





IN THE 
COURT OF CRIMINAL APPEALS


OF TEXAS






NOS. WR-36,343-02 & 
-03 




EX PARTE 
BRIAN KEVIN FOSTER, Applicant







ON 
APPLICATIONS FOR WRITS OF HABEAS CORPUS 
CAUSE NOS. 
W93-68891-J(B), W96-46975-J(B) 
IN THE 
CRIMINAL DISTRICT COURT NO. 3 FROM DALLAS COUNTY 




Per 
curiam.

O R D E R 

Brian Kevin 
Foster was convicted of possession of a controlled substance and delivery of a 
controlled substance. Foster received a sentence of ten years' imprisonment for 
each offense. Foster did not appeal.
Foster was 
released on parole on July 30, 1999. While Foster was out on parole, he was 
charged and convicted of aggravated assault with a deadly weapon, a 
second-degree-felony offense. On May 20, 2004, he was sentenced to two years' 
imprisonment and fined $2,000. He did not appeal. A pre-revocation warrant 
initiating the revocation proceedings was issued on February 27, 2004. Finding 
that Foster violated the conditions of his release by virtue of his new 
conviction, the Texas Board of Pardons and Paroles voted to revoke Foster's 
release on June 18, 2004. 
After exhausting 
his administrative remedies, (1) Foster filed 
these applications for writs of habeas corpus challenging TDCJ's failure to 
credit his ten-year sentences with "street-time" credit under Section 
508.283(c), Texas Government Code, for the period of time he spent on parole. 

Under Section 
508.283(c), an inmate is entitled to time credit for time served while released 
to parole or mandatory supervision if the inmate "meets the following two 
conditions: (1) the inmate is not 'a person described by Section 508.149(a)' of 
the Texas Government Code; and (2) on the date that the pre-revocation warrant 
or summons initiating the revocation process is issued, the remaining portion of 
the inmate's sentence is less than the time the inmate spent on parole." (2) 
The trial judge 
has determined that Foster is entitled to street-time credit and recommends that 
we grant relief. First, the trial judge concluded that Foster fulfilled the 
second condition entitling him to street-time credit. The trial judge found that 
Foster had approximately six years and ten months left on his sentences when he 
was released on parole and that he had approximately two years and four months 
remaining on his sentences when his release was revoked. Thus, according to the 
trial judge, when the pre-revocation warrant initiating the revocation process 
was issued, the remaining portion of Foster's sentence was less than the amount 
of time Foster spent on parole. The trial judge also concluded that Foster met 
the first condition entitling him to street-time credit. The trial judge found 
that Foster's convictions for possession of a controlled substance and delivery 
of a controlled substance did not prevent him from receiving street-time credit. 
Addressing Foster's conviction for aggravated assault with a deadly weapon, the 
trial judge stated the following:
At the time of 
Applicant's revocation, he was serving a sentence for aggravated assault with a 
deadly weapon. The Texas Department of Criminal Justice, Institutional Division 
and the Texas Department of Criminal Justice Parole Division cited this offense 
as the reason to deny Applicant street time credit. As this was an offense 
committed subsequent to the holding offense, it cannot be used to deny Applicant 
street time credit on these offenses. Ex parte Keller, 173 S.W.3d 492 (Tex. 
Crim. App. 2005).
Although we agree 
with the majority of the trial judge's findings, we conclude that the judge's 
reliance on our decision in Ex parte Keller 
to support his conclusion that relief is warranted is mistaken. Our decision 
in Ex 
parte Keller is inapplicable here because, in that case, we focused on the 
construction of the phrase "previously convicted of" in Section 508.149(a). (3) We held that 
"'previously convicted of' means that the person has been convicted of a violent 
felony before committing 
the holding offense." 
(4) In this case, the "previously convicted of" proviso in Section 
508.149(a) is irrelevant because Foster was serving his two-year sentence for 
aggravated assault with a deadly weapon when he was revoked. We recently clarified the 
interaction between Sections 508.283(c) and 
508.149(a), and in doing so, we stated: "The starting point is the version of 
Section 508.283(c) in effect when the inmate's parole or mandatory supervision 
is revoked. By incorporating Section 508.149(a) by reference, Section 508.283(c) 
invokes the version of Section 508.149(a) in effect when the inmate's parole or 
mandatory supervision is revoked." (5) Adhering to this process, 
we find that under the version of Section 508.149(a) that was in effect when 
Foster's parole was revoked, Foster, due to his conviction for aggravated 
assault, was serving a sentence for an offense listed in subsections (1) and (7) 
when his parole was revoked. (6) Foster, therefore, did not 
meet the first requirement entitling him to time credit under Section 508.283(c) 
because he was person described by Section 508.149(a) when his release was 
revoked. As a result, we find that Foster is not entitled to street-time credit 
for the period of time he spent on parole and deny relief. 
DATE DELIVERED: 
May 9, 2007
DO NOT PUBLISH 
1. Tex. Gov't Code Ann. § 501.0081 (Vernon 2004). 
2. Ex parte Noyola, 
215 S.W.3d 862, 865 (Tex. Crim. App. 2007) (citing Ex parte Spann, 
132 S.W.3d 390, 393 (Tex. Crim. App. 2004) (quoting Tex. Gov't Code Ann. 
§ 
508.283 
(Vernon 2004)); Ex parte Byrd, 
162 S.W.3d 250, 251-52 (Tex. Crim. App. 2005) (citing Acts 2001, 77th Leg., ch. 
856, § 
11)). 
3. 173 S.W.3d at 493-99. 
4. Id. at 497 
(emphasis in original). 
5. Ex 
parte Noyola, 215 S.W.3d at 867. 
6. Tex. Gov't Code Ann. § 508.149(c) (Vernon 2004) (last 
amended by Acts of 2001, 77th Leg., ch. 786, § 3, eff. June 14, 2001). 
