           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. AP-76,031



                 EX PARTE DAVID WILLIAM BAKER, Applicant



            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NUMBER 3820-A IN THE 216TH DISTRICT COURT
                      FROM GILLESPIE COUNTY



        K EASLER, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, J OHNSON, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. K ELLER, P.J.,
filed a dissenting opinion.

                                      OPINION

       Harris County officials released David William Baker from custody, even though he

did not complete his two-year-state-jail sentence from Gillespie County. We hold that Baker

is entitled to credit toward the expiration of his sentence for the time that he was out of

custody following his erroneous release.      Crediting his sentence accordingly, Baker

discharged his sentence in September 2003. Therefore, when authorities arrested him in

2007 in this cause, Baker was illegally confined.

                                      Background
                                                                                   BAKER—2
       Baker was charged in Gillespie County with possessing less than one gram of cocaine,

a state jail felony offense. On September 1, 1998, Baker pled no contest to the charge. The

trial judge deferred adjudication and placed Baker on community supervision for three years.

       In June 2001, the State filed a motion to adjudicate guilt, alleging, among other things,

that Baker violated the terms and conditions of his supervision by committing felony theft

in Harris County. On September 13, 2001, after finding the State’s allegations true, the trial

judge revoked Baker’s community supervision and sentenced him to two years’ confinement

in a state jail facility. The trial judge did not award Baker any presentence time credit, so his

presumptive discharge date was September 12, 2003.

       Shortly after his adjudication in Gillespie County, authorities transferred Baker to

Harris County to stand trial on the felony theft charge. Pursuant to a plea agreement with the

State, Baker pled guilty to the lesser-included offense of misdemeanor theft. The trial judge

sentenced him to 251 days time served. At that time, Harris County officials checked to see

if Baker had any outstanding warrants or detainers. Finding none, they released Baker from

custody. Baker and his father, who represented Baker in both the Gillespie and Harris

County cases, knew that Baker had approximately twenty-three months left to serve on the

two-year-state-jail sentence; however, neither Baker nor his father contacted the trial judge

or law enforcement authorities.

       The following summer, in July 2002, almost nine months after Harris County released

him, Baker accompanied his father to China. Approximately a month later, on September
                                                                                  BAKER—3
26, 2002, Gillespie County officials learned that Baker was erroneously released and

obtained a warrant for his arrest. Upon his return to the United States, in October 2007, six

years after his erroneous release, Baker was arrested.

       In November 2007, Baker filed an application for a writ of habeas corpus. In his sole

ground for relief, Baker alleged that he is being illegally confined. Specifically, Baker

claimed that he should receive credit toward the expiration of his two-year-state-jail sentence

for the time he was out of custody following his erroneous release. If credited with this time,

Baker’s sentence would be discharged. The trial judge entered stipulated findings of fact,

which we will defer to because they are supported by the record.1 The judge, however, did

not make any conclusions of law or recommend that we grant or deny relief. The judge, with

the State’s consent, released Baker on a surety bond in January 2008 pending our resolution

of Baker’s habeas application.

                                          Analysis

       Ex parte Hale and Ex parte Rowe stand for the proposition 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.2

       In Ex parte Hale, Hale was released to mandatory supervision before he was legally




       1
           Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
       2
        117 S.W.3d 866, 869-72 (Tex. Crim. App. 2003); No. AP-76,088, 2009 Tex.
Crim. App. LEXIS 150, *3-4 (Tex. Crim. App. Feb. 9, 2009).
                                                                                 BAKER—4
eligible for release.3 He sought habeas corpus relief, claiming that he was entitled to credit

for the time that he was out of custody following his erroneous release.4 We agreed, but in

the process we overruled over forty years of case law that granted such credit

unconditionally.5 We determined that the law that applies to an individual who was lawfully

released to mandatory supervision and later revoked applies to Hale.6 Therefore, we applied

the time credit statute in effect when Hale’s erroneous release was revoked, Texas

Government Code Section 508.283.7 After calculating Hale’s time according to Section

508.2083, we concluded that, although Hale did not discharge his second, stacked sentence,

he discharged his first sentence.8

       In Ex parte Rowe, Rowe was sentenced to three years’ imprisonment in Bexar

County.9 Before he was transferred to the custody of the Texas Department of Criminal

Justice (TDCJ), he was sent to Georgia to answer charges there.10 He was placed on




       3
            117 S.W.3d at 867-68.
       4
            Id. at 868.
       5
            Id. at 868-72.
       6
            Id. at 872-73.
       7
            Id. at 873.
       8
            Id.
       9
            2009 Tex. Crim. App. LEXIS 150, at *1.
       10
            Id.
                                                                                 BAKER—5
probation in Georgia.11 He was given permission to serve his probation in Bexar County, but

when he returned to Texas, TDCJ did not take him into custody.12 And although Rowe

alerted Texas authorities of the error, he remained at large on probation.13 Rowe was later

arrested on a premature release warrant when he went to renew his driver’s license.14

       Rowe sought habeas relief, claiming that he was entitled to credit for the time he was

erroneously released. 15   We agreed and said, “Because [Rowe] had not violated the

conditions of his supervised release at the time he was detained on the premature release

warrant, he should not be penalized for following the rules that would have been in place had

he been properly released from custody.” 16

       Following the teachings of Ex parte Hale and Ex parte Rowe, we conclude that Baker

is entitled to relief. Baker was erroneously released by Harris County officials because

Gillespie County officials failed to place a detainer on him when he was transferred to Harris

County. Additionally, we have observed that it is “unreasonable to require those released

from custody to inform authorities that they should in fact be detained.” 17 Like Rowe, Baker


       11
            Id.
       12
            Id.
       13
            Id. at *1-2.
       14
            Id. at *2.
       15
            Id. at *1.
       16
            Id. at *5.
       17
            Id.
                                                                                   BAKER—6
was not conditionally released on parole or mandatory supervision before he was legally

eligible.18 Therefore, Section 508.283 of the Texas Government Code does not apply. In

fact, because Baker was convicted of a state jail felony, he was not eligible for either form

of conditional release.19 Baker was required to serve his two-year sentence day for day.20

Baker is therefore entitled to credit toward the expiration of his sentence for the time he spent

out of custody following his erroneous release. Accordingly, Baker discharged his two-year

sentence in September 2003. Baker was therefore illegally confined at the direction of

Gillespie County authorities in October 2007 when he returned to the United States from

China.

         Finally, we disagree with the dissent’s contention that Baker could be regarded as an

absconder. In probation cases, a trial judge may proceed on a motion to revoke after a

probationer’s probationary term has expired if the State filed a motion to revoke and issued

a capias before the probationer’s term expired.21 This rule was implemented to prevent

rewarding an absconder—a probationer who eludes capture until after his or her probationary




         18
         Compare Ex parte Hale, 117 S.W.3d at 867-68, 872 with Ex parte Rowe, 2009
Tex. Crim. App. LEXIS 150, at *4.
         19
         See T EX. C ODE C RIM. P ROC. art. 42.12 § 15(h)(1) (Vernon 2006); T EX. G OV’T
C ODE §§ 508.142, 508.145, 508.147 (Vernon 2004).
         20
         See T EX. C ODE C RIM. P ROC. art. 42.12 § 15(h)(1); T EX. G OV’T C ODE §§
508.142, 508.145, 508.147.
         21
              Peacock v. State, 77 S.W.3d 285, 287 (Tex. Crim. App. 2002).
                                                                                 BAKER—7
has expired.22 In this case, there was no warrant for Baker’s arrest when he left the country,

and, as stated above, he had no duty to turn himself into authorities in the absence of an

outstanding warrant.23 As a result, Baker should not be viewed as an absconder. The State’s

due diligence requirement therefore is not applicable.

                                        Conclusion

       We hold that Baker discharged his two-year sentence while out of custody following

his erroneous release. Therefore, Baker is released from any further bond or confinement in

cause number 3820 in the 216th Judicial District Court of Gillespie County.




DATE DELIVERED: April 1, 2009
PUBLISH




       22
            Id.
       23
            Ex parte Rowe, 2009 Tex. Crim. App. LEXIS 150, at *5.
