      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-18-00775-CR



                                        Ex parte Raul Alvarez


               FROM COUNTY COURT AT LAW NO. 9 OF TRAVIS COUNTY
         NO. C-1-CR-18-100055, HONORABLE KIM WILLIAMS, JUDGE PRESIDING



                                             OPINION


                Appellant Raul Alvarez was convicted of the offense of driving while intoxicated

and sentenced to 120 days’ confinement in county jail. Alvarez appealed his conviction and was

never in custody while his appeal was pending. After his conviction was affirmed on appeal, Alvarez

was ordered to begin serving his sentence. Alvarez subsequently filed an application for writ of habeas

corpus, asserting that he should have been in custody while his appeal was pending and was thus

entitled to credit for time served. The trial court denied relief. We will affirm the trial court’s order.


                                           BACKGROUND

                The record reflects that Alvarez was convicted and sentenced on December 6, 2016,

with the 120-day jail sentence to commence on January 3, 2017. On December 21, 2016, Alvarez

filed both a notice of appeal and a “motion for reasonable bail pending appeal.” That same day, the

trial court granted Alvarez’s motion, setting bail in the amount of $3,000 with the condition that

Alvarez be prohibited from driving without an ignition interlock device, valid driver’s license, and
insurance. On December 27, 2016, a Travis County deputy clerk issued a recall of the trial court’s

order committing Alvarez to the custody of the Travis County Sheriff.

               The recall of the commitment order was indisputably improper, because Alvarez

never paid the bail amount or executed an appeal bond. Instead, Alvarez decided that he wanted to

serve his sentence on the date it was scheduled to begin while his appeal was pending. However,

instead of notifying the trial court that he had changed his mind, Alvarez simply reported to the

bonding desk at the Blackwell-Thurman Criminal Justice Center on January 3, 2017, and attempted

to turn himself in to the Travis County Sheriff’s Office. Sheriff’s deputies informed Alvarez that

there was “nothing in the system” instructing them to take him into custody and advised him to

return the following day. Alvarez returned on January 4 and was again told that he was “not in the

system.” This time, Alvarez was advised to “just go home.” Alvarez returned to his home in Houston,

free from custody, unsupervised by the trial court or any other government entity, and under no

appeal bond conditions.

               On July 5, 2018, Alvarez’s conviction was affirmed on appeal. See Alvarez v. State,

No. 13-17-00042-CR, 2018 Tex. App. LEXIS 5029 (Tex. App.—Corpus Christi July 5, 2018,

no pet.) (mem. op., not designated for publication). Mandate issued on September 18, 2018. On

September 20, 2018, the trial court issued a commitment order for Alvarez to begin serving his

sentence on October 20, 2018. That date was later adjusted to November 15, 2018. On that

date, Alvarez voluntarily surrendered himself to the Travis County Sheriff’s Office. Also on that

date, the trial court, after a hearing, denied Alvarez’s application for writ of habeas corpus. This

appeal followed.



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                                         JURISDICTION

               Texas Code of Criminal Procedure article 11.09 provides that a person who is

“confined on a charge of misdemeanor” may apply for habeas relief “to the county judge of

the county in which the misdemeanor is charged to have been committed.” Tex. Code Crim. Proc.

art. 11.09. The Court of Criminal Appeals has held that “appeals from denial of relief sought in a

misdemeanor post conviction writ of habeas corpus should be directed to the courts of appeals.”

Ex parte Jordan, 659 S.W.2d 827, 828 (Tex. Crim. App. 1983). Accordingly, we have jurisdiction

to review the denial of relief here. See id.; see also Ex parte Kulow, 563 S.W.3d 383 (Tex.

App.—Houston [1st Dist.] 2018, no pet.) (reviewing similar issue of trial court’s denial of habeas

relief from sheriff’s decision to change policy regarding “good-time credit”).


                                    STANDARD OF REVIEW

               To prevail in a post-conviction writ of habeas corpus proceeding, the applicant bears

the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief.

Ex parte Lewis, 537 S.W.3d 917, 921 (Tex. Crim. App. 2017); Ex parte Torres, 483 S.W.3d 35, 43

(Tex. Crim. App. 2016); Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In

reviewing a trial court’s decision to grant or deny habeas corpus relief, we view the facts in the

light most favorable to the trial court’s ruling and, absent an abuse of discretion, uphold the ruling.

Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Ali, 368 S.W.3d 827, 830

(Tex. App.—Austin 2012, pet. ref’d) see Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App.

2013). In conducting our review, we afford almost total deference to the trial court’s determination

of the historical facts that are supported by the record, especially when the fact findings are based

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on an evaluation of credibility and demeanor. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim.

App. 2011); Ex parte Vasquez, 499 S.W.3d 602, 612 (Tex. App.—Houston [1st Dist.] 2016, pet.

ref’d). We afford the same amount of deference to the trial judge’s application of the law to the

facts, if the resolution of the ultimate question turns on an evaluation of witness credibility and

demeanor. Ali, 368 S.W.3d at 831. However, where the resolution of the ultimate question turns

on an application of legal standards, we review the ruling de novo. Ex parte Martin, 6 S.W.3d 524,

526 (Tex. Crim. App. 1999); Ex parte Nelson, 546 S.W.3d 742, 746 (Tex. App.—Houston [1st Dist.]

2018, no pet.); Ali, 368 S.W.3d at 831. In this case, because the facts are undisputed, we review

de novo the legal question of whether Alvarez was entitled to the relief sought in this proceeding.


                                           DISCUSSION

               In arguing that he is entitled to receive credit for time served, Alvarez relies on a line

of cases from the Court of Criminal Appeals in which “convicted inmates were inadvertently

released from custody when they should have remained serving their legitimately imposed

sentences.” Ex parte Thiles, 333 S.W.3d 148, 150 (Tex. Crim. App. 2011) (citing Ex parte Baker,

297 S.W.3d 256, 259 (Tex. Crim. App. 2009); Ex parte Rowe, 277 S.W.3d 18, 19-20 (Tex. Crim.

App. 2009); Ex parte Hale, 117 S.W.3d 866, 873 (Tex. Crim. App. 2003)). “In such cases of

erroneous release, [the court has] consistently held that ‘an individual is entitled to time credit

toward the expiration or discharge of a sentence when the individual, through no fault of his or her

own, was erroneously released from custody by the State.’” Id. (quoting Baker, 297 S.W.3d at 258).

               In Thiles, for example, the habeas applicant was released on bond in 1985 after the

intermediate court of appeals had reversed his conviction and the State’s appeal of the reversal was

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pending before the Court of Criminal Appeals. Id. at 149. In 1986, the Court of Criminal Appeals

reversed the judgment of the intermediate court and remanded the case to that court to address

Thiles’s remaining points of error. Id. The intermediate court then affirmed Thiles’s conviction,

and mandate issued in 1987. Id. However, no arrest warrant was issued until 2007. Id.

               In his habeas application, Thiles argued that he was entitled to receive credit from the

time that mandate had issued until the time that he had been arrested, and the Court of Criminal

Appeals agreed. Id. at 150. The court observed that although Thiles was “legitimately released on

an appeal bond,” he “should have been re-incarcerated once his conviction was final in 1987.” Id.

at 151. However, because of the failure of the State to issue a warrant until 2007, “the applicant was

never informed that a mandate of affirmance had issued in his case. . . . Instead, he was allowed to

remain at large erroneously, without his knowledge and through no fault of his own.” Id. at 152.

The court further observed that Thiles “never violated the conditions of his appellate bond, having

never been called to appear before the court upon the affirmance of his conviction on appeal.” Id.

The court added that “[t]he State, the applicant, and the trial court all agree that the principle of

reasonableness underlying the erroneous-release cases should apply on the facts of this case, and that

the applicant should be granted the relief.” Id. at 151–52. “Under these particular circumstances,”

the court concluded, Thiles was “entitled to day-for-day time credit from the time the appellate

mandate issued to the time he was finally arrested on the warrant.” Id. at 152.

               Although Alvarez acknowledges that his case is not, strictly speaking, an erroneous-

release case, he nevertheless asserts that we should apply “the same principles and logic in this

matter.” In Alvarez’s view, “the fact that he remained out of custody, through no fault of his own,

due to error and inaction by the State, was tantamount to an erroneous release.”

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               We disagree. As an initial matter, Alvarez was never in custody while his appeal was

pending. Thus, cases that involve the erroneous release of a prisoner from custody are inapplicable.

To allow Alvarez to receive jail-time credit based on a deputy clerk’s mistake, when Alvarez was

never in jail while his appeal was pending but was instead completely free and unsupervised,

would effectively enable Alvarez to avoid serving his sentence altogether. Such a result is not

supported by the erroneous-release line of cases. Cf. Hale, 117 S.W.3d at 870 (allowing inmate to

receive credit for time served when erroneously released from custody because release was not

“unconstitutional exercise[] of the executive power of clemency by local officials” and “did not

place in the hands of [local officials] the power to defeat” trial court’s judgment).

               In contending otherwise, Alvarez relies primarily on Thiles, supra, and Ex parte

Blackwell, No. AP-76,602, 2011 Tex. Crim. App. Unpub. LEXIS 700 (Tex. Crim. App. Sep. 14, 2011)

(per curiam) (op. on reh’g, not designated for publication). In Blackwell, the habeas applicant was

convicted of sexual assault of a child and sentenced to ten years’ imprisonment in December 1992.

Id. at *1. Blackwell was out on bond when his conviction was affirmed on appeal and mandate

issued in April 1995. Id. at *1–2. In May and July 1995, Blackwell attempted to turn himself into

the Travis County Sheriff’s Office but was advised that he could not be taken into custody until a

capias was issued. Id. at *2. A capias was issued in October 1995, but Blackwell was not arrested

until March 2011. Id. Blackwell argued that he was entitled to credit for the time that he had been

out of custody. Id. at *1. The Court of Criminal Appeals agreed and granted relief, following the

reasoning it had adopted in Thiles. Id. at *2–3. As it had in Thiles, the court noted that Blackwell

“did not violate any conditions of his bond” and “was improperly out of custody on bond through

no fault of his own.” Id. at *3. The court added that during the time of Blackwell’s release, “[h]e

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was not attempting to conceal himself, and for the fifteen years between the issuance of the capias

in 1995 and the service of that capias in 2011, the State made no efforts to secure Applicant so that

he might begin to serve his sentence.” Id.

               There are important distinctions between Thiles and Blackwell and the case before

us. In both Thiles and Blackwell, the applicants had been released on appeal bonds, and the court

in each case noted that the applicant had not violated the conditions of his bond during the time of

his release. Here, Alvarez never paid the bond amount or executed an appeal bond. Thus, unlike

in Thiles and Blackwell, we cannot credit Alvarez for complying with the conditions of a bond.

Additionally, in both Thiles and Blackwell, the State had failed to take the applicant into custody

after his conviction had been affirmed and mandate had issued, and that failure lasted approximately

twenty years in Thiles and fifteen years in Blackwell. Here, in contrast, the record reflects that

mandate issued on September 18, 2018, and capias issued two days later, on September 20, 2018,

with instructions that Alvarez begin serving his sentence one month later, on October 20. Although

that date was later adjusted to November 15, 2018, there is no indication in the record that the State

failed to take appropriate action to place Alvarez into custody once mandate had issued. Instead,

the State’s failure was limited to the period of time when Alvarez’s appeal was pending and his

conviction was not final.

               We also observe that in Thiles, the applicant’s conviction had been reversed at the

time he was released on bond. Thiles, 333 S.W.3d at 149. As Presiding Judge Keller explained in

a concurring opinion, Thiles had “prevailed at the court of appeals. At the time he was released from

custody, he had already succeeded in his attempt to procure relief and he no longer stood convicted.”

Id. at 154 (Keller, P.J., concurring). Alvarez, in contrast, has not prevailed at any level.

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               Moreover, in Thiles, both the State and the trial court had agreed with the applicant

that he was entitled to relief. Id. at 152. Under the circumstances, such agreement was not surprising.

As the Court of Criminal Appeals explained, “From the time the applicant was released on the

appeal bond, January 25, 1985, until the date of his arrest May 21, 2009, he accrued no additional

criminal convictions. He remained a productive member of society during that time, lived openly

under his own name, and made no effort to conceal his whereabouts.” Id. at 150. Similarly in

Blackwell, the Court of Criminal Appeals observed that during the time of Blackwell’s release, he

“was serving a deferred adjudication community supervision sentence in an unrelated case,” “was

complying with the conditions of that supervision, including reporting to his supervising officer,”

and “successfully completed the supervision for that other sentence.” Blackwell, 2011 Tex. Crim.

App. Unpub. LEXIS 700, at *2. In Alvarez’s case, we know very little about what he did while he

was out of custody, because he had no obligation to report to anyone and had no bond conditions

with which he was required to comply.

               In summary, Thiles and Blackwell differ in many respects from this case, including

that Alvarez was never in custody, he was not out on an appeal bond and thus cannot be credited

with complying with any bond conditions, and the State’s failure to take Alvarez into custody

occurred while his appeal was pending rather than after his conviction had become final. Under

these circumstances, we cannot conclude that Alvarez is entitled to the same relief that the Court

of Criminal Appeals granted to the applicants in Thiles and Blackwell.

               Because Alvarez was never in custody while his appeal was pending, he should not

be entitled to credit for time served. As the Court of Criminal Appeals explained in a similar case,



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“Any other holding . . . would permit ministerial officers to thwart and nullify the judgment of

courts.” Ex parte Francis, 510 S.W.2d 345, 346 (Tex. Crim. App. 1974). The Court added, “The

people of a State are interested in punishment of those convicted of crimes and [that] public interest

should not be subservient to illegal acts and default of officers who have charge of prisoners.” Id.

In this case, a jury convicted Alvarez of driving while intoxicated and the trial court sentenced him

to 120 days’ confinement in county jail. Alvarez should not be allowed to avoid his sentence simply

because a deputy clerk erroneously recalled the trial court’s commitment order.


                                          CONCLUSION

               On this record, we conclude that the trial court did not abuse its discretion in denying

Alvarez’s application for writ of habeas corpus. Accordingly, we affirm the trial court’s order.



                                               __________________________________________

                                               Gisela D. Triana, Justice

Before Justices Goodwin, Baker, and Triana

Affirmed

Filed: March 7, 2019

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