                                                                        PD-0059-15
                                                       COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                    Transmitted 2/25/2015 12:57:35 AM
                                                       Accepted 2/26/2015 4:18:44 PM
                                                                         ABEL ACOSTA
       COURT OF CRIMINAL APPEALS                                                 CLERK



                          PD-0059-15
                          PD-0060-15

          Matthew James Ayers, Appellant,
                          v.
              State of Texas, Appellee.

                   On Discretionary Review from
               No. 05-13-01068-CR & 05-13-01069-CR
                    Fifth Court of Appeals, Dallas

            On Appeal from No. F03-01252 & F03-01253
            Criminal District Court No. 4, Dallas County

         Petition for Discretionary Review

Michael Mowla
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636                           February 26, 2015
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Appellant




              ORAL ARGUMENT NOT REQUESTED
I. Identity of Parties, Counsel, and Judges

Mathew James Ayers, Appellant

Michael Mowla, attorney for Appellant on appeal and on discretionary
review, 445 E. FM 1382 #3-718, Cedar Hill, Texas 75104, phone 972-795-2401,
fax 972-692-6636, email michael@mowlalaw.com.

Vic Sasso, Attorney for Appellant at Trial (January 20, 2004 proceeding),
6440 N. Central Expressway Suite 309, Dallas, Texas 75206, phone (214) 265-
5547.

Peter Barrett, Attorney for Appellant at Trial (July 26, 2013 proceeding),
3500 Maple Avenue Suite 400, Dallas, Texas 75219, phone (214) 526-0555.

Phillip Robertson, Attorney for Appellant at Trial (October 10, 2013
proceeding), 6116 N. Central Expressway Suite 500, Dallas, Texas 75206, phone
(214) 214-891-9999.

Ezekiel Tyson, Attorney for Appellant at Trial (October 10, 2013 proceeding),
342 W. Montana Avenue, Dallas, Texas 75224, phone (214) 942-9000.

State of Texas, Appellee

Susan Hawk, Dallas County District Attorney, attorney for State of Texas, 133
N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone 214-653-3600, fax
214-653-3643.

Lori Ordiway, Dallas County Assistant District Attorney, attorney for State of
Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone 214-
653-3600, fax 214-653-3643, email lori.ordiway@dallascounty.org.

Lisa Smith, Dallas County Assistant District Attorney, attorney for State of
Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207, phone (214) 653-
3600, fax (214) 653-3643, email lisa.smith@dallascounty.org

Sam Moss, Dallas County Assistant District Attorney (January 20, 2004
proceeding), attorney for State of Texas, 133 N. Riverfront Blvd., LB 19, Dallas,
Texas 75207-4399, phone (214) 653-3600, fax (214) 653-3643.


                                   Page 2 of 31
Justin Lord, Dallas County Assistant District Attorney, attorney for State of
Texas (July 26, 2013 proceeding), 133 N. Riverfront Blvd., LB 19, Dallas, Texas
75207-4399, phone (214) 653-3600, fax (214) 653-3643.

Hon. Dominique Collins, Presiding Judge of Criminal District Court No. 4,
133 N. Riverfront Blvd., Dallas, Texas 75207-4399, phone (214) 653-5930.

Justices Michael O’Neill, Elizabeth Lang-Miers, and Ada Brown, Fifth Court
of Appeals, 600 Commerce, Suite 200, Dallas, Texas 75202, phone 214-712-3400.




                                  Page 3 of 31
II. Table of Contents

I.         Identity of Parties, Counsel, and Judges ..........................................................2 
II.        Table of Contents .............................................................................................4 
III.       Table of Authorities .........................................................................................5 
IV.        Appendix Index ...............................................................................................7 
V.         Statement Regarding Oral Argument ..............................................................8 
VI.        Statement of the Case and Procedural History ................................................9 
VII.  Grounds for Review.......................................................................................11 
VIII.  Argument .......................................................................................................12 
       1.  Ground for Review One: The Court of Appeals erred because it
           should have set aside the conviction for Manslaughter.
           Contrary to Texas Code of Criminal Procedure Article 1.15,
           there was insufficient evidence to support his plea of guilty to
           Manslaughter because the evidence showed Appellant was in
           fact guilty of the more specific offense of intoxication
           manslaughter. .................................................................................................12 
           i.        Argument .............................................................................................12 
           ii.       Conclusion ...........................................................................................21 
       2.  Ground for Review Two: The Court of Appeals erred when it
           ruled that Appellant was not entitled to credit against his
           sentence for the time he spent imprisoned in connection with
           the judgments in cause numbers F02-43341 and F03-43466.
           The Court of Appeals should have credited Appellant for that
           time as though he had been simultaneously confined for all
           offenses arising out of the same criminal episode and for which
           Appellant had been prosecuted in a single criminal action. ..........................22 
           i.        Argument .............................................................................................22 
           ii.       Conclusion ...........................................................................................29 
IX.        Conclusion and Prayer ...................................................................................29 
X.         Certificate of Service .....................................................................................30 
XI.        Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................31 



                                                       Page 4 of 31
III. Table of Authorities

Cases 
Ayers v. State, 05-13-01068-CR & 05-13-01069-CR, 2014 Tex. App.
      LEXIS 13977 (Tex. App. Dallas, December 31, 2014)
      (memorandum opinion) ................................................................ 9, 11, 13, 22
Bowden v. State, 166 S.W.3d 466 (Tex. App. Fort Worth 2005) ............................15
Collins v. State, 240 S.W.3d 925 (Tex. Crim. App. 2007) ......................................28
Dinnery v. State, 592 S.W.2d 343, 346-348 (Tex. Crim. App. 1979) .............. 14, 20
Hesskew v. Tex. Dep. of Pub. Safety, 144 S.W.3d 189, 191 (Tex. App.
     Tyler 2004, no pet.) .......................................................................................16
Hogans v. State, 176 S.W.3d 829 (Tex. Crim. App. 2005) .....................................17
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .........................................18
LaPorte v. State, 840 S.W.2d 412 (Tex. Crim. App. 1992) ....................................26
Lewis v. State, 529 S.W.2d 550 (Tex. Crim. App. 1975) ........................................16
Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999) .....................................21
Mireles v. State, 444 S.W.3d 679 (Tex. App. Houston [14th Dist.]
      2014) ..............................................................................................................26
Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001) ....................................... 12, 20
parte Griffith, 457 S.W.2d 60 (Tex. Crim. App. 1970) ...........................................28
State v. Crook, 248 S.W.3d 172 (Tex. Crim. App. 2008)........................................27
State v. McCoy, 64 S.W.3d 90 (Tex. App. Austin 2001, no pet.)............................18
Thornton v. State, 601 S.W.2d 340 (Tex. Crim. App. 1980)...................................20
White v. State, 05-12-00815-CR, 2013 Tex. App. LEXIS 4108, 2013
      WL 1319387 (Tex. App. Dallas, March 29, 2013) (not
      designated for publication) ............................................................................14
Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013) ........................................20
Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) ...................................18
Williams v. State, 641 S.W.2d 236 (Tex. Crim. App. 1982) ...................................19
Statutes 
Tex. Code Crim. Proc. Art. 1.15 (2013) ........................................................... 13, 17

                                                      Page 5 of 31
Tex. Code Crim. Proc. Art. 37.07 (2013) ................................................................17
Tex. Code Crim. Proc. Art. 42.01 (2013) ................................................................23
Tex. Code Crim. Proc. Art. 42.03 (2013) ................................................................24
Tex. Code Crim. Proc. Art. 42.12 (2013) ......................................................... 17, 21
Tex. Pen. Code § 12.33 (2013) ................................................................................28
Tex. Pen. Code § 19.04 (2013) ................................................................... 10, 19, 28
Tex. Pen. Code § 22.02 (2013) ......................................................................... 10, 28
Tex. Pen. Code § 3.02 (2013) ..................................................................................25
Tex. Pen. Code § 3.03 (2013) ..................................................................................25
Tex. Pen. Code § 6.03 (2013) ........................................................................... 15, 16
Rules 
Tex. Rule App. Proc. 66.3 (2015) ..................................................................... 22, 29
Tex. Rule App. Proc. 68.11 (2015) ..........................................................................30
Tex. Rule App. Proc. 68.4 (2015) ....................................................................... 8, 12
Tex. Rule App. Proc. 9.4 (2015) ..............................................................................31
Tex. Rule App. Proc. 9.5 (2015) ..............................................................................30
Constitutional Provisions 
U.S. Const. Amend. XIV .........................................................................................28




                                                 Page 6 of 31
IV. Appendix Index

Appendix 1: Ayers v. State, 05-13-01068-CR & 05-13-01069-CR, 2014 Tex. App.
LEXIS 13977 (Tex. App. Dallas, December 31, 2014) (memorandum opinion)




                                Page 7 of 31
V. Statement Regarding Oral Argument

      Appellant does not request oral argument. See Tex. Rule App. Proc. 68.4(c)

(2015).   Appellant believes that the facts and legal arguments are adequately

presented in this petition. However, should this Court determine that its decisional

process will be significantly aided by oral argument, Appellant will be honored to

present oral argument.




                                    Page 8 of 31
To The Honorable Judges of the Court of Criminal Appeals:

        Appellant Mathew James Ayers respectfully submits this petition for

discretionary review:


VI. Statement of the Case and Procedural History

        This petition for discretionary review requests that this Court review the

Memorandum Opinion and judgment of the Fifth Court of Appeals in Ayers v.

State, 05-13-01068-CR & 05-13-01069-CR, 2014 Tex. App. LEXIS 13977 (Tex.

App. Dallas, December 31, 2014) (memorandum opinion) (See Appendix 1). This

opinion affirmed two Judgments Adjudicating Guilt and sentences from Criminal

District Court Number 4 of Dallas County, Texas. (CR-1068, 53-56; CR-1069, 68-

71).1

        Court of Appeals cause number 05-13-01068-CR is appealed from trial court

cause number F03-01252, under which Appellant was convicted of Aggravated

Assault with a Deadly Weapon. (CR-1068, 53-56); See Tex. Pen. Code § 22.02

(2013). Appellant was indicted on July 23, 2003 for Aggravated Assault with a

Deadly Weapon. (CR-1068, 43-44). On January 20, 2004, Appellant was placed

on deferred adjudication community supervision for a period of ten years. (CR-


1
 The Clerk’s Record (two volumes) is referenced as follows: Court of Appeals Cause Number
05-13-01068-CR is referenced as “CR-1068” followed by the page number, and Cause Number
05-13-01069-CR is referenced as “CR-1069” followed by the page number. The Reporter’s
Record (five volumes) is referenced as “RR” followed by the volume number and page number
or exhibit number.
                                      Page 9 of 31
1068, 19-21). On July 26, 2013, under the Judgment Adjudicating Guilt, the trial

court sentenced Appellant to 20 years to the Texas Department of Criminal Justice,

Institutional Division. (CR-1068, 53-56).

      Court of Appeals cause number 05-13-01069-CR is appealed from trial court

cause number F03-01253, under which Appellant was convicted of Manslaughter.

(CR-1069, 68-70); See Tex. Pen. Code § 19.04 (2013). Appellant was indicted on

July 23, 2003. (CR-1069, 58-59). On January 20, 2004, Appellant was placed on

deferred adjudication community supervision for a period of ten years. (CR-1069,

19-21). On July 26, 2013, under the Judgment Adjudicating Guilt, the trial court

sentenced Appellant to 20 years to the Texas Department of Criminal Justice,

Institutional Division. (CR-1069, 68-69).

      Appellant appealed the Judgments Adjudicating Guilt and sentences to the

Court of Appeals. On December 31, 2014, the Fifth Court of Appeals affirmed

both judgments and sentences. Ayers, Id. at *8. This petition for discretionary

review follows.




                                   Page 10 of 31
VII. Grounds for Review

Ground for Review One: The Court of Appeals erred because it should have set
aside the conviction for Manslaughter. Contrary to Texas Code of Criminal
Procedure Article 1.15, there was insufficient evidence to support his plea of guilty
to Manslaughter because the evidence showed Appellant was in fact guilty of the
more specific offense of intoxication manslaughter.

Ground for Review Two: The Court of Appeals erred when it ruled that
Appellant was not entitled to credit against his sentence for the time he spent
imprisoned in connection with the judgments in cause numbers F02-43341 and
F03-43466. The Court of Appeals should have credited Appellant for that time as
though he had been simultaneously confined for all offenses arising out of the
same criminal episode and for which Appellant had been prosecuted in a single
criminal action.


      The relevant pages of the record are:

Clerk’s Record: CR-1068: 43-44, 48, 53-56; CR-1069: 19-21, 57-59, 63, 68-71.

Reporter’s Record: RR2; RR3, 5-25, 31-33, 43-71, 95-104, 123; RR5, SX-6, SX-

18. See Tex. Rule App. Proc. 68.4(f) (2015).




                                    Page 11 of 31
VIII. Argument

   1. Ground for Review One: The Court of Appeals erred because it should
      have set aside the conviction for Manslaughter. Contrary to Texas
      Code of Criminal Procedure Article 1.15, there was insufficient evidence
      to support his plea of guilty to Manslaughter because the evidence
      showed Appellant was in fact guilty of the more specific offense of
      intoxication manslaughter.

         i. Argument
      The Court of Appeals misinterprets Nix v. State, 65 S.W.3d 664, 667-668

(Tex. Crim. App. 2001). In the opinion, the Court correctly states that in Nix, this

Court held that for a judgment to be void, the record must show a complete lack of

evidence to support the conviction, not merely insufficient evidence. Ayers, Id. at

*4. And because Appellant “not only pleaded guilty to manslaughter, he also

judicially confessed to (Manslaughter)...Appellant’s conviction was not void. Id.

      In arriving at its decision, the Court of Appeals held that merely because

Appellant pleaded guilty to Manslaughter, although the facts do not support a

conviction for Manslaughter, this is “some evidence” that he is guilty of

Manslaughter. The Court of Appeals erred in this regard. As set forth in the only

evidence offered by the State to “support” Appellant’s guilty plea, Appellant’s

supposed “reckless” conduct was particularly described as follows:

      “...operating and driving a motor vehicle, a deadly weapon, and
      traveling in excess of the posted speed limit and at a speed greater
      than was reasonable and prudent under the existing circumstances and
      [failing] to stop for a traffic control device causing said motor vehicle


                                    Page 12 of 31
      operated by defendant to strike and collide with and against a motor
      vehicle occupied by said complainant.”

      This confusing statement failed to admit the commission of the offense of

Manslaughter and was therefore insufficient to meet the State’s burden under

Texas Code of Criminal Procedure Article 1.15. See Tex. Code Crim. Proc. Art.

1.15 (2013). Article 1.15 provides in relevant part as follows:

      No person can be convicted of a felony except upon the verdict of a
      jury duly rendered and recorded, unless the defendant, upon
      entering a plea...it shall be necessary for the state to introduce
      evidence into the record showing the guilt of the defendant and
      said evidence shall be accepted by the court as the basis for its
      judgment and in no event shall a person charged be convicted
      upon his plea without sufficient evidence to support the same.


Id. (emphasis added); See Dinnery v. State, 592 S.W.2d 343, 346-348 (Tex. Crim.

App. 1979) (This Court set aside the defendant’s conviction for burglary of a

habitation because although the defendant admitted he entered a habitable dwelling

with the intent to commit theft, under Texas Code of Criminal Procedure Article

1.15, the State still had to introduce evidence of the defendant’s guilt, and there

was no evidence that a theft occurred). And, as Appellant argued in his Brief to

the Court of Appeals, in White v. State, 05-12-00815-CR, 2013 Tex. App. LEXIS

4108, 2013 WL 1319387 (Tex. App. Dallas, March 29, 2013) (not designated for

publication), the appellant pleaded guilty to Burglary of a Habitation. Id. at *1.

The State filed a motion to adjudicate guilt, and after finding the appellant guilty,


                                    Page 13 of 31
the trial court assessed punishment at twenty years in prison for Burglary of

Habitation. Id. However, the appellant argued on appeal that his sentence is void

because the evidence supported a conviction for Burglary of a Building, a state jail

felony with a punishment range of “not more than two years or less than 180

days,” and not Burglary of a Habitation, which carries a punishment range of two

to twenty years in prison.     Id. at *2.     Because the appellant was assessed

punishment at twenty years in prison, the term was outside the range of

punishment for Burglary of a Building. Id. The Fifth Court of Appeals agreed, and

modified the judgment to reflect that the appellant was convicted only of Burglary

of a Building, which was the offense he actually committed. Id.

      In the case before this Court, the facts admitted do not show: (1) that the

death at issue would not have occurred but-for Appellant’s conduct, operating

either alone or concurrently with another cause, as required by Texas Penal Code §

6.04(a); or (2) that Appellant was aware of, but consciously disregarded a

substantial and unjustifiable risk that a death would occur. The Court of Appeals

therefore wrongly concluded that Appellant “judicially confessed to” having

committed Manslaughter or that Appellant’s guilty plea was supported as required

by law. At most, he confessed to Intoxication Manslaughter, if that.

      As Appellant argued, reckless conduct requires a person to consciously

disregard a substantial and unjustifiable risk that certain circumstances exist or the


                                    Page 14 of 31
result will occur. Tex. Pen. Code § 6.03(c) (2013) (emphasis added).      This risk

must be of such a nature and degree that its disregard constitutes a gross deviation

from the standard of care that an ordinary person would exercise under all the

circumstances as viewed from the person’s standpoint. Id.; See Bowden v. State,

166 S.W.3d 466, 473-478 (Tex. App. Fort Worth 2005) [The defendant acted

recklessly because leaving seven-and-eight-year-old girls alone to sleep alone in a

room with a blocked window, a burning candle, and in a house that had no means

of extinguishing a fire, and had only one door was a gross deviation from the

standard of care provided by Tex. Pen. Code § 6.03(c)]. The underlying basis of

reckless conduct is a conscious disregard of the risk created by the defendant’s

conduct. See Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975). As this

Court held, reckless conduct involves:

      conscious risk creation, that is, the actor is aware of the risk
      surrounding his conduct or the results thereof, but consciously
      disregards that risk...Criminal negligence...involves inattentive risk
      creation, that is, the actor ought to be aware of the risk surrounding
      his conduct or the results thereof. At the heart of reckless conduct is
      conscious disregard of the risk created by the actor’s conduct; the key
      to criminal negligence is found in the failure of the actor to perceive
      the risk.

See Lewis, 529 S.W.2d at 553.

      And as Appellant argued, driving “recklessly” is not the same as driving at

an “unsafe speed.” Driving at an “unsafe speed” can mean driving “at a speed

greater than is reasonable and prudent under the circumstances then existing” and
                                    Page 15 of 31
may also mean driving at a speed in excess of the speed limit. Tex. Transp. Code §

545.352(a) (2013). And driving “at a speed in excess of the speed limit is prima

facie evidence that the speed is not reasonable and prudent and that the speed is

unlawful,” but does not mean that the driving is “reckless.” Id. “Unsafe speed”

can mean traveling as high as 15 miles per hour over the speed limit.           See,

e.g., Hesskew v. Tex. Dep. of Pub. Safety, 144 S.W.3d 189, 191 (Tex. App. Tyler

2004, no pet.) (Traveling 50 miles per hour in a 35-mile-per-hour is considered to

be an “unsafe speed.”).

      Although there was additional evidence concerning the offense offered at the

hearing of the motion to adjudicate, this was admitted for purposes of assessing the

punishment, and this additional evidence still did not support a conviction for

Manslaughter. (RR3, 43-54); See Tex. Code Crim. Proc. Art. 37.07 § 3(a)(1)

(2013) (Regardless of the plea and whether punishment is assessed by the judge or

the jury, evidence may be offered by the State and the defendant as to any matter

the court deems relevant to sentencing). The initial part of such hearing is “limited

to the determination by the court of whether it proceeds with an adjudication of

guilt on the original charge.” Tex. Code Crim. Proc. Art. 42.12 § 5(b) (2013). This

is not an opportunity for the State to augment its proof of guilt or cure procedural

errors that occurred before further proceedings were deferred. It is the evidence

adduced for the court before the plea is accepted that must serve “as the basis for


                                    Page 16 of 31
its judgment.” See Tex. Code Crim. Proc. Art. 1.15 (2013). Punishment phase

evidence is not relevant to the determination or issue involved in what has been

called the “first phase.” See Hogans v. State, 176 S.W.3d 829, 833 (Tex. Crim.

App. 2005) (“The defendant is entitled to a punishment hearing” that should occur

“after the adjudication of guilt”). The fact that the scope of an appeal from a

deferred adjudication revocation proceeding was broadened in 2007 does not affect

the need for a separate adjudication phase.

      The conduct admitted was: driving and operating a motor vehicle, failing to

stop for a traffic control device, and causing the vehicle to strike and collide with

and against another vehicle occupied by “said complainant,” presumably because

of the failure to stop. The “said complainant” was not identified nor was how such

occupancy led to the death of Sandra Escamilla explained. Neither did the

stipulation explain how Appellant would have been aware of: (1) the traffic control

device; or (2) why Appellant’s failure to stop would create a substantial and

unjustifiable risk of injury to Sandra Escamilla. Yet, such facts were critical to a

decision about the truth of the fundamental allegation (that Appellant recklessly

caused Escamilla’s death). See State v. McCoy, 64 S.W.3d 90, 93 (Tex. App.

Austin 2001, no pet.) (State must prove why “conduct was committed recklessly”)

      A reviewing court could not accept a plea without such proof. See Williams

v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (A reviewing court must


                                    Page 17 of 31
“ensure that the evidence presented actually supports a conclusion that the

defendant committed the crime that was charged. If the evidence establishes

precisely what the State has alleged, but the acts that the State has alleged do not

constitute [the charged] criminal offense under the totality of the circumstances,

then that evidence, as a matter of law, cannot support a conviction.”). Further,

“[T]he cumulative force of all the incriminating circumstances” must support the

conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

      A proper description would have stated: “by causing the vehicle he was

driving to enter a controlled intersection when it was unsafe to do so and such

entry or attempt to pass through the intersection was prohibited by a red stop light

that he was required and expected to observe and honor, thereby causing his

vehicle to violently collide with another vehicle then lawfully passing through the

intersection with the right of way, which resulted in the death of Sandra Escamilla,

who was travelling in the other vehicle, due to the trauma to her body occurring

during the collision.” Perhaps in support of the allegation that Appellant was

reckless, the stipulation further stated that Appellant drove and operated his vehicle

while intoxicated (i.e., without normal use of his mental and physical faculties by

reason of introduction of various things into his body). The intoxication of one

person, however, does not in itself cause the death of another. Therefore, this part

of the stipulation merely concerned a circumstance surrounding the conduct. It was


                                    Page 18 of 31
unnecessary to the theory that Appellant committed Manslaughter, yet effectively

served to show that he had committed the distinct offense defined by Texas Penal

Code § 49.08. This is important because a defendant is entitled to be charged only

under the statute that most particularly describes his conduct. Williams v. State,

641 S.W.2d 236, 238 (Tex. Crim. App. 1982). For that reason as well, the trial

court should not have accepted this as proof of guilt under Texas Penal Code §

19.04.

         A conviction is void when based on a guilty plea that is not properly

supported by evidence. Thornton v. State, 601 S.W.2d 340, 343 (Tex. Crim. App.

1980) (“admissions of the appellant in his judicial confession will not support a

conviction based upon the [different] offense charged in the indictment”); Dinnery,

592 S.W.2d at 350-351.

         Notice must be taken of the fact that this Court has sought to create a rule of

waiver where this type of error is not brought to the attention of the trial court at

the time it hears a motion to adjudicate. Nix, 65 S.W.3d at 670 n.26; Wiley v. State,

410 S.W.3d 313, 320-321 (Tex. Crim. App. 2013) [finding that failure to appeal

from “regular” community supervision order precluded any subsequent

consideration of sufficiency of evidence to support an order under Tex. Code Crim.

Proc. Art. 26.05(g)]. However, prior to the hearing on the State’s Motions to

Proceed with Adjudication of Guilt, Appellant’s trial attorney filed a “Motion to


                                       Page 19 of 31
Dismiss Motion to Adjudicate,” alleging that the sentences for deferred

adjudication community supervision are a violation of the Texas Code of Criminal

Procedure, and are in violation of the Sixth and Fourteenth Amendments to the

United States Constitution. (CR-1068, 48; CR-1069, 63). Appellant urged this

motion at the hearing on the State’s Motions to Proceed with Adjudication of Guilt

held on July 26, 2013, and the trial court denied the motions. (RR3, 6). Thus, this

issue is preserved for appellate review.

      And even had Appellant’s trial counsel not filed this motion, the majority’s

rationale in Nix appears to ignore the provision of the statute that “all

proceedings...including...defendant’s appeal continue as if the adjudication of guilt

had not been deferred.” Tex. Code Crim. Proc. Art. 42.12 § 5(b) (2013).

      Moreover, the decision in Manuel v. State, 994 S.W.2d 658 (Tex. Crim.

App. 1999) did not purport to change the holding in Thornton. Here, the trial court

should never have accepted Appellant’s plea of guilty and, in fact, was prohibited

by law from doing so. This, in turn, prevented the trial court from making a finding

of guilt based on the plea at any time. The impropriety was not cured by the

passage of time or the fact that, rather than appeal in 2004, Appellant elected to try

to get the indictment dismissed with prejudice by agreeing to the terms of

community supervision.




                                    Page 20 of 31
         ii. Conclusion
      The Court of Appeals erred because it should have set aside the conviction

for Manslaughter. Contrary to Texas Code of Criminal Procedure Article 1.15,

there was insufficient evidence to support his plea of guilty of Manslaughter

because the evidence showed Appellant was in fact guilty of the more specific

offense of Intoxication Manslaughter. As a result, (1) the decision of the Court of

Appeals decision conflicts with the decision of another court of appeals on the

same issue; and (2) the Court of Appeals has decided an important question of state

or federal law that has not been, but should be, settled by the Court of Criminal

Appeals. See Tex. Rule App. Proc. 66.3 (2015). Appellant asks this Court to grant

discretionary review.




                                   Page 21 of 31
   2. Ground for Review Two: The Court of Appeals erred when it ruled that
      Appellant was not entitled to credit against his sentence for the time he
      spent imprisoned in connection with the judgments in cause numbers
      F02-43341 and F03-43466. The Court of Appeals should have credited
      Appellant for that time as though he had been simultaneously confined
      for all offenses arising out of the same criminal episode and for which
      Appellant had been prosecuted in a single criminal action.

         i. Argument
      In formulating his arguments on appeal, Appellant became concerned about

the amount of credit the trial court’s judgment reflected that he had earned against

his sentence by reason of the time he had already been incarcerated. But in its

opinion, the Court of Appeals “splits hairs” by differentiating between “same

criminal episode” and “the case.” Ayers, Id. at *7-8. As the Court of Appeals

held, “[W]e note that throughout this issue appellant suggests he was entitled to

credit because the failure to stop and render aid cases arose out of the “same

criminal episode” as the manslaughter and aggravated assault cases. But article

42.03 § 2(a)(1) requires credit for time served for ‘the case,’ not for offenses

arising out of the same criminal episode.” However, the Court of Appeals provides

no solid authority to support its conclusion that Appellant is not entitled to credit

against his sentence for the time he spent imprisoned in connection with the

judgments in cause numbers F02-43341 and F03-43466.               As the following

arguments will show, the Court of Appeals should have credited Appellant for that

time as though he had been simultaneously confined for all offenses arising out of


                                    Page 22 of 31
the same criminal episode and for which Appellant had been prosecuted in a single

criminal action.

      The judgment was required to state the amount of “credit for time served”

that was due. Tex. Code Crim. Proc. Art. 42.01 § 1(18) (2013). Yet, it failed to

incorporate or recognize most of the time, which by the time sentence was set and

imposed, Appellant had been confined under the judgments in cause numbers F02-

43341 and F03-43466 (the failure to stop and render aid cases). Appellant thus

asked the Court of Appeals to make the necessary changes to this portion of the

Judgments Adjudicating Guilt and sentences.

      This area of the law is muddled. Under the usual circumstances, even where

someone is arrested and held in custody on multiple charges, once sentence is

pronounced, the court merely looks to see how much time (subject to certain

exceptions) the defendant has spent “in jail for the case” since he was first arrested

and the same amount of credit is awarded in each case. Tex. Code Crim. Proc. Art.

42.03 § 2(a)(1) (2013). But, the meaning of “the case” can become ambiguous. Its

meaning is potentially unclear here for two reasons. Appellant’s four cases were

melded into one, yet final disposition of (and particularly sentencing for) the

aggravated assault charge was temporally separated from another portion of the

proceedings. Furthermore, because Appellant was released from jail (but




                                    Page 23 of 31
transferred to custody elsewhere), the Court of Appeals likely further confused

what the judgment should have provided about time credits.

      Arguably, because the records of TDCJ will reflect the period of time

Appellant was required to serve after January 20, 2004, even though under a

different judgment and cause number and before sentence was imposed in the

instant case, there was no need to address this in the trial court’s judgment. TDCJ

is the entity required and able to make the necessary postjudgment time credit

calculations. But, if for no other reason than because the Court of Appeals

determined to address the issue, it must now be dealt with here. Perhaps that is

fortunate because it is a matter that has not been, but should be settled by this

Court and is important to the jurisprudence of the State, as it will be involved in

like cases in the future.

      So, if this Court should determine that Appellant was properly adjudged

guilty of Aggravated Assault and Manslaughter, it should consider whether the

Court of Appeals erred in opining that Appellant is not entitled to receive credit

against his 20-year sentence for the time he had already spent in prison as a result

of his conduct on December 6, 2002, but before being sentenced for Aggravated

Assault and Manslaughter.

      This is because the record of the January 20, 2004 hearing (RR2) establishes

that under Texas Penal Code § 3.02, Appellant was prosecuted for more than one


                                    Page 24 of 31
offense arising out of the same criminal episode in a single criminal action. See

Tex. Pen. Code § 3.02(a) (2013). Since none of the exceptions stated in Texas

Penal Code § 3.03(b) apply, once the court found Appellant guilty of Aggravated

Assault and Manslaughter, it was required to pronounce that the sentence for that

offense would run concurrently with all other offenses prosecuted in the single

criminal action. See Tex. Pen. Code § 3.03(a) (2013). The judgments appropriately

state: “This sentence shall run concurrently.” (CR-1068, 53-56; CR-1069, 68-71).

      Without question, Appellant is entitled to credit against his sentence for the

time he spent imprisoned in connection with the judgments in cause numbers F02-

43341 and F03-43466 because these judgments and the judgments for

Manslaughter and Aggravated Assault arise out of the same criminal episode. In

effect, by prosecuting all four offenses in a single criminal action in 2004, the State

chose to make the sentencing restrictions in Texas Penal Code §                3.03(a)

applicable. This is true even though further proceedings were initially deferred

with respect to part of the criminal action. That fact did not alter the application of

section 3.03 because the period of deferral is to be ignored as though it never

occurred (even if it ends prematurely). As the more specific statute, section 3.03

controls over the discretion otherwise given in Texas Code of Criminal Procedure

Article 42.08. See Mireles v. State, 444 S.W.3d 679 (Tex. App. Houston [14th

Dist.] 2014) (“Section 3.03(a) operates as a limitation on the trial court’s broad


                                     Page 25 of 31
discretion, unless an exception applies under Section 3.03(b)...[T]he trial court’s

general authority under Article 42.08 to order consecutive sentences is statutorily

limited by Section 3.03 whenever a single criminal action arising out of the same

criminal episode occurs”), citing LaPorte v. State, 840 S.W.2d 412, 415 (Tex.

Crim. App. 1992).

      The Judgments Adjudicating Guilt and sentences, however, only provided

for credit for December 7, 2002 through December 10, 2002 (three days); January

7, 2004 through February 12, 2004 (36 days); and June 18, 2013 through July 26,

2013 (38 days), for a total of 77 days of back-time credit. (CR-1068, 53; CR-1069,

68) (See also the jail disposition sheet, CR-1069, 62, which reflects 77 days of

back-time credit). The Judgments Adjudicating Guilt ignore the fact that Appellant

remained confined after February 12, 2004, and until the end of 2008. Appellant

should have received credit for another four years and ten months spent in prison.

Immediately after the Deferred Adjudication Orders were imposed on January 20,

2004, Appellant served four years and ten months of the five-year sentences for the

Failure to Stop and Render Aid cases during the period between January 20, 2004

and towards the end of calendar year 2008. (RR3, 74, 91-92).           The prison

sentences for the Failure to Stop and Render Aid cases under trial court cause

numbers F02-43341 and F03-43466 were imposed on the same day as the Deferred

Adjudication Orders. And as explained above, the record clearly indicates that the


                                   Page 26 of 31
prison sentences arose from the “same criminal episode” as the Deferred

Adjudication Orders. It is also clear that Appellant served the four years and ten

months after the sentences for the Deferred Adjudication Orders began.

      Rather than acting to correct the problem, the Court of Appeals erred in

interpreting the language of Texas Code of Criminal Procedure Article 42.03 § 2 as

overriding the State’s earlier election for concurrent sentencing. See State v. Crook,

248 S.W.3d 172, 176 (Tex. Crim. App. 2008) (“one of the purposes of Chapter 3

was to provide prosecutors with the ability to clear crowded dockets and to save

tax-payer money by disposing of multiple crimes in one trial”). Texas Code of

Criminal Procedure Article 42.03 § 2 expressly deals only with credit for pretrial

incarceration and not how postjudgment time is credited. The lower court’s

judgments, however, clearly will mislead TDCJ in determining both Appellant’s

eligibility for parole and his maximum discharge date. Furthermore, without

correction by this Court, this erroneous view may well be considered to become

the “law of the case,” and perhaps as a result, irreparable. Certainly, the trial court

would be more hesitant to make any correction by entry of judgment nunc pro

tunc. Cf. Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007) (“An

incorrect calculation of the amount of back-time awarded to a defendant, or the

omission of any statutory back-time in the judgment can be adjusted by a motion

for judgment nunc pro tunc.”). This would be even more unjust than how


                                     Page 27 of 31
Appellant was singled out for much harsher treatment than most others have

routinely received for similar bad conduct.

       Finally, construing the judgment of the trial court together with the opinion

of the Court of Appeals, it appears highly likely that TDCJ and ultimately the

Board of Pardons and Paroles will now effectively treat Appellant as having

received a sentence of more than 20 years for Aggravated Assault with a

Deadly Weapon and Manslaughter, which is in excess of that provided by law.

See Tex. Pen. Code § 22.02 (2013); Tex. Pen. Code § 19.04 (2013); Tex. Pen.

Code § 12.33 (2013) (“An individual adjudged guilty of a felony of the second

degree shall be punished by imprisonment in (TDCJ) for any term of not more than

20 years or less than 2 years).   This result is prohibited by the Equal Protection

Clause of the Fourteenth Amendment, and should be prevented. See U.S. Const.

Amend. XIV; see e.g., Ex parte Griffith, 457 S.W.2d 60, 64 (Tex. Crim. App.

1970) (concerning determination and award of postjudgment time credit in Texas

trial courts); Jimmerson v. State, 957 S.W.2d 875, 876 (Tex. App. Texarkana 1997,

no pet.) (When a defendant receives the maximum sentence authorized by law,

the Equal Protection Clause of the Fourteenth Amendment requires that he receive

credit for pretrial jail time).




                                    Page 28 of 31
         ii. Conclusion
      The Court of Appeals erred when it ruled that Appellant was not entitled to

credit against his sentence for the time he spent imprisoned in connection with the

judgments in cause numbers F02-43341 and F03-43466. The Court of Appeals

should have credited Appellant for that time as though he had been simultaneously

confined for all offenses arising out of the same criminal episode and for which

Appellant had been prosecuted in a single criminal action.

      As a result, (1) the decision of the Court of Appeals decision conflicts with

the decision of another court of appeals on the same issue; and (2) the Court of

Appeals has decided an important question of state or federal law that has not been,

but should be, settled by the Court of Criminal Appeals. See Tex. Rule App. Proc.

66.3 (2015). Appellant asks this Court to grant discretionary review.


IX. Conclusion and Prayer

      For the reasons stated in this petition, Appellant respectfully prays that this

Court grant discretionary review, reverse the Memorandum Opinion and judgment

of the Fifth Court of Appeals, strike the Deferred Adjudication Order and the

Judgment Adjudicating Guilt and sentence for the Manslaughter case under cause

number F03-01253 (05-13-01069-CR) as void judgments, and reverse the

Judgment Adjudicating Guilt and sentence for the Manslaughter. Appellant further

prays that this Court reverse the Judgments Adjudicating Guilt and sentences and

                                    Page 29 of 31
remand this case back to the trial court for a proper recalculation of the actual time-

credit towards Appellant’s sentence to reflect the additional four years and ten

months Appellant spent in prison.

                                        Respectfully submitted,

                                        Michael Mowla
                                        445 E. FM 1382 #3-718
                                        Cedar Hill, Texas 75104
                                        Phone: 972-795-2401
                                        Fax: 972-692-6636
                                        michael@mowlalaw.com
                                        Texas Bar No. 24048680
                                        Attorney for Appellant



                                        /s/ Michael Mowla
                                        By: Michael Mowla


X. Certificate of Service

       This certifies that on February 25, 2015, a copy of this document was served
on Lori Ordiway and Lisa Smith of the Dallas County District Attorney’s Office,
Appellate Division, 133 N. Riverfront Boulevard, Dallas, Texas 75207 by email to
lori.ordiway@dallascounty.org,             lisa.smith@dallascounty.org,         and
DCDAAppeals@dallascounty.org; and on Lisa McMinn, the State Prosecuting
Attorney, by email to Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant
State Prosecuting Attorney, by email to john.messinger@spa.state.tx.us. See Tex.
Rule App. Proc. 9.5 (2015) and Tex. Rule App. Proc. 68.11 (2015).




                                        /s/ Michael Mowla
                                        By: Michael Mowla


                                     Page 30 of 31
XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4

       This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 4,500 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 4,433 words in the document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented
(grounds for review section), statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix. This document also complies with the typeface requirements because it
has been prepared in a proportionally-spaced typeface using 14-point font. See
Tex. Rule App. Proc. 9.4 (2015).



                                       /s/ Michael Mowla
                                       By: Michael Mowla




                                    Page 31 of 31
APPENDIX 1
No Shepard’s Signal™
As of: February 24, 2015 8:36 PM EST

                                             Ayers v. State
                           Court of Appeals of Texas, Fifth District, Dallas
                                   December 31, 2014, Opinion Filed
                              No. 05-13-01068-CR, No. 05-13-01069-CR

Reporter
2014 Tex. App. LEXIS 13977

MATTHEW JAMES AYERS, Appellant v. THE STATE OF TEXAS, Appellee

Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION
OF UNPUBLISHED OPINIONS.

Prior History: [*1] On Appeal from the Criminal District Court No. 4, Dallas County, Texas. Trial
Court Cause Nos. F-0301252-K & F-0301253-K.

Core Terms

manslaughter, sentences, deferred, trial court, intoxication, cases, probation, void, guilty plea, ex parte,
jail, render aid, Appeals, serving, orders

Case Summary

Overview
HOLDINGS: [1]-Defendant’s manslaughter conviction was not void where he pleaded guilty and
judicially confessed to the offense; [2]-The trial court did not err by failing to give defendant
pre-sentence jail time credit under Tex. Crim. Proc. Code Ann. art. 42.03, § 2(a)(1) (2011) for the time
he was incarcerated serving his sentences for two failure to stop and render aid cases because the orders
placing him on deferred adjudication for manslaughter and aggravated assault did not provide a basis
for his confinement and he was released after serving his sentences notwithstanding those orders.

Outcome
Judgment affirmed.

LexisNexis® Headnotes

  Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > General Overview
  Criminal Law & Procedure > ... > Entry of Pleas > Guilty Pleas > General Overview
  Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > General Overview
  Criminal Law & Procedure > ... > Entry of Pleas > Guilty Pleas > General Overview
                                       2014 Tex. App. LEXIS 13977, *1



HN1 To show a conviction is void on the basis ″no evidence,″ there must be a complete lack of
evidence to support the conviction, not merely insufficient evidence. A guilty plea constitutes some
evidence for this purpose.

  Criminal Law & Procedure > Sentencing > Credits
  Criminal Law & Procedure > ... > Reviewability > Waiver > General Overview
  Criminal Law & Procedure > Sentencing > Credits
  Criminal Law & Procedure > ... > Reviewability > Waiver > General Overview

HN2 The Court of Criminal Appeals of Texas has held a defendant may ″affirmatively waive″ his
statutory right to pre-sentence jail time credit if the record supports that a waiver occurred.

  Criminal Law & Procedure > Sentencing > Credits
  Criminal Law & Procedure > Sentencing > Credits

HN3 See Tex. Crim. Proc. Code Ann. art. 42.03, § 2(a)(1) (2011).

  Criminal Law & Procedure > Sentencing > Credits
  Criminal Law & Procedure > Sentencing > Credits

HN4 Tex. Crim. Proc. Code Ann. art. 42.03, § 2(a)(1) (2011) only allows for credit for time a
defendant was in jail for the same case in which he is seeking credit.

  Criminal Law & Procedure > Sentencing > Credits
  Criminal Law & Procedure > Sentencing > Credits

HN5 Tex. Crim. Proc. Code Ann. art. 42.03, § 2(a)(1) (2011) requires credit for time served for ″the
case,″ not for offenses arising out of the same criminal episode.

Judges: Before Justices O’Neill, Lang-Miers, and Brown. Opinion by Justice O’Neill.

Opinion by: MICHAEL J. O’NEILL

Opinion

MEMORANDUM OPINION
Opinion by Justice O’Neill
Appellant Matthew James Ayers appeals the trial court’s judgments adjudicating his guilt for
manslaughter and aggravated assault. In two issues, appellant contends (1) his manslaughter conviction
is ″void,″ and (2) the trial court erred in failing to give him credit against his sentences for time he was
incarcerated serving sentences for two other cases. For the following reasons, we affirm the trial
court’s judgments.
In 2004, appellant pleaded guilty to manslaughter for recklessly causing the death of Sandra Escamilla
when he, while intoxicated, ran through a red light in excess of the speed limit, causing a multi-vehicle

                                                  Page 2 of 5
                                                  2014 Tex. App. LEXIS 13977, *1



accident. Appellant also pleaded guilty to aggravated assault for critically injuring another person in
the same collision. Finally, appellant also pleaded guilty to failing to stop and render aid to the two
victims.

Pursuant to a plea bargain agreement, the trial court placed appellant on deferred adjudication [*2]
probation in the manslaughter and aggravated assault cases, but convicted him in the failure to stop and
render aid cases and sentenced him to five-years in prison in each of those cases.

In 2013, appellant was arrested for driving while intoxicated. The State filed motions to adjudicate
appellant’s guilt alleging he violated the conditions of his community supervision by committing the
new offense and also by failing to submit to random urine testing. Appellant pleaded true to the
allegations in the State’s motions. Following a hearing, the trial court found the allegations in the
motions true, adjudicated appellant guilty of the offenses, and sentenced him to twenty years’
confinement in each case. Appellant appeals.

In his first issue, appellant requests that we ″strike″ the order placing him on deferred adjudication
probation for manslaughter and the judgment adjudicating his guilt for that offense. Appellant
acknowledges his complaint is directed toward the original deferred adjudication proceedings and he
must therefore show his manslaughter conviction is void. See Nix v. State, 65 S.W.3d 664, 667-68 (Tex.
Crim. App. 2001). To make this showing, appellant presents a somewhat convoluted argument
asserting that because he ″should″ have [*3] been convicted of ″intoxication″ manslaughter, and he
was not eligible for deferred adjudication for that offense, the order placing him on deferred
adjudication community supervision is void, which in turn rendered his manslaughter conviction void.
See TEX. CRIM. PROC. CODE ANN. art. 42.12, § 5(d)(1)(A) (West Supp. 2014) (trial court may not grant
deferred adjudication for intoxication manslaughter); but see ex parte Williams, 65 S.W.3d 656, 658
(Tex. Crim. App. 2001) (grant of unauthorized regular community supervision does not constitute a
void sentence); see also Wright v. State, No. 05-02-00233-CR, 2003 Tex. App. LEXIS 4519, 2003 WL
21223294, at *2 (Tex. App. —Dallas, May 28, 2003, no pet.) (not designated for publication).

However, appellant did not plead guilty to intoxication manslaughter, was not placed on deferred
adjudication for intoxication manslaughter, and appellant was not convicted of that offense. Therefore,
whether the trial court would have been ″authorized″ to place him on probation for that offense or
whether the evidence would support a conviction for that offense is irrelevant.1 Instead, the only
question is whether appellant has shown his conviction for manslaughter was void. The only basis
appellant sets forth to meet this burden is his contention that there is ″no evidence″ to show he
committed that offense because the State [*4] failed to show he acted ″recklessly.″ Ervin v. State, 991
1
    We note that both ″regular″ manslaughter and ″intoxication″ manslaughter are second-degree felonies. See TEX. PENAL CODE ANN. §
19.04(b) (West 2011); Tex. Penal Code Ann. § 49.08(b) (West 2011). Both carry the same range of punishment, but intoxication
manslaughter carries additional consequences. See Harris v. State, 34 S.W.3d 609, 613 (Tex. App.—Waco 2000, pet ref’d). Therefore,
if anything, intoxication manslaughter is the more serious offenses. See id. Here, appellant agreed to plead guilty to regular manslaughter
and accepted the benefits of the plea agreement that gave him the opportunities associated with deferred adjudication probation. Only
after the trial court’s adjudication of guilt did appellant complain he was not eligible for deferred adjudication [*5] probation. The Court
of Criminal Appeals has held that a defendant who has agreed to and benefitted from an illegal sentence is estopped from collaterally
attacking a judgment on the basis that the sentence was illegal. Rhodes v. State, 240 S.W.3d 882, 892 (Tex. Crim. App. 2007); See also
Ex parte Williams, 65 S.W.3d 656, 660 (Tex. Crim. App. 2001) (Keller, J. concurring) (defendant who accepted benefits of plea
agreement granting probation should be estopped from complaining that trial court lacked authority to place him on probation when that
probation is later revoked).

                                                                 Page 3 of 5
                                       2014 Tex. App. LEXIS 13977, *4



S.W.2d 804, 806 (Tex. Crim. App. 1999) (manslaughter requires ″recklessness,″ but intoxication
manslaughter does not). HN1 To show a conviction is void on the basis ″no evidence,″ there must be
a ″complete lack of evidence to support the conviction, not merely insufficient evidence.″ See Nix, 65
S.W.3d at 668 n.14. A guilty plea constitutes some evidence for this purpose. Id. Here, appellant not
only pleaded guilty to manslaughter, he also judicially confessed to that offense. Consequently,
appellant’s conviction was not void. We resolve the first issue against appellant.

In his second issue, appellant asserts the trial court erred in failing to give him pre-sentence jail time
credit for the time he was incarcerated serving his sentences for the two failure to stop and render aid
cases. The State asserts appellant waived any error by failing to object under rule 33.1(a) of the rules
of appellate procedure. See TEX. R. APP. P. 33.1(a); but see McGregor v. State, 145 S.W.3d 820, 822
(Tex. App.—Dallas 2004, no pet.) (appellant need not object to trial court’s failure to properly credit
time served). HN2 The Court of Criminal Appeals has held a defendant may ″affirmatively waive″ his
statutory right to pre-sentence jail time credit if the record supports that a waiver occurred. Collins v.
State, 240 S.W.3d 925, 929 (Tex. Crim. App. 2007) (citing ex parte Olivares, 202 S.W.3d 771, 772-73
(Tex. Crim. App. 2006). We need not decide whether preservation was required because, even if
appellant can raise this issue for the first time on appeal, he has not shown [*6] the trial court erred.

Here, appellant is seeking credit for time he served in prison serving sentences in two other, albeit
related, cases. Appellant acknowledges his entitlement to time served is governed by Article 42.03, §
2(a)(1) which provides, HN3 ″[i]n all criminal cases the judge of the court in which the defendant is
convicted shall give the defendant credit on the defendant’s sentence for the time that the defendant
has spent . . . in jail for the case . . . from the time of his arrest and confinement until his sentence by
the trial court . . ..″ TEX. CRIM. PROC. CODE ANN. art. 42.03, § 2(a)(1) (West 2011) (emphasis added).
According to appellant, he is entitled to any time spent ″actually incarcerated from the date of his
’arrest’ and the date of his ’sentencing.’″ HN4 Article 42.03, section 2(a)(1), however, only allows for
credit for time a defendant was in jail for the same case in which he is seeking credit. Collins v. State,
318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet. ref’d); see also ex parte Crossley, 586 S.W.2d
545, 546 (Tex. Crim. App. 1979); ex parte Alvarez, 519 S.W.2d 440, 443 (Tex. Crim. App. 1975). We
reject appellant’s assertion he was ″effectively″ in custody ″for″ the deferred adjudication orders
because those orders operated as a ″detainer″ on him. To support this assertion, he relies on Ex parte
Jasper, 538 S.W.2d 782, 785 (Tex. Crim. App. 1976). In that case, the Court of Criminal Appeals held
a defendant is entitled to credit for time served in another jurisdiction after the State [*7] of Texas
placed a detainer on the defendant. Jasper, 538 S.W.2d at 785. The rationale for allowing a time credit
under such circumstances is that the detainer provides an independent basis for the defendant’s
confinement. See Ex parte Bynum, 772 S.W.2d 113, 115 (Tex. Crim. App. 1989); see Alvarez, 519
S.W.2d at 443. Here, the orders placing appellant on deferred adjudication did not provide a basis for
his confinement, and he was released after serving his sentences notwithstanding those orders. See
Crossley, 586 S.W.2d at 546 (defendant not entitled to pre-sentence jail credit for time he was in jail
on another offense in which the State had filed a motion to revoke probation because the motion to
revoke would not have prevented appellant’s release from custody). Consequently, the orders did not
operate as a ″detainer″ on appellant.
Finally, we note that throughout this issue appellant suggests he was entitled to credit because the
failure to stop and render aid cases arose out of the ″same criminal episode″ as the manslaughter and

                                                  Page 4 of 5
                                      2014 Tex. App. LEXIS 13977, *7



aggravated assault cases. But HN5 article 42.03, section 2(a)(1) requires credit for time served for ″the
case,″ not for offenses arising out of the same criminal episode. See TEX. CODE CRIM. PRO. ANN. ART.
42.03, § 2(a)(1); cf. Collins, 318 S.W.3d at 473; see also Alvarez, 519 S.W.2d at 443; Crossley, 586
S.W.2d at 546; compare TEX. PEN. CODE ANN. § 3.03 (West 2011) (providing for concurrent sentences
for certain offenses [*8] arising out of the ″same criminal episode.″) We conclude appellant was not
entitled to credit for the time he was incarcerated serving his sentences in the failure to stop and render
aid cases. We resolve the second issue against appellant.

We affirm the trial court’s judgments.

/Michael J. O’Neill/

MICHAEL J. O’NEILL

JUSTICE

Do Not Publish

TEX. R. APP. P. 47

JUDGMENT

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 31st day of December, 2014.




                                                 Page 5 of 5
