Ex parte Alvarez

570 S.W.3d 442

EX PARTE Raul ALVAREZ

NO. 03-18-00775-CR

Court of Appeals of Texas, Austin.

Filed: March 7, 2019

Petition for Discretionary Review Refused June 5, 2019

Robert Daniel, for Appellant.

David A. Escamilla, Austin, Stacey M. Soule, for Appellee.

Before Justices Goodwin, Baker, and Triana

OPINION

Gisela D. Triana, Justice

Appellant Raul Alvarez was convicted of the offense of driving while intoxicated and sentenced to 120 days' confinement in county jail. Alvarez appealed his conviction and was never in custody while his appeal was pending. After his conviction was affirmed on appeal, Alvarez was ordered to begin serving his sentence. Alvarez subsequently filed an application for writ of habeas corpus, asserting that he should have been in custody while his appeal was pending and was thus entitled to credit for time served. The trial court denied relief. We will affirm the trial court’s order.

BACKGROUND

The record reflects that Alvarez was convicted and sentenced on December 6, 2016, with the 120-day jail sentence to commence on January 3, 2017. On December 21, 2016, Alvarez filed both a notice of appeal and a "motion for reasonable bail pending appeal." That same day, the trial court granted Alvarez’s motion, setting bail in the amount of $3,000 with the condition that Alvarez be prohibited from driving without an ignition interlock device, valid driver’s license, and insurance. On December 27, 2016, a Travis County deputy clerk issued a recall of the trial court’s order committing Alvarez to the custody of the Travis County Sheriff.

The recall of the commitment order was indisputably improper, because Alvarez never paid the bail amount or executed an appeal bond. Instead, Alvarez decided that he wanted to serve his sentence on the date it was scheduled to begin while his appeal was pending. However, instead of notifying the trial court that he had changed his mind, Alvarez simply reported to the bonding desk at the Blackwell-Thurman Criminal Justice Center on January 3, 2017, and attempted to turn himself in to the Travis County Sheriff’s Office. Sheriff’s deputies informed Alvarez that there was "nothing in the system" instructing them to take him into custody and advised him to return the following day. Alvarez returned on January 4 and was again told that he was "not in the system." This time, Alvarez was advised to "just go home." Alvarez returned to his home in Houston, free from custody, unsupervised by the trial court or any other government entity, and under no appeal bond conditions.

On July 5, 2018, Alvarez’s conviction was affirmed on appeal. See Alvarez v. State , No. 13-17-00042-CR, 2018 WL 3301907, 2018 Tex. App. LEXIS 5029 (Tex. App.—Corpus Christi July 5, 2018, no pet.) (mem. op., not designated for publication). Mandate issued on September 18, 2018. On September 20, 2018, the trial court issued a commitment order for Alvarez to begin serving his sentence on October 20, 2018. That date was later adjusted to November 15, 2018. On that date, Alvarez voluntarily surrendered himself to the Travis County Sheriff’s Office. Also on that date, the trial court, after a hearing, denied Alvarez’s application for writ of habeas corpus. This appeal followed.

JURISDICTION

Texas Code of Criminal Procedure article 11.09 provides that a person who is "confined on a charge of misdemeanor" may apply for habeas relief "to the county judge of the county in which the misdemeanor is charged to have been committed." Tex. Code Crim. Proc. art. 11.09. The Court of Criminal Appeals has held that "appeals from denial of relief sought in a misdemeanor post conviction writ of habeas corpus should be directed to the courts of appeals." Ex parte Jordan , 659 S.W.2d 827, 828 (Tex. Crim. App. 1983). Accordingly, we have jurisdiction to review the denial of relief here. See id. ; see also Ex parte Kulow , 563 S.W.3d 383 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (reviewing similar issue of trial court’s denial of habeas relief from sheriff’s decision to change policy regarding "good-time credit").

STANDARD OF REVIEW

To prevail in a post-conviction writ of habeas corpus proceeding, the applicant bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief. Ex parte Lewis , 537 S.W.3d 917, 921 (Tex. Crim. App. 2017) ; Ex parte Torres , 483 S.W.3d 35, 43 (Tex. Crim. App. 2016) ; Ex parte Richardson , 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In reviewing a trial court’s decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court’s ruling and, absent an abuse of discretion, uphold the ruling. Ex parte Wheeler , 203 S.W.3d 317, 324 (Tex. Crim. App. 2006) ; Ex parte Ali , 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref'd)see Ex parte Gill , 413 S.W.3d 425, 428 (Tex. Crim. App. 2013). In conducting our review, we afford almost total deference to the trial court’s determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Ex parte Garcia , 353 S.W.3d 785, 787 (Tex. Crim. App. 2011) ; Ex parte Vasquez , 499 S.W.3d 602, 612 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). We afford the same amount of deference to the trial judge’s application of the law to the facts, if the resolution of the ultimate question turns on an evaluation of witness credibility and demeanor. Ali , 368 S.W.3d at 831. However, where the resolution of the ultimate question turns on an application of legal standards, we review the ruling de novo. Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App. 1999) ; Ex parte Nelson , 546 S.W.3d 742, 746 (Tex. App.—Houston [1st Dist.] 2018, no pet.) ; Ali , 368 S.W.3d at 831. In this case, because the facts are undisputed, we review de novo the legal question of whether Alvarez was entitled to the relief sought in this proceeding.

DISCUSSION

In arguing that he is entitled to receive credit for time served, Alvarez relies on a line of cases from the Court of Criminal Appeals in which "convicted inmates were inadvertently released from custody when they should have remained serving their legitimately imposed sentences." Ex parte Thiles , 333 S.W.3d 148, 150 (Tex. Crim. App. 2011) (citing Ex parte Baker , 297 S.W.3d 256, 259 (Tex. Crim. App. 2009) ; Ex parte Rowe , 277 S.W.3d 18, 19-20 (Tex. Crim. App. 2009) ; Ex parte Hale , 117 S.W.3d 866, 873 (Tex. Crim. App. 2003) ). "In such cases of erroneous release, [the court has] consistently held 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.’ " Id. (quoting Baker , 297 S.W.3d at 258 ).

In Thiles , for example, the habeas applicant was released on bond in 1985 after the intermediate court of appeals had reversed his conviction and the State’s appeal of the reversal was pending before the Court of Criminal Appeals. Id. at 149. In 1986, the Court of Criminal Appeals reversed the judgment of the intermediate court and remanded the case to that court to address Thiles’s remaining points of error. Id. The intermediate court then affirmed Thiles’s conviction, and mandate issued in 1987. Id. However, no arrest warrant was issued until 2007. Id.

In his habeas application, Thiles argued that he was entitled to receive credit from the time that mandate had issued until the time that he had been arrested, and the Court of Criminal Appeals agreed. Id. at 150. The court observed that although Thiles was "legitimately released on an appeal bond," he "should have been re-incarcerated once his conviction was final in 1987." Id. at 151. However, because of the failure of the State to issue a warrant until 2007, "the applicant was never informed that a mandate of affirmance had issued in his case.... Instead, he was allowed to remain at large erroneously, without his knowledge and through no fault of his own." Id. at 152. The court further observed that Thiles "never violated the conditions of his appellate bond, having never been called to appear before the court upon the affirmance of his conviction on appeal." Id. The court added that "[t]he State, the applicant, and the trial court all agree that the principle of reasonableness underlying the erroneous-release cases should apply on the facts of this case, and that the applicant should be granted the relief." Id. at 151–52. "Under these particular circumstances," the court concluded, Thiles was "entitled to day-for-day time credit from the time the appellate mandate issued to the time he was finally arrested on the warrant." Id. at 152.

Although Alvarez acknowledges that his case is not, strictly speaking, an erroneous-release case, he nevertheless asserts that we should apply "the same principles and logic in this matter." In Alvarez’s view, "the fact that he remained out of custody, through no fault of his own, due to error and inaction by the State, was tantamount to an erroneous release."

We disagree. As an initial matter, Alvarez was never in custody while his appeal was pending. Thus, cases that involve the erroneous release of a prisoner from custody are inapplicable. To allow Alvarez to receive jail-time credit based on a deputy clerk’s mistake, when Alvarez was never in jail while his appeal was pending but was instead completely free and unsupervised, would effectively enable Alvarez to avoid serving his sentence altogether. Such a result is not supported by the erroneous-release line of cases. Cf. Hale , 117 S.W.3d at 870 (allowing inmate to receive credit for time served when erroneously released from custody because release was not "unconstitutional exercise[ ] of the executive power of clemency by local officials" and "did not place in the hands of [local officials] the power to defeat" trial court’s judgment).

In contending otherwise, Alvarez relies primarily on Thiles , su...