
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-05-00417-CR
NO. 03-05-00418-CR



David Keller Fox, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT

NOS. 2004-181 & 2004-238, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

In cause number 2004-181, a jury found appellant David Keller Fox guilty of two
counts of aggravated assault.  See Tex. Pen. Code Ann. § 22.02 (West Supp. 2005).  In cause number
2004-238, the same jury found appellant guilty of possessing more than four grams of morphine,
more than four grams of psilocin, and less than one gram of methamphetamine.  See Tex. Health &
Safety Code Ann. §§ 481.115(a), (b), (d), 481.116 (a), (d) (West 2003).  For the methamphetamine
offense, the jury assessed a two-year term in state jail and a $5000 fine.  The jury assessed ten-year
prison terms and $5000 fines for each of the other offenses, but imposition of these sentences was
suspended and appellant was placed on community supervision.
Appellant's sole point of error is that he was denied equal protection of the law
because the district court did not give him credit for his pretrial jail time when it imposed the two-year state jail sentence.  The State did not respond to this contention.
The record reflects that appellant was arrested for these offenses on April 17, 2004. 
On January 10, 2005, appellant filed an application for writ of habeas corpus seeking a reduction in
bail.  On the same date, the district court reduced bail in these causes from a total of $100,000 to
$25,000.  Appellant obtained a bail bond on February 3, 2005.  Appellant testified during the
punishment phase that he spent a total of 296 days in jail before his release on the bond.  In imposing
sentence, the district court denied appellant's request for jail time credit: "I can't give you time
served on a maximum, anyway, because it's required.  So you will do the two years."
In state jail felony cases, a trial court generally has discretion whether to grant the
defendant credit against his sentence for any jail time served between his arrest and his sentencing. 
Tex. Code Crim. Proc. Ann. art. 42.12, § 15(h)(2) (West Supp. 2005).  If, however, the defendant
is assessed the maximum sentence, and if the defendant was confined following his arrest because
he was unable to make bail due to indigence, he must be given credit for his presentence jail time. 
Holloway v. State, 115 S.W.3d 797, 798 (Tex. App.--Austin 2003, no pet.) (citing Ex parte Bates,
978 S.W.2d 575, 577 (Tex. Crim. App. 1998)).  To deny time credit under these circumstances
would cause the defendant to suffer incarceration beyond the maximum punishment provided for the
offense because of his indigence, and thus deny him equal protection of the law.  Id. (citing Ex parte
Harris, 946 S.W.2d 79, 80 (Tex. Crim. App. 1997)).
Appellant received the maximum two-year sentence provided for state jail felonies. 
See Tex. Pen. Code Ann. § 12.35(a) (West 2003).  Thus, he must be given credit for the time he
spent in jail due to his inability to afford the bail initially set by the court.  The point of error is
sustained.
There are two judgments in cause number 2004-238.  The judgment convicting
appellant of possessing less than one gram of methamphetamine and imposing a sentence of two
years in state jail is modified to reflect a pretrial jail time credit of 296 days.  As modified, this
judgment is affirmed.  The other judgment in cause number 2004-238, for possession of morphine
and psilocin, and the judgment in cause number 2004-181 are affirmed. (1)



				__________________________________________
				W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Affirmed in Part; Modified and, as Modified, Affirmed in Part
Filed:   August 31, 2006
Do Not Publish
1.        Appellant's motion for prompt resolution is dismissed.

