*1 785 time” “good may tion for credits 4. When a defendant who has “Sec. regula- rules and pursuant awarded sentenced imprisonment been of administration of the Texas of tions Department has spent Corrections Department disciplinary sys- of Corrections’ jail pending time in trial and sentence or tem. record before this Court pending appeal, judge of sentenc- maintained petitioners court shall direct the sheriff to reflect ing attach record while in the Louisi- papers good to the commitment statement conduct assessing Penitentiary. Depart- the defendant’s conduct while ana The Texas State statement, jail. in On basis of the officials ascertain may ment of Corrections’ Department of Corrections shall from the Louisiana State officials grant good the defendant such credit is required whatever to deter- Penitentiary jail for the in spent Then, behavior time as he mine the conduct record. petitioners’ would have earned had he been in the Department of Corrections’ offi- Texas custody of the department." are ap- cials can make whatever decisions added) awarding with propriate petitioners in provision credit,
Under amended based good conduct Procedure, Legislature of Criminal Code records the Louisiana Peniten- from State provide its desire to clearly has indicated tiary. credit not only criminal defendants with sought granted part. in The relief jail pending appeal, in see spent g.,
time
e.
will be
copy
delivered
Texas,
(5th
v.
after credited credit for days
with all calendar time all
spent custody prior pending trial and addition, these defend
appeal, ants would also entitled consideration BULLET, Appellant, Lee Iva “good provided time” under arti credits 61841, Department as cle the Texas v. might of Corrections award for the time Texas, Appellee. The STATE spent custody. No. 51821. Texas In the at bar State petitioners placed its detainer Appeals of Texas. Criminal Court of 1970; therefore, 19, peti since the March July custody” “constructive tioners forward, they were day from by the Texas to consideration also entitled good of Corrections for time
Department 61841,supra. Ex Article See
credits under (Tex.Cr. 546
parte Enriquez, 490 S.W.2d Bennett, 508 parte Ex S.W.2d
App.1973); parte Esquivel, Ex (Tex.Cr.App.1974); Ex (Tex.Cr.App.1976);
531 S.W.2d Harrelson supra;
parte Spates, 2 and su Article Sections
supra;
pra. above, peti- the reasons stated
For to- flat time credit are
tioners Texas sentences discharge their
ward 19, 1970, well as considera- March *2 less Hun-
($20.00) Dollars but
than Two
Dollars,
($200.00)
intending
dred
to avoid
knowing
payment
for the service and
com-
provided only
is
for
the service
”
sup-
pensation;
.
.
.
plied)
We will discuss the
Jr.,
Bass,
Freeport,
H.
for appellant.
Sam
appel-
The record reflects that
evidence.
Bass,
Ogden
Atty.,
Dist.
Thomas Wat-W.
jury
plea
lant
a
was tried before
son,
Atty., Angleton,
Asst. Dist.
D.
Jim
guilty.
adduced at the trial
Vollers,
and David McAn-
Atty.
State’s
S.
employed
showed
had been
appellant
Austin,
gus,
Atty.,
Asst.
State’s
for
Maxwell as a maid
John and Jackie
State.
5, 1975,
through January
January
appellant
Jackie Maxwell testified that
OPINION
telephone
to use
for
been instructed not
DOUGLAS, Judge.
John
long
calls.
Maxwell testified
distance
This is an
from a
for
appeal
conviction
give appellant permission
that he
did
the offense of theft of service under V.T.
calls.
telephone
long
use the
distance
Code,
Penal
31.04.
Section
The court
Maxwell,
fifteen-year-old
son of
Steve
months,
punishment at six
probat-
assessed
Maxwells,
in the
testified that he was
ed, and a fine of $250.00.
appellant picked
room
when
on one occasion
indictment
“Hello,”
said,
and
and
up
telephone
and
an offense
“Yes,
and,
He
accept.”
will
left the room
support
evidence
the con-
room, appellant
when
into
he came back
viction.
said,
later,”
hung
you
“I
call
back
and
will
Then
him
up
telephone.
she turned to
V.T.C.A.,
Code,
Penal
Section
and
it had been a collect call for
stated that
reads,
part,
as follows:
okay.
her
that his mother said it was
and
if,
“(a)
person
theft of
commits
service
Shaw,
payment
manager
Brazosport-
with intent
to avoid
Paul
Bell,
knows is
iden-
provided Angleton
service that he
area for Southwestern
to the court the record
only
compensation:
tified and submitted
long
telephone
charged
calls
distance
“(1)
or
intentionally
knowingly
he
Mrs. Max-
number 297—4528.
telephone
secures
of the service
performance
as the
well on recall
identified 297—4528
threat,
token;
or
by deception,
false
her
telephone
at
residence
number
appellant
employed
was
as a maid. She
“(2) having
disposi-
control over the
long
then
as to which
distance calls
testified
tion
of another
of services
recalled
she had made. Mr. Maxwell was
entitled,
he is
he intentionally
Max-
purpose
for the same
was Steve
knowingly diverts
other’s serv-
no other
testimony
well. The
showed that
ices to his own benefit
or to
family or
had used
friends
members of
benefit of another
long
that several
distance
and
telephone
them.”
had been made.
telephone calls
It should be noted that
theft of service
threat,
can either be by deception,
or false
The
thus
is whether
issue
31.04(a)(1),
token under
Section
is sufficient
to show that
evidence
service;
31.04(a)(2).
performance
diversion under
of a
service,
namely, telephone
by deception as
The
omitting the formal
“Deception”
in the information.
parts, reads as follows:
V.T.C.A.,
defined in
“Iva Lee
did intentionally
Bullet
31.01(2), as follows:
perform-
knowingly
secure
by deception,
“(A) creating
confirming by
service,
telephone
namely
ance of a
serv-
impression
conduct a false
ice,
Twenty
of more than
value
charge
a violation
and information
plaint
fact
31.04(a)(1).
transac-
is insuffi-
charge.
actor
tion,
support
cient to
the conviction must be
For this reason
impression
false
failing to correct
“(B)
reversed.1
*3
af-
likely to
fact that
the
another
judgment
the
fect
ONION, Presiding Judge (concurring).
previ-
transaction,
the actor
that
by the
I
in the results reached
concur
by
confirmed
ously created
by Judge
court
opinion authored for the
ac-
conduct,
the
and that
vigorous exception
take
to
Douglas, but
not now
tor does
The information
footnote # 1.
acquiring
another
“(C) preventing
theft of service under one mode of Y.T.
his
affect
likely to
information
while the
transaction;
the other mode.
If this
proof showed
transferring
selling or otherwise
“(D)
re-tried,
there will have
likely
is to be
most
dis-
without
encumbering property
information filed so as
to be a new
interest, ad-
lien, security
closing a
available.
correspond
proof
Since
impedi-
claim,
legal
or other
verse
will therefore not
present
information
prop-
of the
enjoyment
ment to
used,
for this
likely
necessity
I see no
in-
lien, security
erty,
court,
any
with the heaviest caseload
is or
terest,
impediment
claim or
nation,
appellate court in this
to write
a matter of
valid, or is or is not
upon
sufficiency
of an information that
record; or
official
proper disposition
does not control
that is
“(E) promising performance
this court.
I have
the case before
While
judgment of
great
of the
doubts about
the actor
that
in the transaction
enter-
think would be
perform
intend to
does
fair-minded members of the
tained most
ex-
performed,
will not
knows
bar, despite
certain form books
bench
perform
failure
cept
any interpretation of the
published prior to
evi-
without other
in issue
promise
court, I
new
resent
Penal Code
is not
knowledge
of intent
dence
footnote # 1 of the
implication in said
actor did
sufficient
opinion
majority
has de-
court’s
knew
perform
intend to
subject
necessary
clined to write on a
performed.”
would not be
promise
case,
proper disposition
opinion
even the writer
not show
is suffi-
that the information
state his view
by appellant
that the services
today
think until
cient.
I did not
the evi-
What
deception.
through
done
en-
approved of this court
Judge Douglas
dence does establish
issuing declaratory
practice
gaging
in violation
use
to her own
diverted services
judgments.
the com-
31.04(a)(2), supra,
1.
the information is
doing a little bit of what he does so much of
in that
it does not
“from
is, writing
many subjects
on
that are
taken;
who” the theft of services was
“to
necessary
for the determination of a case.
was,
pay
whom” there
a failure to
writings
judges
His
include lectures
majority
the services. A
is of the
Court
attorneys
questions
on
raised
opinion that
the information is insufficient
case as
example
well as other dictum. For an
allege an offense but it does not choose to write
declaratory judgments,
dictum and
see Olson
subject
because of the reversal
State,
(Tex.Cr.App.1969),