## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O
. A P

- 7 6 , 4 3 7

E x p a r t e C L A U S D E T R E F T H I L E S , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P L I C A T I O N F O R A W R I T O F H A B E A S C O R P U S

F R O M D A L L A S C O U N T Y

K E L L E R , P
. J
. , f

i l e d a c o n c u r r i n g o p i n i o n .

As the Court say s, there are two li n es of case s that addre ss time cre dit for out-of-c ustody

defe ndants. An err oneously -re lease d defe ndant is g ener ally entitled to cre d it for time out of custody

. But a defe ndant who is out on bond pending appea l is not e ntitled to cre dit f or time out of custody

afte r the conviction is aff irmed. Applicant’s situation is of the second ty pe, but the Court g rants
relief under a so-ca lled “princ iple of re asonable ness” unde rly ing the first ty pe of c ase.
I would g rant re l i ef

, b u t I would do so without ref ere nce to a nebulous “princ iple of

rea sonablene ss.” The differ ence between ap p l i cant’s case and other appea l-bond case s is thatTHIL ES CONCURRENCE - 2

applicant won in the court of appea ls. I n all of our past case s in which a defe ndant was out on bond pending appea l and his conviction was later aff irmed, the defe ndant had not won at any level in the judicial sy stem. I n eac h of those four case s, the defe ndant sto o d co n v i cted at the time he was 1

rele ased, and his rele ase was j ust a temporary repr ieve unless he co u l d convince a higher court of

the merits of his claims. We have held that, under those circ umstances, the defe ndant had a duty to

surre nder himself to the authorities when mandate issued. Although in thr ee of the four case s the 2

defe ndant was awa

re t hat mandate had issued, the court err s to sug g est that the holdings in those

See Dunn , 976 S.W .2d 208, 210 (Tex. Crim. App. 1998) (def endant appea led conviction, 1
co u rt o f appeals affirmed, petiti ons for discretionary revie w were refused) ; Ex parte Francis , 51 0 S. W. 2 d 3 4 5 , 3 4 5 ( Tex. Crim. App. 1974) (def endant appea led conviction, Court of Criminal Appe a ls aff irmed); Ex parte Rayburn , 146 T ex. Crim. 204, 204, 172 S.W .2d 505, 505 (1943) (same) ; Ex parte Underwood , 94 Tex. Crim . 157, 157-58, 248 S.W. 551, 551 (1923) (same)

. See Dunn , 976 S.W .2d at 211 (“A pplicant was still bound by the terms of the appea l bond, 2 which, like those in Francis , require d his appea ranc e ‘be fore said Court f rom day to da

y and from term to term of same, and not depar t there from without leave of sai d C o u rt , in order to abide the judgme nt of the Court of Appea ls of t h e S t at e o f T exas.’ Ba sed on this lang uag e, like that in Francis , applicant had a duty to appea r whenever the m andate was rece ived and his prese nce was thus r equire d.

. . . Thus, once the mandate issued a nd applicant did not appe ar in the trial court, he violated the ter

ms of his appea l bond.”); Francis , 510 S.W .2d at 346 (quoting Ex parte Salisbury , 98 Tex. Crim. 341, 342-43, 265 S.W

. 696, 697 (Tex. Crim. App. 1924): “A duty likewise rested upon the appellant, and the sureties on his rec og nizance. He might have paid the fine or surre ndere d himself; so might the sureties. None of the office rs of the state had the rig ht to aff irmatively rele ase the appellant or waive the state’s rig ht to the satisfac tion of the judgme nt of the court. They having
no rig ht to do so by aff

irmative action, it is our opinion that their neg lige nce in perf orming the duties which the law imposed upon them would not ope rate to discharg e the appellant from the nece ssity of suffe ring the penalty imposed upon him by the judgm en t o f co n v iction.”); Rayburn , 146 Tex. Crim. at 205, 172 S.W .2d at 506 (“When appellant enter ed into the appea l bond, he bound himself to a ppear befor e the District Court of Palo Pinto County , to abide the judg ment of this court in his
case

. He had not, prior to his arr est, complied with that condition.

. . . I f appellant has been injured by rea son of t he delay in servingthe sentenc e the law imposed upon him, such arises by rea son of his own acts and conduct in failing to do that which he bound himself to do in order to be at liberty during the appeal of his case .”); Underwood , 94 Tex. Crim. at 159, 248 S.W. at 551 (“The appeal bond which the a

ppellant executed r equire d that he appe ar befor e the court in which the judg ment
was re ndere d and abide by the judg ment of the Court of Criminal Appea ls in thi s case .”).THIL ES CONCURRENCE - 3

case s hinge d on such aw are ness. 3

I n t h i s case , applicant preva iled at the court of appea ls. At the time he was rele ased from custody , he had alre ady succe eded in his attempt to procur e relief and he no longe r stood convicted.

I would hold tha t, in these circ umstances, he was relieve d from the duty to e nquire further into the

outcome of the appellate proce eding s.
Iconcur in the Court’s judgme nt.
Filed: Mar ch 9, 2011 Publis h

See previous footnote. The Court also err s to sug g est that the case s hinge on whether the

3 defe ndant “eve r beca

me awa re that

. . . a ca

pias issued for his ar

rest.” Court’ s op. at 6. I n eac h of the prior case s, the defe ndant was either out of custody for a long period of time befor e capia s issued, Dunn , 976 S.W .2d at 209-10 (ca pias did not issue for six y ear s afte r mandate had issued), or it did not mat t er t o this Court whether capia s had issued in a timely fashion (or at all). Francis , 510 S.W .2d at 345(“We are unable to deter mine from the rec ord

. . . whether the cler k of the convicting court forwa

rded such mandate to the sheriff of L ubbock County or not, nor do we deem it nece ssary to so deter

mine. Reg ardle ss of which officia l was dere lict in his duty , t h e fac t rema ins that the appellant was not arr ested on the mandate of this Court, n o r wa s he car ried to the Depa

rtment of Correc tions a s the law require s.”); Rayburn , 146 Tex. Crim. at 204, 172 S.W .2d at 505 (“The re is, howeve r, no direc t evidenc e that the origina l mandate wa s rec eived a nd filed i n the Dis trict Court of Palo Pinto County , nor that a c ommitm ent was issued there on.”). See also U nderwood , passim (no re fer ence to whether

a ca pias issued).