      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00272-CR



                               James Kevin Blackerby, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-09-904117, HONORABLE DAVID CRAIN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant, James Kevin Blackerby, appeals from a judgment revoking community

supervision for the offense of intoxication manslaughter. In three issues, appellant complains that

the trial court erred in failing to award him certain jail-time credit and in signing a judgment that

recited more violations of his conditions of probation than were stated orally at the conclusion of the

revocation hearing. We will overrule appellant’s first and second issues, sustain his third issue, and

modify the judgment accordingly.


                      FACTUAL AND PROCEDURAL BACKGROUND

               This case arises from a fatal motor vehicle accident. Appellant was arrested for

felony driving while intoxicated (DWI) on August 2, 2008, the date of the accident. See Tex. Penal

Code Ann. §§ 49.04, .09(b) (West Supp. 2012). He pleaded guilty to that offense, and the trial court

sentenced him to four years in prison, probated to the same term of community supervision. In
May 2009 appellant was arrested on a warrant issued on the State’s motion to revoke his supervision.

While appellant was incarcerated awaiting the revocation hearing, the State indicted and arrested him

for manslaughter, intoxication manslaughter, and criminally negligent homicide arising out of the

same incident as the DWI. See id. §§ 49.08, 19.04, 19.05 (West 2011). In August 2010, the trial

court entered a judgment revoking appellant’s community supervision for felony DWI and imposing

a three-year sentence. Appellant simultaneously accepted a plea agreement in which he pleaded

guilty to the sole charge of intoxication manslaughter.1 Under this agreement, the trial court would

sentence him to ten years’ imprisonment, probated to six years of community supervision. Because

the community supervision period for intoxication manslaughter was to run consecutive to

appellant’s three-year prison sentence for felony DWI, sentencing was delayed until appellant was

paroled on the DWI charge.

               Appellant was granted parole on the DWI sentence in December 2010. At the

sentencing hearing on the intoxication manslaughter charge, the trial court assessed punishment in

accordance with the plea agreement: ten years’ imprisonment, suspended, and placement on

community supervision for a term of six years. In February 2011, the State moved to revoke

appellant’s community supervision on that charge for several failures to comply with supervision

conditions. The trial judge conducted a hearing in March 2011, found that the State proved “at least”

three of the grounds alleged in the motion to revoke, and entered a judgment revoking appellant’s

community supervision and assessing a sentence of eight years’ imprisonment. The judgment




       1
         Pursuant to the plea bargain, the State waived the remaining counts charging manslaughter
and criminally negligent homicide.

                                                 2
revoking community supervision on the intoxication-manslaughter conviction credited appellant’s

sentence with the time he had spent in jail for three periods: June 22, 2009 to August 26, 2010

(the date of indictment on the intoxication manslaughter charge to the date of his guilty plea),

October 27, 2010 to December 1, 2010 (it is unclear what this time period represents, but no one

complains about it on appeal), and February 14, 2011 to March 29, 2011 (the date of his arrest on

the motion to revoke on the intoxication manslaughter charge until his sentencing). One month later,

after filing a notice of appeal, appellant’s appellate counsel filed a motion for judgment nunc pro

tunc asking the trial court to award appellant credit for any and all time he spent in jail during

two additional periods: August 2, 2008 to June 22, 2009 (the date of appellant’s arrest on the DWI

charge until the indictment on the intoxication manslaughter charge), as well as August 26, 2010 to

October 27, 2010 (the time for which he was technically on personal bond but remained incarcerated

until the court issued another capias on the intoxication manslaughter charge). The trial court denied

the motion. On the same day, however, the court signed an “Order Allowing Defendant Credit for

Back Time on Sentence” (Back Time Order). The Back Time Order purported to alter both the

beginning and ending dates for the first period of jail-time credit recited in the revocation judgment:

it moved the beginning date forward to May 19, 2009 (benefitting appellant by 24 days) and the

ending date forward to July 14, 2009 (prejudicing appellant by 43 days). Appellant subsequently

perfected this appeal of the judgment revoking his community supervision.


                                           DISCUSSION

               Appellant asserts three issues on appeal. In his first issue, he argues that the trial

court erred in the Back Time Order by removing some of the jail-time credit that had been awarded

                                                   3
in the revocation judgment. At the hearing on appellant’s motion for judgment nunc pro tunc

regarding time credits relating to his DWI incarceration, the prosecutor informed the trial court

that the State agreed to credit appellant’s sentence on intoxication manslaughter from the

date of indictment to the date of appellant’s guilty plea.          The prosecutor then told the

court—incorrectly—that appellant had pleaded guilty on July 14, 2010; in fact, the record reflects

that the guilty-plea date was August 26, 2010. The State does not dispute that appellant pleaded

guilty on August 26 instead of July 14. The judgment revoking community supervision also recites

the correct indictment date.

               The trial court is required by law to credit the sentence of a criminal defendant for

time the defendant spent “in jail for the case . . . from the time of his arrest and confinement until

his sentence by the trial court.” Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1) (West Supp.

2012); see also Tex. R. App. P. 23.2(b); Sanders v. State, No. 05-02-01620-CR, 2004 WL 60762,

at *6 (Tex. App.—Dallas Jan. 14, 2004, no pet.) (mem. op., not designated for publication) (“The

statute is mandatory.”) (citing Guerra v. State, 518 S.W.2d 815, 817 (Tex. Crim. App. 1975)). The

credit for time served must be contained in the trial court’s judgment. See Tex. Code Crim. Proc.

Ann. art. 42.01, §§ 1, 18 (West Supp. 2012) (“The judgment shall reflect . . . any credit for

time served [.]”)

               We hold that the Back Time Order was not effective to modify the revocation

judgment of December 15, 2010. The Back Time Order does not expressly purport to amend or

supplement the judgment, but only recites that the court grants the defendant’s motion for additional

time credits “not allowed at the time the Sentence of this court was pronounced.” Moreover, the



                                                  4
code of criminal procedure mandates that “[t]he sentence served shall be based on information

contained in the judgment.” Tex. Code Crim. Proc. Ann. art. 42.01, §1 (emphasis added). A trial

court may modify jail-time credit awarded in a judgment of conviction by entering a judgment nunc

pro tunc if the dates reflected in the judgment are incorrect due to a clerical error. See In re Brown,

343 S.W.3d 803, 805 (Tex. Crim. App. 2011). When that occurs, the judgment nunc pro tunc

becomes the “true and correct final judgment” and supplants the original judgment from the date the

original judgment was entered. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994);

Daniels v. Commission for Lawyer Discipline, 142 S.W.3d 565, 573 (Tex. App.—Texarkana 2004,

no pet.). We can find no Texas authority allowing a trial court to use a post-judgment order to

modify or supplement a previously entered judgment without entering an amended judgment that

fully replaces the original one. See, e.g., Tex R. App. P. 23.

               In contrast, a few other states, including Oregon, permit trial courts to enter a

“supplemental judgment” to dispose of matters not addressed in the “general” judgment, such

as ordering restitution or correcting jail-time credit. See, e.g., State v. Portis, 236 P.3d 718, 720

(Or. 2010) (“The trial court thereafter entered a supplemental judgment providing that defendant

‘may not be considered’ for the additional earned time credit.”); State v. Bassett, 259 P.3d 953, 954

(Or. Ct. App. 2011) (“[T]he trial court issued a supplemental judgment ordering defendant to pay

restitution.”). However, those supplemental judgments are expressly authorized by statute. See, e.g.,

Or. Rev. Stat. Ann. § 18.01(17) (West 2012) (“‘Supplemental Judgment’ means a judgment that may

be rendered after a general judgment pursuant to a legal authority.”). Supplemental judgments are

not authorized in Texas. Therefore, we conclude that the Back Time Order was ineffective to modify



                                                  5
the time credits recited in the original revocation judgment. Appellant’s time credits remain as so

recited. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1. We overrule appellant’s first issue.

               In his second issue, appellant challenges the trial court’s refusal to apply jail-time

credit to his intoxication-manslaughter sentence for the time he spent in jail on the DWI charge. We

understand appellant to be arguing that the charge of felony DWI and the charge of intoxication

manslaughter constitute the same “case” for purposes of the time-credit statute because both charges

arose from the same facts.

               Initially, we note that appellant sought this additional jail-time credit via a motion for

judgment nunc pro tunc. However, the purpose of a nunc pro tunc judgment is to provide a method

for trial courts to correct the record when there is a discrepancy between the judgment as pronounced

in court and the judgment reflected in the record. Blanton v. State, 369 S.W.3d 894, 897-98 (Tex.

Crim. App. 2012); see, e.g., Tex. R. App. P. 23.1. “The corrections must reflect the judgment that

was actually rendered but that for some reason was not properly entered into the record at the time

of the judgment.” Blanton, 369 S.W.3d at 898; Jones v. State, 795 S.W.2d 199, 200 (Tex. Crim.

App. 1990). Corrections to the record are limited to clerical errors and are not appropriate for errors

involving judicial reasoning. Blanton, 369 S.W.3d at 898; Ex parte Poe, 751 S.W.2d 873, 876 (Tex.

Crim. App. 1988). If the trial judge must “exercise discretion or resolve conflicting legal claims,”

then he or she has exercised judicial reasoning. Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim.

App. 2007). A nunc pro tunc judgment is improper if it modifies, changes, or alters the original

judgment pronounced in court, or has the effect of making a new order. Blanton, 369 S.W.3d at 898;

Ex parte Dickerson, 702 S.W.2d 657, 658 (Tex. Crim. App. 1986).



                                                   6
               Here, appellant’s request for additional jail-time credit involved “judicial

reasoning”—a judicial determination of whether the time appellant was incarcerated on the DWI

charge was incarceration for the “same” offense as the intoxication manslaughter charge and,

therefore, whether appellant was entitled to that additional jail-time credit. Thus, the trial court

could not have granted appellant’s motion and issued a judgment nunc pro tunc crediting the

jail-time appellant sought.

               To the extent appellant’s claim has merit, the proper avenue of redress was either by

appeal or by an application for a writ of habeas corpus, not a judgment nunc pro tunc. However,

while appellant raises this issue in the instant appeal, he failed to timely raise his claim for this

jail-time credit in the trial court. See Tex. R. App. P. 33.1(a) (to preserve complaint for appellate

review, party must have presented specific and timely request, motion, or objection to trial court and,

further, must have obtained adverse ruling). Appellant neither requested the time credit nor objected

to its absence when the trial court imposed sentence, but only raised it a month after sentencing and

after the notice of appeal had been filed. Preservation of error is a systemic requirement on appeal.

Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009); Haley v. State, 173 S.W.3d 510, 515

(Tex. Crim. App. 2005). A reviewing court should not address the merits of an issue that has not

been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010) (citing

Ford, 305 S.W.3d at 532). Accordingly, we hold that appellant failed to properly preserve this

complaint for appellate review.

               Even if appellant had preserved the complaint, however, his issue would fail. The

thrust of appellant’s argument is that this situation was not anticipated by the statute, and he urges



                                                  7
us to construe article 42.03 to prevent the State from “manipulating” jail-time credits by

subsequently adding additional charges that arise out of the same set of facts. The State responds

that the two charges are not the same “case” because DWI is not a lesser-included offense of

intoxication manslaughter, and they are therefore different crimes for double-jeopardy purposes. See

Lomax v. State, 233 S.W.3d 302, 311 (Tex. Crim. App. 2007). The record shows that appellant was

initially arrested on the sole charge of felony DWI and was not indicted for or served with a capias

on the intoxication manslaughter charge until after he was later incarcerated awaiting a hearing on

the State’s motion to revoke his community supervision on the DWI conviction.

                We agree with the State. The court of criminal appeals has held that article 42.03 of

the code of criminal procedure requires that the trial court credit a defendant’s sentence only for time

spent in jail between arrest and confinement and subsequent sentence on a particular charge.

Ex parte Crossley, 586 S.W.2d 545, 546 (Tex. Crim. App. 1979) (“On the face of it, the applicant

was not confined in the same cause for which he was sentenced.”). Several courts of appeals have

rejected efforts by appellants who sought jail-time credit for the time spent in jail on prior, factually

unrelated offenses. See, e.g., Collins v. State, 318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet.

ref’d) (“[T]he credit at issue relates not just to any time the defendant spent incarcerated before

conviction. Rather it is the time one is incarcerated for the case in which he is ultimately tried and

convicted.”); Martinez v. State, No. 13-04-00085-CR, 2005 WL 1805500, at *3 (Tex. App.—Corpus

Christi July 28, 2005, no pet.) (mem. op., not designated for publication) (“A trial court must award

credit for time served for the same offense and not time incarcerated pre-trial for independent

offenses.”). We have found no other court of appeals that has interpreted article 42.03 in a case



                                                   8
where two offenses arising from the same set of facts were charged as separate cases and proceeded

separately in the trial court.

                Although the procedural history of this case is unusual, the relatedness of the facts

underlying both charges is immaterial vis-à-vis appellant’s right to jail-time credit. Because the State

is not barred by double jeopardy from bringing the two charges independently even though they arose

from the same facts, the time appellant spent in jail on the DWI charge was not for the same “case”

as the later-filed intoxication manslaughter charge. Moreover, appellant has already received credit

for all the time he spent in jail after he was arrested on the intoxication manslaughter charge, and the

State also agreed to credit his sentence with additional time back to the date of his indictment. We

overrule appellant’s second issue.

                In his third issue, appellant draws our attention to a clerical error in the judgment of

revocation regarding the trial court’s findings of appellant’s violations of conditions of supervision.

The written judgment revoking appellant’s supervision on the intoxication manslaughter charge lists

all seven violations alleged by the State in its motion to revoke, but the record reflects that the trial

court orally found only three violations when revoking appellant’s community supervision.

Generally, when a trial judge’s orally pronounced sentence conflicts with the subsequent written

judgment, the oral pronouncement controls. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim.

App. 2004). Here, the record of the hearing clearly reflects that the judge found three of the State’s

allegations to be true and did not make any findings as to the other allegations. We sustain

appellant’s third issue and modify the Judgment Revoking Community Supervision to reflect only




                                                   9
the three grounds orally pronounced by the trial judge.2 See Beltran v. State, No. 03-10-00716-CR,

2011 WL 2297781, at *1 (Tex. App.—Austin June 9, 2011, no pet.) (mem. op., not designated for

publication) (“The judgment erroneously recites that the court found all nine of the alleged violations

to be true, when in fact that court made no findings as to four of the allegations.”).


                                          CONCLUSION

                Having overruled appellant’s first and second issues and sustained his third issue, we

modify the trial court’s judgment to delete the four grounds for revocation of community supervision

that were not orally pronounced. As so modified, we affirm the trial court’s judgment.



                                        ________________________________________

                                        J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Henson and Rose

Modified and, as Modified, Affirmed

Filed: December 5, 2012

Do Not Publish




       2
         The three violations found by the trial court at the hearing were: (1) failing to report to the
Hays County Probation Officer on January 20, 2011, and February 10, 2011, (2) moving without
asking permission of his supervision officer, (3) failing to timely install an in-home monitoring
device. Although the trial judge stated that “at least” these three violations had occurred, he never
found or mentioned the other four alleged violations. Thus, they cannot support the trial court’s
revocation of appellant’s community supervision and should not be reflected in the written judgment.

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