Stasey v. State

for a denial of an assertion of fact or for evidence,

contradictory only that the de- STASEY, (Mickey) John Paul position Short, fendant is to offer. Appellant, supra; State, 611 Johnson v. S.W.2d 649 (Tex.Cr.App.1981). The instant argument Texas, Appellee.

calls for STATE of neither of those. It rather calls jury for the to focus its consideration on No. 1140-83. part they of the case which can them- selves guilt. understand: the evidence of Texas, Court of Criminal En Banc.

Other cases in which comments have been held to be reversible error are ones Jan. explana the comment concerned an itself, tion about the crime like the motive accused, comments which made ref

erence to a testify defendant’s failure to

about the crime State, itself. See Lee v. (Tex.Cr.App.1982).

628 S.W.2d 70 See also State,

Minton v. 162 Tex.Cr.R. (1956); State, Bell v. 130 Tex. (1936);

Cr.R. 92 S.W.2d 450 Sanders v. 123 Tex.Cr.R. 59 S.W.2d 1116

(1933). case, comment, the instant

alone or the context argu of the whole

ment, pertain does rape or to rape,

motive for the and thus does not call jury’s

to a attention the failure of the

person explain who could incidental testify.

information to

Because do jury we not find that a would

naturally and necessarily have taken the

comment to refer failure to

testify, and because the comment does not

call for a denial of an assertion of fact or evidence,

contradictory we hold that

argument was not an reference to

appellant’s failure testify. appeals the court of

affirmed.

TEAGUE, J., dissents.

lease, jail not entitled to time cred- 3-83-109-CR, it. See No. September 14, (Tex.App.— delivered Austin). granted appellant’s petition We discretionary for to determine review propriety of that holding. We reform and affirm. 31, 1982, appellant pled guilty

On March delivery substance, controlled to- 13, 1982, May wit: cocaine. On probation. counsel filed a motion Although the motion was filed 43 sentencing, specifically after re- quested hearing proba- be held or 1982, 1, until June day would have been the after sen- 60th tencing. The appel- trial court 27,1982, motion on the 57th May lant’s sentencing. Subsequently, on March Gray, Angelo, appellant San for Melvin 9, 1983, appellant’s probation was revoked. appeal only. on 14, 1983, appellant On March was released appeal on an bond. Fohn, Angelo, Atty., Gerald A. San Dist. Huttash, Austin, Atty.,

Robert State’s for On June this cause was while the State. pending on to the record

being Appeals, filed with the Court of rescinding trial court entered an order grant- order shock OPINION ON APPELLANT’S PETITION flat ing appellant time for the time was REVIEW FOR DISCRETIONARY May 27, on out to-wit: 8, 1982, Appellant’s appeal to June 1983. CAMPBELL, Judge. appellant apparent- bond was rescinded and Appellant delivery of was convicted of ly was incarcerated. substance, On controlled to-wit: cocaine. 1983, 14, in an September unpub- On guilty appellant plea of sentenced was Third per curiam Court lished years ten Texas of Cor- Appeals appellant held could of not $10,000 fine. rections and assessed a Sub- of object to revocation since sequent sentencing, appellant jurisdiction the trial was without placed probation pursuant to Art. 27, grant probation May shock 1983. 3e(a), V.A.C.C.P., Sec. hereinafter referred The held: Appeals further “Set- probation.” proba- to as “shock The shock ting question aside court’s appeal- Appellant tion was later revoked. 8, order of jurisdiction” to enter the June ed, challenging grant original “ correcting ‘order sentence’ the trial alleging that the credit giving court erred grant him shock was without erroneously the time released on jail entitling him to therefore p. probation.” Slip opinion, time credit for the time he was then reformed the sen- Ap- Austin Court of delete unpublished per opin- tence to peals, in an curiam ion, to June had filed time credit from found that since January 26, 1983, except requesting for the time from release on shock tion, through in his 1983—the time without fault re- March actually pending question confined There can be no that the disposition of the motion to revoke. trial court acted without granting appellant’s pro motion for shock Initially, appellant unsup- makes some day. Appellant alleges bation on the 57th that Texas ported assertions proba that said erroneous of shock refusing accept Corrections tion was no fault of his and he appellant. Unsupported assertions penalized should not be for the trial court’s nothing present brief for review. Ground Appellant rightfully points error. out that 2 is of Error No. overruled. probation timely, request his 3e(a), supra, Art. is the sole Sec. court and had the trial adhered to governing grant statute for the of shock days quest that no action be taken until 60 3e(a) probation. jurisdic- Sec. extends the elapsed, there would be no error from had days tion of the trial court for 180 from the appeal. Under this “erro Court’s Specifically, of execution of sentence. date doctrine claims he neous release” 3e(a) Sec. states: jail-time is entitled to credit for the entire 3e(a). purposes “Sec. For the of this time was section, jurisdiction of a long has held that if This Court a defend- requiring which a sentence confinement ant no fault of his is errone- own in the Texas of Corrections ously released from incarceration he is enti- (of imposed felony) for a conviction tled to flat time credit for the time he was days for shall continue from the date custody. out actually the execution of sentence be- Downe, (Tex.Cr.App.1971); 471 S.W.2d 576 gins. expiration days After the of 60 Tarleton, (Tex. 582 S.W.2d 155 days to the of 180 from Cr.App.1979). the date the execution of sentence actual- ly begins, judge of the court that However, corollary to this doc- imposed may such sentence on his own premise that if the defendant trine is the motion written motion of the de- “moving was a factor” his erroneous fendant, suspend further execution of release he would not be entitled credit. imposed place the sentence the de- parte Moneyhun, 161 Tex.Cr.R. fendant on under the terms (1955), 274 S.W.2d 546 this Court found article, and conditions of if in this appellant’s attorney requested that “when opinion judge the defendant would moving his release he became the factor not benefit from further incarceration in advantage take of a void and cannot now penitentiary.” order_” p. Moneyhun, su- Id. State, In Houlihan v. 579 S.W.2d 213 however, a release pra, without (Tex.Cr.App.1979), this Court first thor- authority. principal statutory of Mon- oughly reviewed the shock law. applied by this Court eyhun has been grant jurisdic- This Court held that the appellant’s, situations similar where 3e(a) very tion in was of a limited nature. was filed and subse- a motion The defendant there was quently erroneously granted. See Ex day.1 on the 126th This Court Massie, 568, 278 161 Tex.Cr.R. the statute so as to refused to construe (1955). S.W.2d 851 filing mere apply the time limits to the (Tex. State, 610 S.W.2d 780 In Adams v. specifically speaks The statute motion. applied Cr.App.1981), panel of this Court motion; granting of a thus the fact an erroneous foregoing principle to attorney may have appellant’s filed probation and held that having grant of shock prior to the trial court requested had controlling. since the defendant jurisdiction to act is not jurisdiction probation to originally a shock enacted the statute extended the court’s 1. As days. days trial court’s legislature, by In 1981 the date of execution of sentence. amendment, extended the trial $10,000.00. imposed probation he could not benefit from the Sentence was on the same date. No was taken. On the requested. erroneous of the relief Depart- same date the trial wrote the Adams, supra, does not indicate whether ment of Corrections was a appellant’s requesting relief was pos- candidate for shock but that Likewise, proper. Tamez v. sibility being kept (Tex.Cr.App.1981), panel Department’s in accordance with the rec- found that the of shock ommendation.1 under the old the 126th void, law was but the defendant would appellant’s On counsel filed a motion receive credit since had filed a motion for shock requesting Again, imposition release. after the of sentence on March , expressly recognized 1982. The motion does mo- not indicate whether that the court did not have until timely requested release. the 60th sentence under Article foregoing We believe that the rules § Y.A.C.C.P., 3e(a), grant shock asserting penalize a defendant for his stat requested and therefore the utory right probation. A defendant 1, hearing court to set a “on or after June penalized if relief he should not be the hearing grant ap- the 1982” and at the requests proper is the pellant shock improper actions of the trial court does the 27, 1982, May day after On the 57th Thus, defendant, order if a become void. sentencing, judge the trial entered an order proba statutorily eligible for shock who is stating he was shock tion, requests consider that the trial court acting pursuant appellant’s motion. statutorily his motion the defined within appear to have been a hear- There does not limits, unilaterally, time the trial court ing any that counsel for the indication erroneously, grants the but appellant present when the State or were defendant is to credit for the time entitled Appellant was re- order was entered. premature release and the date between 2, County on June turned to Tom Green probation at shock sub- 1982 and released on shock Thus, judice appel taches. in the case sub ject to certain conditions contained lant is not entitled to all the time he was on 27, May of 1982. order requested to shock since he 26, 1983, filed a January On the State 1, 1982, day jurisdic released June alleging that on motion to revoke is, He tion attached the trial court. appellant commit- or about the same date however, days to the 7 entitled driving motor vehicle ted the offense of 27, 1982, prematurely May released from upon public road while intoxicated. Sub- 2, 1982. June 1983, 9, hearing sequently on March judgment Appeals The of the Court of appellant The conducted on said motion. reformed, granting appellant jail time cred- plea entered a of “true” to the motion’s 31, through May it from heard. The allegations. Evidence was respects, 1982. In all other appellant’s probation. court revoked of the trial court and the Court effect, suspension setting order aside is affirmed. of the execution of sentence of March only for time gave credit ONION, Judge, dissenting. Presiding appeal was actual confinement. Notice of released on an given, and March Appellant was convicted on appeal bond. substance, delivery of a controlled cocaine, plea guilty before Appellant’s to-wit: on his dated June brief Ap- punishment the court. The was assessed 1983 was filed the Austin Appellant ad- peals 1983. years’ imprisonment and a fine of on June proba- prior guilty plea. to his had filed no motion for grounds vaneed three of error. He com- tion. The State’s motion for dismissal was plained the court appellant’s petition abused its discretion in denied. We revoking probation, claiming discretionary evidence review to determine showed that drinking prob- Appeals’ because of his correctness of the Court of deci- lem he could not conform sion. his conduct to the requirements of probationary condi- § 42.12, 3e(a), V.A.C.C.P., Article reads: urged tions. He also equal he was denied section, purposes “Por the of this protection of the laws because some other jurisdiction of a which a sen- County defendant in Tom Green had his requiring tence confinement in the Texas punishment following reduced revocation imposed of Corrections is probation.2 ground In his third he ar- (of felony) for conviction shall continue gued give the court failed to him credit for days for 180 from the date the execution all the time on his sentence to which he actually begins. the sentence After entitled, that the court acted to expiration days of 60 juris- when it didn’t have of 180 date diction, and he was released without execution actually sentence be- own, given fault of his and he should be gins, judge imposed of the court that credit for the time proba- he was on shock may such sentence on his motion or own

tion. defendant, on written motion of the sus- (other On June judge pend further execution of the sentence than the who imposed place pro- the defendant on tion) entered Correcting an “Order Sen- bation the under terms and conditions of acknowledging tence” the court had acted article, if in the prematurely in shock the defendant would not benefit from yet when it jurisdiction, did not have and further penitentiary. incarceration in a erroneously released may Probation under this sec- Corrections, and only if: was entitled to spent credit for time on “(1) eligi- the defendant is otherwise ap- and while free on an article; ble for under this peal bond and until taken custody by into virtue of the order appel- of that date. The “(2) the defendant had never before lant was ordered arrested and returned to penitentiary been incarcerated of Corrections. serving felony; a sentence for a Based on such order the State moved to “(3) the offense for the de- appellant’s dismiss appeal. fendant other than was convicted was 19.02, 20.04, those defined Section The Austin Court of Appeals affirmed 22.021, 22.03, 22.04(a)(1),(2), (3), or 29.- reforming the conviction the sentence in an 03, 36.02, 38.07, felony 71.02 or a unpublished per panel opinion. curiam degree the second under Section 1983) (Tex.App. v. State —Austin Penal Code. (No. 3-83-109-CR). Setting aside the question trial court’s In Houlihan v. 579 S.W.2d 213 enter the Correcting “Order Sentence” (Tex.Cr.App.1979),this Court reviewed circumstances, the time and under the original enactment of the shock held the court Texas, erred law and observed giving appellant credit for the time was to the district court erroneously released on shock very limited nature. There Houlihan was custody and for the time he day was out of on the 126th following began, bond revocation of after the execution of the sentence support 2. There is no evidence in the record to brief. such assertions found in the juris- County Judge

and this held the court had cient to show the acted un lost (1925), diction at the of the 120th as der Article V.A.C.C.P. reasons, provided original enactment.3 and decided case health Moneyhun left the void condition pre- In the instant case the court acted county. maturely acquiring jurisdiction prior to un- statute, der the and we are confronted with distinguishing parte After between Ex question of whether that should affect Griffin, 158 Tex.Cr.R. 258 S.W.2d 324 appellant’s claim of time credit his sen- (1953), parte Morgan, and Ex 159 Tex. tence. (1953), Cr.R. 262 S.W.2d 728 on one hand, parte Tex.App. and Ex Wyatt, It seems well settled that where a de (1891), hand, 16 S.W. 301 on the other mistakenly fendant Moneyhun’s this Court held that when at- no fault leased incarceration requested (Moneyhun) torney his release of his own he is entitled to “flat time” moving factor and could not became the liberty. credit for the time he was at Ex part advantage take of a void order on (Tex.Cr. parte 471 S.W.2d 576 Downey, parte also Ex county judge. See App.1971); Esquivel, 531 parte Ex S.W.2d Williams, (Tex.Cr.App. 301 S.W.2d Tarlton, (Tex.Cr.App.1976); parte Ex 1957).4 (Tex.Cr.App.1979); Ex 582 S.W.2d 155 (Tex.Cr. Pizzalota, parte S.W.2d principle Moneyhun was later if App.1980). And this is true even Massie, applied 278 S.W.2d 851 releasing or official is institution unaware pro- (Tex.Cr.App.1955). applied for Massie legal impediment to release. Ex bation, given was convicted Tarlton, parte Downey, supra; was af- “straight time.” His conviction supra, or if the release is due to a clerical of this appeal. The mandate firmed mistake, Pizzalota, supra. However, the trial court issued. for the first time. true, however, granted probation then It is also that if the de held the trial court “moving obtaining In Massie this Court fendant was a factor” authority grant probation enti release he would not be was without mandate, and Massie after issuance of the tled to credit in his sentence. See Ex served to credit for time 274 was not entitled Moneyhun, 161 Tex.Cr.R. S.W.2d Money- illegally granted probation. (1955). Moneyhun confined for on the 546 was by saying extensively stretched days judg three hun was 120 in as a result of moving in release on factor days, he 41 his attor Massie was ments. After served mandate of the county judge probation and re after issuance ney approached the pre-trial motion for he had filed a Moneyhun’s release of his because quested because the court noted probation. This so Taylor he leave was health and on the condition appli- upon the it was incumbent released and left because County. He was from the rule an- to exclude himself expiration of the 120- cant county, but after the was in and the record Judge Moneyhun, nounced day-period County he returned. The probation on as to whether release him and confined silent ordered re-arrested then mandate was the the issuance of the days previ 120 not after to serve the balance of independent action judge refused ha direct ously served. A district subsequent request for upon a corpus Moneyhun appealed. relief beas by Massie. not suffi This Court stated the record was Morgan escape the Court ob- 3e(a), In to confinement. was amended 1981 § 3. Article moving day Morgan personally jurisdiction from the 60th was not extend the court’s served days, giving securing of 180 which resulted his release factor days than it had under the prisoner’s par- courts 60 more agreement between from a secret original enactment. Wyatt prisoner re- judge. In ents and request. large at at his own mained point out Court was careful to In Griffin by part did he on Griffin’s no conduct State, (Tex. places v. it limitations filing Adams S.W.2d upon by relied Court of Cr.App.1981), probation. appellant motion for shock case, Appeals ap in the instant cannot the fact his counsel be faulted There, plied the rule of after Moneyhun. filed a motion to the time the court incarcerated, convicted and he Adams was act, acquired particularly jurisdiction timely probation” filed for “shock more specifically requested ac- where the motion However, days after sentencing.5 than 60 acquired jurisdic- the court after not released on shock Appellant tion. did not ask for that the court until after had lost court, not entitled. The with- which was Further, a motion. such Adams was being present, out the eligible not view of prematurely. Appellant was manslaugh involuntary the conviction for from the Cor- not released prohibits ter “shock for which statute June re- rections until 1982 and then probation.” Moneyhun Thus the rule of County turned to Tom Green moving since applicable Adams was a days placed more than 60 obtaining an factor sentencing. did request improp- an State, (Tex.Cr. Tamez er act. While acted his attor- App.1981), bevy Ta involved of miscues. not, circumstances, under the ney, he was pretrial mez filed a in the ac- moving premature factor court’s specific pro request without a for “shock tion. I hold that is entitled would Following guilty his plea bation.” before 27, 1982 to credit on his sentence from court, punishment he was assessed until because he still June imprisonment $5,000.00 years’ five and a dates, those he is confinement on sentencing fine. In on the as the same for the entitled to credit time he was plea guilty, the court “shock liberty but he is not entitled probation” before it had to do liberty for time at to the credit attempted so. It then sentence Tamez Allen, 548 S.W.2d bond. than 60 nor not less more than (Tex.Cr.App.1977); su- Tamez v. When Corrections. pra. did pro the court release Tamez on “shock I reform the Thus would bation,” it was after the had lost Appeals accordingly, and for jurisdiction to do In holding so. Tamez majority’s same reason dissent was not entitled credit on sentence judg- views as to reform of whose while on the Court cited Adams. ment of differs. appellant Stasey’s In the instant case the filed a motion attorney for “shock J., CLINTON, joins opinion. this authority the tion” court had the before TEAGUE, Judge, dissenting. grant shock but the rec- ognized the situation re- expressly and is that is before this Court The issue quested court to on or the (Mickey)Stasey, appel- Paul whether John 60-day-period by after the set statute. lant, the to have the records of is entitled outset it that Corrections reflect his

At the should be observed of that 1982, eligible on March was sentence commenced his question. continuously statute in it is has under the And and that he served § 3e, question while V.A.C. should be answer- clear that Article sentence. dis- C.P., upon respectfully I to the time ed in the related limitations affirmative. implicit holding that majority’s grant probation, the court’s sent to the reflect, was filed Adams does an the motion for 5. While the 6, 1978, August shows 1978. July the record in that case and examination and was sentenced on March Adams question the should be answered in upon the which Ex parte Moneyhun, supra, negative. relies, in in part: which this Court stated Wyatt we think here “... the case is con unlawfully decision release Sta- But, trolling.” case Wyatt the cannot be sey on after he had commenced controlling light in of what this Court held serving his sentence in the supra, Griffin, prisoner in that such a is solely by Corrections made the trial escapee. only through not an It is that judge person, in this cause and no other theory legal prisoner, as that a such Sta including Stasey. clearly The record re- sey, can be held not to be continuously Stasey nothing that flects had to do with serving But, Stasey his sentence. is no judge’s decision to order his re- I, escapee of an you more than or and the lease, release; and he did not cause his majority does suggest imply not even or instead, Stasey the was released from De- might that he be. partment of the Corrections because trial judge him, defendant, through told the authorities to release is that It true if a own, I they May did on am of his prematurely fault is errone- sure, quite however, incarceration, ously that when the released he trial is en- unlawfully judge Stasey ordered to flat time released titled credit for the time was probation”, acting good custody. Morris, to “shock he was out of Ex faith, by (Tex.Cr.App.1982). I do not mean This dissent to S.W.2d 754 rule of But, suggest imply originated or it the otherwise. makes law was to overcome harsh- that, prompted notwithstanding no difference what his act: the rule When ness of that acted, acting prisoner unlawfully color without released authorities, legal authority, authority through or no fault of kind. his own, escapee. he was deemed to an Of every single judicial I believe act course, if it was shown that release Stasey’s that has occurred in case since some resulted occurred fault on Therefore, is ab void initio. prisoner, prisoner part then agree I with the the Austin statement However, escapee. deemed to be an unpublished made in its lies the therein distinction. opinion, that “Because was never legally supra, on shock he is not in In Griffin, serving position complain had of matters connec- defendant commenced six sentence, tion with the revocation thereof.” month trial How- misdemeanor ever, unlawfully I believe that most in that ordered the certainly cause complain County failure of the Bowie entitled defendant released from give jail placed him the time on misdemeanor authorities credit Jail This, legally lawfully do at that that he is due on his sentence. he could not time. Subsequently, County Bowie Sheriff contention, rejecting Stasey’s the ma placed him the defendant and back arrested erroneously jority upon relies jail could serve county that he so 19, 274 Moneyhun, 161 Tex.Cr.R. S.W.2d remainder of the months had six (1955), which in turn relied punishment as part assessed been parte Wyatt, Tex.App. upon Ex the case. (Tex.Cr.App.1891). What ma S.W. overlooks, in jority parte Griffin, supra, its reliance This Court those decisions, relying upon in Ex Ex 9 Okla.Cr.R. parte Eley, this Court perti- (Tex.Cr.App.1953), 130 P. it “deemed Griffin, which is, point,” majority cites nor nent and and which it held which neither dis cusses, theory if rejected legal an that the defendant Griffin was entitled to unlawfully prisoner that he be credited the time official orders leased, liberty prisoner is to treated as an under the notwithstand- judge was not escaped prisoner, ing which is the basis for this the fact that the trial supra, holding legally parte Wyatt, authorized to Court’s pertinent part, implicitly held leased from confinement was void ab ini that Griffin was not to be treated as an tio. Because Stasey nothing had to do instead, escapee; he was to be treated as a with the judge’s trial decision unlawful “trusty.” quoted It adopted and the fol- ly order him penitentia released from the lowing, which the Oklahoma Court had ry, escapee. not an He is entitled stated in Eley, supra: to have the records petitioner in this case did no more Corrections reflect that his sentence com

than intelligent other being human menced March and that he has would have done under continuously like circumstanc- served that sentence. Ex is, home, go es—that parte Griffin, supra. when the court majority’s To the decision, who had sentenced him ... told him supported which is not by any could do so—and pertinent legal a rule could authority, not be and which holds established, otherwise, technical or hold- I contrary, respectfully dissent. ing him to escapee be an and liable to

reincarceration, placing without courts, sheriffs,

hands of county and

prosecuting attorneys power to de- every judgment

feat of a court of record state,

entered permit and them to impose

harass and the unfortunate

members of our citizenship, happen who

to be convicted and sentenced for a MIDDAUGH, Jr., Vernon Lee crime, during period, an by plac- endless Applicant, ing them in to-day releasing to-morrow, them cause, with or without Texas, Respondent. The STATE of caprice as their might suggest. peti- tioner in this case was in custody No. 69415. the sheriff subject to his call at all Texas, of Criminal times until the prison En Banc. sentence, and legal was in effect a ‘trusty.’ Eley, supra, at 823. Jan. instance, In this there was no original judg- conviction. The ment and sentence were never lawfully va-

cated, nor was ever released from

confinement—until the trial judge unlaw-

fully ordered him released from the De-

partment of Corrections to the

department of Tom County. Green

It is axiomatic that when a pronounced,

sentence are and no appeal is

taken, and a commitment issued and the

prisoner is delivered to custody Corrections, as occurred in case,

Stasey’s legal there are ways few

that would have him lawfully enabled to be

released before his sentence was satisfied.

The method Stasey’s release oc

curred in this instance is not one of those

legal ways. Because acted

unlawfully, ordering Stasey his act of

Case Details

Case Name: Stasey v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 30, 1985

Citation: 683 S.W.2d 705

Docket Number: 1140-83

Court Abbreviation: Tex. Crim. App.