                          NUMBER 13-15-00311-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


NESTOR ABARCA-SANCHEZ,                                                 Appellant,

                                          v.

THE STATE OF TEXAS,                                                    Appellee.


                    On appeal from the 21st District Court
                         of Bastrop County, Texas.


                          MEMORANDUM OPINION

              Before Justices Rodriguez, Garza, and Longoria
               Memorandum Opinion by Justice Rodriguez
      The trial court adjudicated appellant Nestor Abarca-Sanchez guilty of indecency

with a child and sentenced him to twelve years in the Texas Department of Criminal

Justice—Institutional Division.   See TEX. PENAL CODE ANN. § 21.11 (West, Westlaw
through 2015 R.S.). By one issue, appellant contends that the trial court erred when it

failed to award him the proper amount of jail credit. We affirm as modified.1

                                             I. BACKGROUND

        On July 20, 2010, a Bastrop County grand jury indicted appellant for the

second-degree offense of indecency with a child, committed on or about March 1, 2010.

On October 22, 2010, appellant entered a plea of guilty, and the trial court placed him on

deferred adjudication community supervision.                 The United States government then

deported appellant.

        On March 8, 2012, appellant was detained while attempting re-entry into the United

States. The State filed an amended motion to adjudicate, and on April 6, 2015 at a

hearing on the State’s motion, the trial court accepted appellant’s pleas of “true” to the

alleged violations of the terms of his court-ordered community supervision. At a May 18,

2015 hearing, the trial court revoked appellant’s community supervision, found him guilty,

and sentenced him to twelve years’ confinement. Without indicating a specific number

of days, the trial court orally ordered “credit for back time.” The judgment adjudicating

guilt identified the periods of incarceration for which time was to be credited—a total of

1,331 days. However, the judgment included a special finding or order that appellant

was entitled to “1,232 days credit.” This appeal followed.

                                       II.     JAIL-TIME CREDIT

        By a single issue, appellant claims that the trial court erred when it failed to award



        1 This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through
2015 R.S.).
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him the correct amount of jail-time credit. He also argues that this error involves more

than an alleged miscalculation or clerical error and that it is impossible to determine the

correct number of days credit to which he is entitled. We agree that the trial court

credited appellant’s sentence with an incorrect amount of jail time, but disagree that it is

impossible to determine the correct amount.

       The trial court used a standardized felony judgment form as required by section 4

of article 42.01 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 42.01, § 4 (West, Westlaw through 2015 R.S.). On this form, the amount of

time credited is described in terms of the periods (calendar dates) of incarceration and

not by the sum of those days. The calendar dates for time credited on appellant’s

sentence are May 10, 2010 to October 22, 2010 and March 8, 2012 to May 18, 2015.

Appellant does not challenge these dates.

       On May 18, 2015, the trial court adjudicated appellant and sentenced him. After

finding appellant guilty, the trial court ordered that appellant “be sentenced to twelve years

in the Institutional Division of the Texas Department of Criminal Justice” and that he

“receive all the credit that [he had] built up.” Regarding the time to be credited, the trial

court addressed the prosecutor stating, “[I]t sounds like you have that calculated. If you’ll

go over that with [the defense counsel] to see if there’s any questions about it.” The trial

court then directed the following to appellant:

       But while you’re in custody, whether it’s the custody of the Bastrop County
       Sheriff’s Office or the federal custody, you receive credit for that. You do
       not receive credit for the time that you were not in custody while in Mexico.
       But you do receive credit for the timeframe that I think everybody is in
       agreement of the timeframe. . . . So it’s the order of the [c]ourt you’re
       sentenced to twelve years with credit for back time.

                                              3
        The trial court orally pronounced only that appellant would receive credit for jail

time served. Because the court made no oral pronouncements regarding the amount of

jail time appellant had served, there could be no conflicting oral pronouncements that

would control the written judgment in this case as to jail-time credit.2 See Taylor v. State,

131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (explaining that the judgment, including the

sentence assessed, is just the written declaration and embodiment of the oral

pronouncement, and when there is a conflict between the oral pronouncement and the

written judgment, the oral pronouncement controls); see also Ferrow v. State, No. 03-08-

00326-CR, 2008 WL 5423210, at *1 (Tex. App.—Austin Dec. 31, 2008, no pet.) (mem.

op., not designated for publication) (providing that the written judgment should be

modified to conform to the oral pronouncement of the amount of jail time to be credited

on the sentence). So our review is of the trial court’s written judgment.

        The rules of appellate procedure provide that an appellate court may modify the

trial court’s judgment and affirm it as modified.                TEX. R. APP. P. 43.2(b). When an

appellate court has the necessary data and evidence before it for modification, the court

may modify the judgment and sentence on appeal. Banks v. State, 708 S.W.2d 460,

461 (Tex. Crim. App. 1986) (en banc).

        In this case, with no conflicting oral pronouncement, the trial court’s judgment

adjudicating appellant of indecency with a child by contact recites that appellant’s twelve-


        2   At the April 6, 2015 hearing at which the trial court accepted appellant’s plea, when asked by
defense counsel if he could “put in the number of days that we show his credit time [in his plea papers]?”,
the trial court responded, “1,315,” and appellant and defense counsel agreed with that figure. Although
the trial court recognized 1,315 days of jail credit at this hearing, we cannot conclude that the trial court’s
response was an oral pronouncement of the amount of appellant’s jail-time credit that would control over
the written judgment. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).
                                                      4
year sentence should be credited with his incarceration periods from May 10, 2010 to

October 22, 2010 (165 days) and from March 8, 2012 to May 18, 2015 (1,166 days).

Based on this necessary data, the time credited should have been 1,331 days. See id.

However, the judgment sets out a credit of 1,232 days.                       Accordingly, we sustain

appellant’s sole issue, and we modify the judgment to reflect 1,331 days credit. 3 See

TEX. R. APP. P. 43.2(b).

                                          III.    CONCLUSION

        We affirm the judgment as modified.



                                                                          NELDA V. RODRIGUEZ
                                                                          Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 24th
day of September, 2015.




        3 Appellant also challenges the voluntariness of his plea, asserting that he based his pleas of true
on 1,315 days of credit as discussed at the April 6, 2015 hearing. But appellant did not complain of the
voluntariness of his pleas to the trial court. The Texas Court of Criminal Appeals has held that a complaint
about the voluntariness of a plea is a “non-structural error” that must be preserved in accordance with rule
33.1 of the Texas Rules of Appellate Procedure. Mendez v. State, 138 S.W.3d 334, 338–39 (Tex. Crim.
App. 2004) (en banc); see TEX. R. APP. P. 33.1. We conclude that appellant did not preserve for our review
his complaint about the voluntariness of his pleas of true.

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