












 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-11-00029-CR
                                                ______________________________
 
 
                                     THE STATE OF
TEXAS, Appellant
 
                                                                V.
 
                                  LARRY BURNEL WILSON, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 336th
Judicial District Court
                                                             Fannin County, Texas
                                                            Trial
Court No. 20187
 
                                                         
                                         
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                                    Opinion by Chief Justice Morriss




                                                                   O P I N I O N
 
            The State of
Texas asserts on appeal that the time credit given to Larry Burnel Wilson for
time Wilson spent in a Substance Abuse Felony Punishment (SAFP) Facility made
his sentence illegal.  Finding that time
credits are not part of the sentence, but merely a credit to the sentence, we
conclude we have no jurisdiction to address the State’s attempted appeal
regarding the time credits to Wilson’s sentence.
            Wilson was
adjudicated[1] guilty of
aggravated assault causing serious bodily injury.  See
Tex. Penal Code Ann. § 22.02(a)(1)
(West 2011).  The trial court assessed a
five-year prison sentence as punishment but, in its judgment, credited Wilson’s
sentence with the time he spent in a SAFP Facility.  The State argues that the sentence is illegal
because the trial court erred in applying the SAFP time credit, as Texas law
allegedly did not permit such a credit at the time Wilson was placed on
community supervision.  Wilson contends
the State is not attacking the sentence assessed, but rather, is seeking to
attack the award of time credits to the sentence.  We agree.
            The State
may “appeal a sentence in a case on the ground that the sentence is
illegal.”  Tex. Code Crim. Proc. Ann. art. 44.01(b) (West Supp.
2010).  Appellate jurisdiction under the
statute “does not hinge on the legality of a sentence.”  State
v. Ross, 953 S.W.2d 748, 749 (Tex. Crim. App. 1997).  Rather, “jurisdiction turns on whether the
State appeals a sentence.”  Id. at
749–50; see also State v. Baize, 981 S.W.2d 204, 206 (Tex. Crim App. 1998).  To invoke jurisdiction under Article
44.01(b), the State must appeal the sentence, not something that merely affects
the sentence.  Ross, 953 S.W.2d at 750.
            We,
therefore, address the threshold jurisdictional question of whether the State
is appealing Wilson’s five-year sentence for aggravated assault causing serious
bodily injury and whether time credit is actually part of the sentence.  A sentence is only a part of the
judgment.  It is “that part of the
judgment, or order revoking a suspension of the imposition of a sentence, that
orders that the punishment be carried into execution in the manner prescribed
by law.”  Tex. Code Crim. Proc. Ann. art. 42.02 (West 2006).  As explained in Ross, a sentence is “nothing more than the portion of the judgment
setting out the terms of the punishment.” 
Ross, 953 S.W.2d at 750.  The Texas
Court of Criminal Appeals more recently clarified its holding in Ross, stating that a sentence “consists
of the facts of the punishment itself, including the date of commencement of
the sentence, its duration, and the concurrent or cumulative nature of the term
of confinement and the amount of fine, if any.” 
State v. Kersh, 127 S.W.3d
775, 777 (Tex. Crim. App. 2004) (duration of punishment for habitual and repeat
offenders is part of sentence).
            Here,
the State does not contend Wilson’s five-year sentence is illegal; that is, it
does not contend that this period of confinement falls outside the maximum or
minimum range of punishment.  See Mizell v. State, 119 S.W.3d 804, 806
(Tex. Crim. App. 2003) (sentence outside either maximum or minimum range of
punishment is illegal).  Rather, the
State contends Wilson should not have been credited with time spent in the SAFP
Facility.[2]
            For this
Court to have jurisdiction pursuant to Article 44.01(b), the time credit
awarded in the judgment against Wilson must be a part of the sentence.  While we find no cases directly on point, we
are guided by Ross, which recognized
the narrow definition of sentence as encompassing only a part of the judgment.
            Before the
1981 amendment of Article 42.02 of the Texas Code of Criminal Procedure, the
term “sentence” was more broadly defined as “the order of the court . . . pronouncing
the judgment and ordering the same to execute.”  Ross,
953 S.W.2d at 750 (citing Thornton v. State, 576 S.W.2d 407, 408 (Tex. Crim. App. 1979)); see Tex.
Code Crim. Proc. Ann. art.
42.02 (as enacted by Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, § 1, eff.
Jan. 1, 1966).  Now, however, the
sentence includes only the terms of punishment.[3]  Ross,
953 S.W.2d at 750.[4]  On the other hand, credit for time served in
a SAFP Facility affects the sentence, but
almost everything in the judgment affects the “sentence,”
including the jury verdict, the offense for which defendant is convicted and
affirmative findings.  For example, if
the defendant is found not guilty, he cannot be punished at all.  Likewise, the fact that he is convicted of
shoplifting, as opposed to capital murder, also necessarily affects his
sentence.  Like the jury verdict and the
offense for which a defendant is convicted, a deadly weapon finding also
impacts the sentence.  Yet, to consider
any of these findings as part of the “sentence” disregards the fact that the
legislature has narrowed, not broadened, the definition of “sentence.”
 
Id. at 750–51.[5]  A deadly weapon finding, although it affects
a defendant’s sentence, is not part of the sentence.  Id. at 752; Marshall v. State, 860 S.W.2d 142 (Tex.
App.—Dallas 1993, no pet.) (trial court not required to orally pronounce deadly
weapon finding; such finding not part of sentence).  Similarly, a time credit affects a
defendant’s sentence.  It does not
logically follow, however, that a time credit is part of the sentence.[6]  Even though the judgment must address any
credit for time served,[7]
such credit does not reflect the actual terms or facts of punishment as we
understand the sense of the Texas Court of Criminal Appeals in Ross.
            As
a practical matter, credit for time served is often included as a part of the
oral pronouncement of sentence in the defendant’s presence.  See,
e.g., Fragel v. State, Nos. 03-10-00285-CR,
03-10-00286-CR, 2011 WL 1237626 (Tex. App.—Austin Mar. 31, 2011, no pet.) (mem.
op., not designated for publication); Franqui
v. State, No. 03-08-00028-CR, 2009 WL 280981 (Tex. App.—Austin, Feb. 6,
2009, no pet.) (mem. op., not designated for publication); 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)
(written judgment modified to conform to sentence orally pronounced).[8]  These cases do not, however, address the
issue of whether time credit is part of a defendant’s sentence for purposes of
invoking appellate court jurisdiction pursuant to Article 44.01(b) of the Texas
Code of Criminal Procedure.
            In this
regard, the language of Article 42.03, Section 2 (pronouncing sentence; time;
credit for time spent in jail between arrest and sentence or pending appeal) is
instructive.  It provides, “[I]n all
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 spent . . . in jail . . . .”  Tex.
Code Crim. Proc. Ann. art. 42.03, § 2(a)(1) (West Supp. 2010) (emphasis added).  This language differentiates the sentence
itself from credit given on the sentence. 
If the time credit were part of the sentence, the above-quoted language
would be at least misleading.
            The
time credit accorded Wilson merely affects the sentence, but does not set forth
the terms or facts of punishment as we understand the meaning of the statutory
scheme and the Ross opinion.  Accordingly, the State is not appealing the
sentence on the grounds that it was illegal. 
See Tex. Code Crim. Proc. Ann. art. 44.01(b).  Rather, this appeal involves the propriety of
granting credit for time served in a SAFP Facility.  This Court is therefore
without jurisdiction to hear the State’s appeal.
            We dismiss
this appeal for want of jurisdiction.
 
 
 
                                                                                    Josh
R. Morriss, III
                                                                                    Chief
Justice
 
Date Submitted:          July
28, 2011   
Date Decided:             August
24, 2011
 
Publish
 
 
 




[1]In
2002, Wilson had pled guilty to the offense and was placed on ten years’
deferred adjudication community supervision. 
In 2009, the conditions of Wilson’s community supervision were modified
to require completion of a program of treatment in a SAFP Facility, to be
followed thereafter by a continuum of care program.  Wilson failed to complete the continuum of
care program on release from the SAFP Facility in 2010.  Wilson pled true to failing to complete the
continuum of care program, but pled not true to failing to complete his time in
the SAFP Facility.  


[2]Since
we conclude that we have no jurisdiction to address any substantive issue in
this attempted appeal, we do not address the State’s claim that the trial court
had no discretion or authority to grant Wilson credit for his SAFP Facility time
and, thus, violated a statutory duty not to grant credit for that time.  See
Ross, 953 S.W.2d at 751–52
(suggesting mandamus remedy may be available).
 


[3]Such
terms include the date the sentence is to commence, its duration, and the
“concurrent or cumulative nature of the term of confinement and the amount of
the fine, if any.”  Kersh, 127 S.W.3d at 777.
 


[4]The
1981 amendment to Article 42.02 of the Texas Code of Criminal Procedure
narrowed the definition of sentence to include “that part of the judgment . . .
order[ing] that the punishment be carried into execution in the manner
prescribed by law.”  Ross, 953 S.W.2d at 750 (citing Tex.
Code Crim. Proc. Ann. art. 42.02 (as amended by Act of June 1, 1981,
67th Leg., R.S., ch. 291, § 112, Tex. Gen. Laws 761, 809, eff. Sept. 1, 1981)).
 


[5]In
Ross, for example, the sentence
“would include the facts that
appellant is to serve sixteen years in the penitentiary beginning July 28,
1995, that his term is concurrent and that he must pay a $500 fine.”  Ross,
953 S.W.2d at 750.
 


[6]The
case before us, while apparently similar to Collins
v. State, 240 S.W.3d 925 (Tex. Crim. App. 2007), in which the jurisdiction
of the court of appeals to hear a State’s appeal was addressed, is distinguishable
from Collins.  Collins
involved a defendant who entered into a plea bargain by which he would plead
guilty and receive time credit in the amount of thirty-four days for pretrial
jail time.  After judgment was entered,
the defendant filed a motion for judgment nunc pro tunc, seeking additional
time credits to his sentence.  The trial
court entered a judgment nunc pro tunc giving additional credit for pretrial
jail time.  The Texas Court of Criminal
Appeals held that the court of appeals had jurisdiction to hear the State’s
appeal pursuant to Article 44.01(a)(2), because the order of the trial court
modified the judgment.  Id. at 927.  Article 44.01(a)(2) permits an appeal by the
State in a criminal case if the order arrests or modifies a judgment.  Tex.
Code Crim. Proc. Ann. art. 44.01(a)(2) (West Supp. 2010).  Collins
stands for the proposition that the State may appeal when a trial court
modifies a judgment, not for the proposition that the State may appeal when
time credits have been given.  Here, the
State attempts to appeal a sentence on the basis that it is illegal, under the
authority of Article 44.01(b), a different statutory authorization for appeal.
 


[7]See Tex.
Code Crim. Proc. Ann. art. 42.01, § 1(18) (West Supp. 2010).  Credit for time served is an element of the
judgment.  Collins, 240 S.W.3d at 928.


[8]Although
these unpublished cases have no precedential value, we may take guidance from
them “as an aid in developing reasoning that may be employed.”  Carillo
v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d). 


