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Hinojosa v. State

Court of Appeals of Texas, Twelfth District, Tyler

May 24, 2017

MIGUEL ANGEL HINOJOSA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

         APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS

          ORDER

          PER CURIAM

         Miguel 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.

         Background

         On 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.

         On 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.

         On 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.

         Error Preservation

         We 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).

         In this 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.

         Credit Towards Sentence

         In his 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 his sentence.

         As 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)[1]; 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 ...


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