      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00326-CR



                               James David Ferrow Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee


       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
           NO. 62436, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted James David Ferrow, Jr., of the offense of burglary of a habitation

with intent to commit assault. See Tex. Penal Code Ann. § 30.02(a)(1) (West 2003). Punishment

was assessed at 35 years’ imprisonment. In a single issue on appeal, Ferrow argues that the written

judgment of conviction contains a clerical error regarding his credit for jail time served. The State

concedes error. We will modify the judgment to reflect the correct amount of credit for Ferrow’s

jail time served and, as modified, affirm the judgment.

               Before Ferrow was sentenced, he filed a written request for jail time credit. The

request specified that Ferrow had served 335 days in the Bell County jail, from May 25, 2007,

through April 23, 2008. Accordingly, Ferrow requested credit for 335 days served. See Tex. Code

Crim. Proc. Ann. art. 42.03, § 2(a)(1) (West Supp. 2008) (“In all criminal 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 that the defendant has spent in jail for the case, other than confinement served as a condition

of community supervision, from the time of his arrest and confinement until his sentence by the trial

court.”). The request contained the following language:


        After due consideration thereof, said request is hereby (GRANTED) (DENIED), and
        defendant is to be given ____ days credit for jail time served in connection with this
        cause.


The district court circled “granted” and, in the space provided, wrote “335.”

                At Ferrow’s sentencing hearing, the district court made the following pronouncement:


        The Court sentences you in accordance with the jury’s verdict to 35 years’ in the
        Texas Department of Criminal Justice, Institutional Division with your jail credits
        which appear to be a total of 335 days.


Additionally, the district court noted in its docket sheet that Ferrow was to receive “335 days credit.”

However, the written judgment of conviction specified that Ferrow was credited with serving jail

time from “5/27/2007 to 4/23/2008.” That amounts to 333 days.

                A defendant’s sentence must be pronounced orally in his presence. Taylor v. State,

131 S.W.3d 497, 500 (Tex. Crim. App. 2004). The judgment, including the sentence assessed, is just

the written declaration and embodiment of that oral pronouncement. Id. When there is a conflict

between the oral pronouncement of sentence and the sentence in the written judgment, the oral

pronouncement controls. Id.

                Here, there is a conflict between the district court’s oral pronouncement that Ferrow

receive 335 days of jail time credit, and the written judgment providing that Ferrow receive 333 days



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of jail time credit. “The solution in those cases in which the oral pronouncement and the written

judgment conflict is to reform the written judgment to conform to the sentence that was orally

pronounced.” Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003).

               We sustain Ferrow’s sole issue on appeal. We modify the judgment to reflect that

Ferrow was credited with serving time from “5/25/2007 to 4/23/2008.” As modified, the judgment

of conviction is affirmed. See Tex. R. App. P. 42.3(b).




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Modified and, as Modified, Affirmed

Filed: December 31, 2008

Do Not Publish




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