Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
Hinojosa appeals his conviction for possession of a
controlled substance. In his sole issue, Appellant argues the
trial court erred by failing to award him credit towards his
sentence for the time he spent in a substance abuse felony
punishment facility (SAFP). We abate and remand.
January 6, 2014, Appellant pleaded "guilty" to
possession of a controlled substance and was placed on
deferred adjudication community supervision for five years.
On November 10, Appellant appeared before the court on a
motion to adjudicate guilt, but was continued on deferred
adjudication with the following modification:
The defendant is required to successfully serve a term of
confinement and treatment in a substance abuse treatment
facility under this section, by abiding by all rules and
regulations of said program for a term of not less than 90
days or more than 1 year, and upon successful completion of
the program, the defendant is required to participate in a
drug or alcohol abuse continuum of care treatment plan as
developed by the Texas Commission on Alcohol and Drug Abuse,
by abiding by all rules and regulations of said treatment
plan until successfully discharged by the staff of the
continuum of care program.
October 5, 2015, Appellant appeared before the court for a
status hearing. During that hearing, the court referenced a
report it received that Appellant had been released from the
SAFP facility, was reporting weekly, and was to begin an
aftercare program on September 21. The trial court also
approved Appellant's request that his community
supervision be transferred to Dallas.
March 30, 2016, the State filed a motion to adjudicate
Appellant's guilt, alleging, in part, that Appellant
committed a new offense and failed to successfully complete
SAFP. On April 29, Appellant pleaded "true" to
several allegations, including failure to successfully
complete SAFP. The court found all the allegations in the
State's motion to adjudicate "true" and found
Appellant guilty of possession of a controlled substance.
Appellant's trial counsel informed the court that
Appellant completed the inpatient portion of SAFP, but failed
to complete aftercare. The trial court orally pronounced a
sentence of imprisonment for ten years with credit for time
served. On May 4, the court signed a written judgment, which
indicated that Appellant would receive credit for eighty two
days served in the county jail. This appeal followed.
first address the State's argument that Appellant did not
preserve any appellate complaint regarding his time credits.
Ordinarily, to preserve an issue for appellate review, an
appellant must have first raised the issue in the trial
court. Tex.R.App.P. 33.1(a); Burt v.
Statet 396 S.W.3d 574, 577 (Tex. Crim. App.
2013). However, the requirement that an objection be raised
in the trial court logically assumes that the appellant had
the opportunity to raise it. Burt, 396 S.W.3d at
577; see also Hardeman v. State, 1 S.W.3d 689, 690
(Tex. Crim. App. 1999). An appellant fails to preserve error
by not objecting when he had the opportunity; conversely, if
an appellant never had the opportunity to object, he has not
forfeited the error. Burt, 396 S.W.3d at 577-578;
see also Cobb v. State, 95 S.W.3d 664, 666 (Tex.
App-Houston [1st Dist] 2002, no pet.) (appellant did not
forfeit challenge to language in written judgment when
judgment was not prepared until after hearing).
case, the trial court orally pronounced sentence on April 29,
2016 and indicated that Appellant's sentence would be
credited with any time he had already served. The written
judgment was not signed by the court and filed with the clerk
until May 4. Thus, Appellant did not have an opportunity to
object to the failure to include his time spent in a SAFP
facility until the written judgment was signed and filed.
See Asberry v. State, 813 S.W.2d 526, 531 (Tex.
App.-Dallas 1991, pet. ref d) (noting parties often discover
judgment's recitations for first time when examining
record for appellate purposes and when it is too late for
party to call the error to trial court's attention or
move for nunc pro tunc judgment). Accordingly, his complaint
is not waived. See Burt, 396 S.W.3d at 577-578;
see also Cobb, 95 S.W.3d at 666.
sole issue, Appellant argues that the trial court erred by
failing to credit his time spent in a SAFP facility towards
his sentence. The State notes that the record is unclear
whether Appellant completed the inpatient portion of SAFP.
Appellant pleaded "true" to the allegation that he
failed to successfully complete SAFP, and the trial court
entered an order finding that allegation "true, "
but neither the motion to adjudicate nor the order of final
adjudication distinguish between inpatient and aftercare. The
State concedes that if Appellant successfully completed the
inpatient portion of SAFP, he is entitled to a credit towards
previously discussed, there are references in the record that
indicate Appellant completed the inpatient portion of SAFP.
If Appellant successfully completed the inpatient portion of
the program, he is entitled to a credit for that time.
See Tex. Code Crim. Proc. Ann. art. 42A.755(d) (West
Supp. 2016) (on revocation, trial court shall credit to
defendant time served as a condition of community supervision
in a substance abuse felony punishment facility, but only if
defendant successfully completed the treatment program in
that facility); Deveraux v. State, Nos.
12-13-00284-CR, 12-13-00285-CR, 2014 WL 977475, at *3 (Tex.
App-Tyler Mar. 12, 2014, no pet.) (mem. op., not designated
for publication) (holding that an appellant is not required
to complete a subsequent program to receive credit on
sentence for time served in a SAFP facility). However, the
record is silent as ...