                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                     No. 07-13-00371-CR


                       DANNY DEWAYNE RANDELL, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 242nd District Court
                                      Hale County, Texas
               Trial Court No. B18744-1105, Honorable Edward Lee Self, Presiding

                                       January 7, 2014

                              MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Danny Dewayne Randell was convicted of the state jail felony offense of theft 1

and sentenced to two years in a state jail facility. We affirmed the trial court’s judgment

on direct appeal, in Cause No. 07-11-00493-CR. See Randell v. State, No. 07-11-

00493-CR, 2013 Tex. App. LEXIS 742 (Tex. App.—Amarillo Jan. 25, 2013, pet. ref’d)

(mem. op., not designated for publication). He is serving his state jail sentence.



       1
           See TEX. PENAL CODE ANN. § 31.03 (W EST 2012).
        On November 4, 2013, Randell, acting pro se, filed with the trial court a “request

for time served for court costs and fines.” The trial court denied his request and Randell

filed notice of appeal of the denial. The document Randell filed with the trial court is

very short, and contained no explanation either of the specific relief he was requesting

or of the basis for his claimed entitlement to relief.


       Randell describes his request in more detail in his brief filed in this Court. Here,

he asserts his request for time served for court costs and fines was based on article

43.09(b) of the Texas Code of Criminal Procedure.2 He contends the trial court abused

its discretion in denying his request. Article 43.09(b) provides:


       In its discretion, the court may order that for each day's confinement served by a
       defendant under this article, the defendant receive credit toward payment of the
       pecuniary fine and credit toward payment of costs adjudged against the
       defendant. Additionally, the court may order that the defendant receive credit
       under this article for each day's confinement served by the defendant as
       punishment for the offense.

       TEX. CODE CRIM. PROC. ANN. art. 43.09(b) (West 2012).


       Assuming, without deciding, that the article applies to those confined in a state

jail, we note first that by its terms, the relief described in article 43.09 is discretionary

with the trial court. Nothing in the record presented us shows an abuse of discretion by

the trial court in denying Randell’s request. On appeal, Randell points out the trial court

found him to be indigent during his underlying prosecution, and asserts he still is

indigent. We cannot agree that a trial court abuses its discretion merely by denying

relief under article 43.09(b) to a defendant who is indigent. If that were the case, a

       2
         Randell also briefly mentions section 501.014 of the Government Code, see
TEX. GOV’T CODE ANN. § 501.014 (West 2012), but does not offer argument pertaining to
that section.

                                               2
significant percentage of defendants automatically would qualify for relief under the

article and its grant no longer would be discretionary with the court.


       As part of his argument, Randell also cites article 43.091 of the Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 43.091 (West 2012). However, that

section speaks to a default in payment of a fine or cost. The trial court’s judgment of

conviction orders Randell to pay any unpaid fine or cost on his release from

confinement. Since he has not yet been released, he is not in default of payment.

Accordingly, the trial court did not abuse its discretion by failing to order relief under

article 43.091.


       Seeing no abuse of discretion in the trial court’s action, we overrule Randell’s

issues and affirm the order of the trial court.




                                           James T. Campbell
                                               Justice




Do not publish.




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