                              NUMBER 13-07-00268-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JESSE BROWN,                                                                     Appellant,

                                              v.

THE STATE OF TEXAS,                                                              Appellee.


   On appeal from the 105th District Court of Nueces County, Texas.


                           MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
            Memorandum Opinion by Chief Justice Valdez

       A jury convicted appellant, Jesse Brown, of delivery of cocaine in an amount less

than one gram. See TEX . HEALTH & SAFETY CODE ANN . § 481.112 (Vernon 2005). The trial

court assessed punishment at two years in a State jail and a fine of $2,000. In a single

issue, appellant contends that he was denied equal protection of the law because the

district court did not give him credit for his pre-trial jail time when it imposed the two-year
jail sentence. We affirm the judgment as modified.

                                        I. BACKGROUND

       Appellant was arrested on January 30, 2007, and his bond was set at $10,000. On

March 4, 2007, appellant petitioned the court to appoint counsel for him because he was

“indigent, homeless, [with] no job [or] family.” On March 14, 2007, appellant’s court-

appointed counsel filed a “Request for Court Approval to Hire Investigator,” wherein he

noted that appellant is indigent and “detained in the Nueces County Main Jail in Corpus

Christi, Texas . . . and has been detained in said facility since January 30, 2007.” No bail

bond is in the clerk’s record. A jury found appellant guilty on April 10, 2007. At the

punishment hearing, also held on April 10th, the trial court denied appellant’s request for

jail time credit, stating: “the law says that a person convicted of a State jail felony is not

entitled to jail time credit and I will not grant you that jail time credit.”

                                          II. ANALYSIS

       In State jail felony cases, a trial court generally has discretion whether to grant the

defendant credit against his sentence for any jail time served between his arrest and his

sentencing. TEX . CODE CRIM . PROC . ANN . art. 42.12, § 15(h)(2) (Vernon 2006). If, however,

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 pre-sentence jail time. See Broussard v. State, 226 S.W.3d 619, 620-

21 (Tex. App.–Houston [1st Dist.] 2007, no pet.) (citing See Ex Parte Harris, 946 S.W.2d

79, 80 (Tex. Crim. App. 1997)). To deny time credit under these circumstances would

cause the defendant to suffer incarceration beyond the maximum punishment provided for



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the offense because of his indigence, and thus deny him equal protection of the law. See

Holloway v. State, 115 S.W.3d 797, 789 (Tex. App.–Austin 2003, no pet.).

       We find the record sufficiently shows that appellant was in custody and unable to

post bond due to indigence from January 30, 2007 through April 10, 2007, a period of 71

days. Appellant also received the maximum two-year sentence provided for state jail

felonies. See TEX . PENAL CODE ANN . § 12.35(a) (Vernon Supp. 2007). Thus, he must be

given credit for the time he spent in jail due to his inability to afford the bail initially set by

the court. See Phillips v. State, 64 S.W.3d 458, 461 (Tex. App.–Houston [1st Dist.] 2001,

no pet.). Appellant’s sole issue on appeal is sustained.

                                        III. CONCLUSION

       We modify the judgment of the trial court as to appellant’s punishment to reflect 71

days credit for time served and affirm the judgment as modified.




                                      ROGELIO VALDEZ
                                      Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed
this the 17th day of April, 2008.




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