*1 tence(s) had operate.” “ceased to Id. Un- time remained on his at sentence the time der procedures, the new Kuester was of his release. beginning credited with to serve the sec- contrast, applicant here had ac- ond sentence after the Board of Par- prison crued no time as to the second dons and Paroles ruled that the first sen- sentence and enough did not have time tence had operate.” “ceased to Id. In his credit from other eligible sources be application, writ Kuester complained that parole at that time. Because release on TDCJ-ID was not giving him on credit was, fact, charge erroneous, second time, second pretrial jail sentence for pris- applicant is entitled to credit for the time on time before parole, his release to or all spent liberty. at That time exceeds the of the time served since his revocation. length sentence, of the second and the sought He also spent credit for the time on second sentence discharged. is therefore
parole, arguing that he had been released erroneously in 1992 because of the method
used parole eligibility. to calculate Id. at
After considering meaning what should placed operate,” be on “ceased to we held that it point means the the Board of Pardons and Paroles would have re- MAXWELL, Appellant, Robert Daniel
leased the parole inmate on but for a pending consecutive sentence. that,
We went on to using determine STATE Texas. procedures which came into use five release, after original Kuester No. 1671-00. had proper parole sufficient credit for on Appeals Court of Criminal of Texas. both cases and erroneously had not been released. We therefore denied credit on June spent both cases for the time parole.1 on Id. at 271-2.
The facts here are similar in some re- spects to request the facts in Kuester’s spent
credit for parole. Applicant time on had accrued burglary sufficient time on the
sentence to eligible parole and was properly paroled on the burglary charge. "While he should have been retained in
prison begin serving the second sen-
tence, parole and release as to the
burglary is, charge proper. were He
therefore, not entitled to credit on that
charge spent parole, for the time he required to serve out whatever disposition
1. Because of the of the issues of time credit found in are Kuester spent parole, germane credit for time the other in this case.
tion). petition for appellant’s granted We consider whether discretionary review to error committed reversible “the trial court permit appellant failing showing at the key by state witness adju- serving deferred time trial he was judg- probation.” reverse the dication We court and remand ment of the analysis. for a harm the cause to
I. 1:00 a.m. on December
Around
apartment
to her
Mary
returned
Glover
roommate,
Her
party.
after a Christmas
Nickerson,
couch.
Ray
sleeping
was
Ray
Mary
sleep
in her bedroom.
went
at the door and
was
knocks
awakened
The
police.
saying
voice
it was
down,
en-
appellant
door
broken
and
was
men.
apartment with three other
tered the
floor; he
They
Ray
get
told
incident.
during
there
the entire
remained
Mary’s bed-
the men entered
Two of
room,
money
her
was.
asking
where
as
of her
Mary recognized appellant
one
appel-
Her
had invited
son’s friends.
son
week.
apartment
lant
her
same
hit
Appellant
Mary
shook
and
her
she
for
pistol.
head
When
reached
with
gun,
got
the men
scared
III,
Henry
Burkholder,
Houston,
L.
presents.
several
and left with
Christmas
Appellant.
sons,
Mary’s
left
Tiger, another one of
had
Roch,
DA,
Elaine
Asst.
for the State.
S.
inside
three to four thousand dollars
But
apartment.
teddy
Mary’s
bear
OPINION
Mary
anything about
did not know
J.,
HOLLAND,
delivered
appellant never found it.
money, and
MEYERS, PRICE,
the Court which
aggravated
with
charged
was
Appellant
JOHNSON,
HOLCOMB,
WOMACK,
trial,
in-
robbery.
At
wanted
JJ., joined.
Tiger, a State’s
evidence that
troduce
witness,
aggravated
convicted of
possession of a controlled
robbery
sentenced
in-
Appellant also wanted to
appeals af
substance.
The court of
confinement.
been
had
troduce evidence
firmed
conviction. See Maxwell
crime
01-98-01302-CR,
of another
subsequently
convicted
No.
WL
Dist.],
while
on deferred
(Tex.App.
he was
[1st
—Houston
2000) (not
objected,
the trial court
publica-
July
designated
did not allow the evidence to be admitted
not “explain how the witness’s deferred
in front of
jury.
adjudication status could
any
reveal
reason
for testifying falsely against
appellant,”
trial,
At
Tiger testified that he and his
the trial
court did
excluding
not err
brother were friends with appellant and
*3
line of cross-examination.
appellant
had been to his mother’s
apartment
occasions,
on a few
including
II.
the week of the robbery. Tiger stated
brief,
In his
appellant argues that
put
he had
three to four thousand
Jones is inconsistent with Davis and Ev
dollars in
apartment
his mother’s
State,
ans v.
same
Tiger
week.
testified on cross-exam-
App.1975). He notes that a witness on
ination that he left money in his mother’s
adjudication
virtually
is
apartment
times,”
“a lot of
but had never
same
as a
community
witness on
anyone
told
money
was there. He did
supervision; a
adjudi
witness on deferred
not tell the investigating officers about the
probation
cation fears
revocation with the
apartment.
cash
Although appel-
possibility
range
of a full
punishment.
girlfriend
lant’s
testified that he was with
issue,
in appellant’s opinion, is not
her the
night
entire
robbery, appel-
whether
had an actual motive to lie
lant
guilty
was found
by jury.
a
He was
State,
in favor of the
but whether a ration
sentenced to 18
confinement.
al
could draw such an inference.
appeal, appellant
On
argued that
State,
In
Callins v.
780 S.W.2d
trial court committed
reversible error
(Tex.Crim.App.1986), the Court held that
allowing
not
him impeach
key
witness
because the
“lay
defendant failed to
for the
Tiger, with evidence that he
necessary predicate that would invoke the
was on deferred
right
confrontation,”
the defendant was
contended that he should have been able to
right
impeach
denied the
a State’s
present evidence showing a
for Ti-
motive
witness on
adjudi-
the basis of his deferred
ger to testify favorably
for the
cation
status.
Id. The Callins
though
is not a final
Court cited
proposition
Davis for the
conviction. Citing Jones v.
the defendant must show that a witness
(Tex.Crim.App.1992),
S.W.2d 487
the court
bias,
against
“testified
him as a result of
of appeals stated that this Court has dis-
emanating
motive or ill will
from his status
tinguished
from
adjudication.”
Jones,
of deferred
Id. In
pending charges,
appropriate
which is an
this Court cited Callins when it stated that
inquiry to
show motive to
for the
“denying
right
a defendant the
impeach
Maxwell,
State.
slip op. at 3. It concluded
a witness on the basis of the witness’ de-
Alaska,
Davis v.
415 U.S.
probation [did] not
(1974),
S.Ct.
was convicted of the offense of possession cause, here, Tiger had been convicted of a marijuana than July of less two ounces on immediately subject new offense and was Hence, Tiger’s 1998. tion status was appellant’s the time of trial in of fact of conviction October The the new only probation— hearing out at brought on the State’s Jones App.1992). with these argued is not “inconsistent specifical- motion in limine and was Jones the However, legal because the it cases ly by defense counsel. in different from case was witnesses each in appeal, brief mentioned neither this Court Tiger’s position. And opinion, peti- or in the Appeals’ Court of Supreme Court has decided nor the default- tion to this Court. has sufficient status “is” failing to ed this variation of his claim contrary, the bias. To the Appeals. it in raise the Court specific case where we addressed case, That comes being issue Jones, and held that there we issue was down whether Jones should be over- suffi- status was not says that Jones is incon- ruled. Court cient. from opinions sistent with this Court including I that the Court errs in believe Court, opin- these analysis. subsequent conviction its that a witness’s de- ions have indicated Carroll, I issues in also believe adjudication probation status “is” significantly and Moreno differ or sufficient show bias interest Therefore, case. I from the issue this I do not helping State.2 believe respectfully dissent. support cases cited either propositions. these cases Some of the the Court relies on case, factually espe
are from different this appellant’s to in cially view failure appeal the fact of Tiger’s clude subse DEPARTMENT OF TEXAS *6 Carroll3, instance, quent conviction. JUSTICE, CRIMINAL deferred; he witness was Appellant, awaiting incarcerated and trial. In Evans4 v. , indict witness under MILLER, Individually cause, and as ment another the Court’s Jeannie Clyde Representative of Estate of himself been a suggests he could Miller, Deceased, III, and as suspect in case in Edwin which he testified. Miller, Friend of Yvette Anne Next We said Moreno5 that evidence that Miller, Clyde Stephanie Edwin Marie unadjudicated crimes involves “could be” Bryan Miller, IV, Miller, and Nathan admissible to show or in witness’s bias Children, Appellees. Minor particular ap case—which terest pears to mean that sometimes it will and 01-99-00259-CV. No. it will not. But we held there sometimes Texas, Appeals of Court of that, assuming the relevance of the (1st Dist.). Houston witness’s deferred status 28, 1999. Oct. credibility, evidence that status was inadmissible under R. so Moreno does such proposition
not stand for the evidence admissible. (Tex.Crim. Slip op. Evans v. S.W.2d 868 at 6 App.1975). (Tex.Crim. v. 3. Carroll 5. Moreno App.1996). App.1999).