thus, once the mandate issued and applicant did not appear in the trial court, he
violated the terms of his appeal bond.”); Francis, 510 S.W.2d at 346 (quoting Ex parte Salisbury,
98 Tex. Crim. 341, 342-43, 265 S.W. 696, 697 (Tex. Crim. App. 1924): “A duty likewise rested
upon the appellant, and the sureties on his recognizance. He might have paid the fine or surrendered
himself; so might the sureties. None of the officers of the state had the right to affirmatively release
the appellant or waive the state’s right to the satisfaction of the judgment of the court. They having
no right to do so by affirmative action, it is our opinion that their negligence in performing the duties
which the law imposed upon them would not operate to discharge the appellant from the necessity
of suffering the penalty imposed upon him by the judgment of conviction.”); Rayburn, 146 Tex.
Crim. at 205, 172 S.W.2d at 506 (“When appellant entered into the appeal bond, he bound himself
to appear before the District Court of Palo Pinto County, to abide the judgment of this court in his
case. He had not, prior to his arrest, complied with that condition. . . . If appellant has been injured
by reason of the delay in serving the sentence the law imposed upon him, such arises by reason of
his own acts and conduct in failing to do that which he bound himself to do in order to be at liberty
during the appeal of his case.”); Underwood, 94 Tex. Crim. at 159, 248 S.W. at 551 (“The appeal
bond which the appellant executed required that he appear before the court in which the judgment
was rendered and abide by the judgment of the Court of Criminal Appeals in this case.”).
                                                                    THILES CONCURRENCE - 3

cases hinged on such awareness.3

       In this case, applicant prevailed at the court of appeals. At the time he was released from

custody, he had already succeeded in his attempt to procure relief and he no longer stood convicted.

I would hold that, in these circumstances, he was relieved from the duty to enquire further into the

outcome of the appellate proceedings.

       I concur in the Court’s judgment.

Filed: March 9, 2011
Publish




       3
           See previous footnote. The Court also errs to suggest that the cases hinge on whether the
defendant “ever became aware that . . . a capias issued for his arrest.” Court’s op. at 6. In each of
the prior cases, the defendant was either out of custody for a long period of time before capias issued,
Dunn, 976 S.W.2d at 209-10 (capias did not issue for six years after mandate had issued), or it did
not matter to this Court whether capias had issued in a timely fashion (or at all). Francis, 510
S.W.2d at 345(“We are unable to determine from the record . . . whether the clerk of the convicting
court forwarded such mandate to the sheriff of Lubbock County or not, nor do we deem it necessary
to so determine. Regardless of which official was derelict in his duty, the fact remains that the
appellant was not arrested on the mandate of this Court, nor was he carried to the Department of
Corrections as the law requires.”); Rayburn, 146 Tex. Crim. at 204, 172 S.W.2d at 505 (“There is,
however, no direct evidence that the original mandate was received and filed in the District Court
of Palo Pinto County, nor that a commitment was issued thereon.”). See also Underwood, passim
(no reference to whether a capias issued).
