Cooper v. State, 05-19-00229-CR

TYRONTAE LOMON COOPER, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-19-00229-CR

No. 05-19-00230-CR

No. 05-19-00231-CR

No. 05-19-00232-CR

No. 05-19-00233-CR

Court of Appeals Fifth District of Texas at Dallas

June 29, 2020

On Appeal from the 15th Judicial District Court Grayson County, Texas

Trial Court Cause Nos. 069973, 069975, 069976, 069977, 069796

MEMORANDUM OPINION

Before Justices Myers, Partida-Kipness, and Reichek

Opinion by Justice Myers

Appellant Tyrontae Lomon Cooper appeals his four convictions for burglary of a habitation (cause numbers 05-19-00229, 00230, 00231, and 00232-CR) and one conviction for unauthorized use of a motor vehicle (05-19-00233-CR). He brings four issues alleging (1) the jail time credits in cause numbers 05-19-00229-CR and 05-19-0232-CR are based on an erroneous arrest date and must be modified; (2) appellant is entitled to one additional day of jail time credits in causes 05-19-00230- CR, 05-19-00231-CR, and 05-19-00233-CR; (3) the judgment in cause 05-19-00230-CR must be corrected to reflect the trial court's pronouncement of sentence; and (4) the imposition of court costs in causes 05-19-00230-CR, 05-19-00231-CR, 05-19-00232-CR, and 05-19-00233-CR was error. As modified, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

On September 26, 2018, a Grayson County grand jury returned a two-count indictment in cause number 05-19-00233-CR for the offenses of theft of property with the value of $30,000 or more but less than $150,000 (count 1) and unauthorized use of a motor vehicle (count 2). On November 7, 2018, a Grayson County grand jury returned four more indictments against appellant in causes 05-19-00229-CR, 05-19-00230-CR, 05-19-00231-CR, and 05-19-00232-CR.

In cause number 05-19-00229-CR, the indictment alleged that appellant committed the offense of burglary of a habitation owned by Holly Burns on or about April 18, 2018, and alleged that prior to the offense, appellant was adjudicated under section 54.03 of the Texas Family Code for delinquent conduct constituting the felony offense of burglary of a habitation.

In cause number 05-19-00230-CR, the indictment alleged that appellant committed the offense of burglary of a habitation owned by Michael Denney and Amber Denney on or about April 18, 2018, and alleged the same punishment enhancement paragraph as contained in cause number 05-19-00229-CR.

In cause number 05-19-00231-CR, the indictment alleged that appellant committed the offense of burglary of a habitation owned by Elizabeth Quiroz, Zabdi Quiroz, and Jonadab Quiroz, on or about April 23, 2018, and alleged the same punishment enhancement contained in cause number 05-19-00229-CR.

In cause number 05-19-00232-CR, the three-paragraph indictment alleged that appellant committed the offense of burglary of a habitation owned by Joshua Price on or about August 7, 2018, and it contained the same punishment enhancement as cause number 05-19-00229-CR.

During a plea hearing held on December 21, 2018, the State of Texas struck count I of the indictment in cause 05-19-00233-CR, and appellant pleaded guilty to count II, unauthorized use of a motor vehicle. Appellant also pleaded guilty to the remaining indictments alleging burglary of a habitation and entered a plea of true to the enhancement paragraph contained in each indictment (causes 05-19-00229-CR, 05-19-00230-CR, 05-19-00231-CR, and 05-19-00232-CR).¹ The trial court found appellant's pleas were freely and voluntarily made and that he was mentally competent to enter those pleas. The court subsequently ordered the preparation of a presentence investigation ("PSI") report and set appellant's sentencing date.

During the sentencing hearing held on February 7, 2018, after reviewing the PSI and hearing testimony, the trial court found appellant guilty in cause number 05-19-00233-CR and sentenced him "to two years state jail plus court costs with restitution to be determined." In cause number 05-19-00229-CR, the trial court found appellant guilty, found the enhancement true, and sentenced him to 40 years of imprisonment "plus court costs with restitution to be determined." In cause number 05-19-00230-CR, the trial court found appellant guilty, found the enhancement true, and sentenced him to 40 years of imprisonment "plus court costs, and restitution to be determined." For the last two cases, 05-19-00231-CR and 05-19-00232-CR, the trial court found him guilty, found the enhancements true, and sentenced appellant to 40 years of imprisonment "plus court costs and restitution to be determined." The trial court ordered all sentences to run concurrently and ordered that appellant "receive credit for time served."

Costs of court were imposed, and a bill of costs was issued, in each of the five cases. In causes 05-19-00229-CR, 05-19-00230-CR, 05-19-00231-CR, and 05-19-00232-CR, appellant was assessed identical court costs of $226.00. In cause 05-19-00233-CR, he was assessed court costs of $246.00—the difference based on a "Subpoena Service Fee" of $20.00 assessed in that case.

Appellant timely filed notices of appeal. His original counsel filed a motion to withdraw because, as stated in the motion, he had made a complete review of therecord and found no legal or factual issues that could be raised. Counsel also cited the longstanding principle that "it is not appropriate for appointed appellate counsel to file an Anders brief in a case in which counsel also served as trial counsel." Chandler v. State, 988 S.W.2d 827, 828 (Tex. App.—Dallas 1999, no pet.). We granted the motion to withdraw and ordered the trial court to appoint new counsel, who filed the appellate brief raising the above four issues.

DISCUSSION

Issue 1: Jail Time Credits

In his first issue, appellant argues that the jail time credits ordered in causes 05-19-00229-CR and 05-19-00232-CR are based on an erroneous arrest date and must be modified. Appellant's argument is that he is entitled to 176 days of jail time credit in 05-19-00229-CR and 05-19-00232-CR, rather than the 79 days credited by the trial court in the two judgments. The State responds that the trial court did not err in its assessment of credit for time served.

A trial court must give a criminal defendant credit on his sentence for time spent in jail in the cause, other than served as a condition of community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a); Taylor v. State, 126 S.W.3d 201, 204 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see Ex parte Bynum, 772 S.W.2d 113, 114 (Tex. Crim. App. 1989) ("It is settled that an individual is entitled to all time spent in jail 'on said cause.'"). "The trial court is required to grant the[defendant] pre-sentence jail time credit when [the] sentence is pronounced." Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). An appellant is not required to object at trial to raise the issue of jail time credit on appeal. McGregor v. State, 145 S.W.3d 820, 822 n.1 (Tex. App.—Dallas 2004, no pet.).

The relevant portion of article 42.03 provides:

Sec. 2. (a) 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:

(1) in jail for the case, including confinement served as described by Article 46B.009² and excluding confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court;

(2) in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, or another court-ordered residential program or facility as a condition of deferred adjudication community supervision granted in the case if the defendant successfully completes the treatment program at that facility; or

(3) confined in a mental health facility or residential care facility as described by Article 46B.009.

TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a) (emphasis added).

Article 42.03 entitles a defendant to credit for the time the defendant is incarcerated as to the case in which he is ultimately tried and convicted. See Collins v. State, 318 S.W.3d 471, 473 (Tex. App.—Amarillo 2010, pet. denied) ("[T]he plain wording of the provision mandates that the defendant receive credit for the time spent jailed before his conviction. But, of import is the phrase 'for the case'appearing in the statute. From its location in the edict, the 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."); see also Benefield v. State, No. 02-14-00099-CR, 2015 WL 4606273, at *8 (Tex. App.—Fort Worth July 30, 2015, no pet.) (mem. op., not designated for publication) (opinion on reh'g) (in a conviction for a charge of continuous violence against the family, the defendant was not entitled to credit for prior incarceration under a charge of injury to a child); Blackerby v. State, No. 03-11-00272-CR, 2012 WL 6097306, at **4-5 (Tex. App.—Austin Dec. 5, 2012, no pet.) (mem. op., not designated for publication) (appellant not entitled to jail-time credit on intoxication manslaughter conviction for time spent in jail after arrest for felony DWI when not indicted for intoxication manslaughter until later date: "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."); 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.") (citing Ex parte Crossley, 586 S.W.2d 545, 546 (Tex. Crim. App. 1979)).

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