## NO. 12

- 23

- 00127

- CR

IN THE COU R T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

BARDUL AJRO , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM T HE 241ST

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION Appellant, Bardul Ajro, appeals his conviction fo r the offense of theft. In two issues, he argues that the trial court erred by failing to give him credit for his full amount o f presentence jail time

. We affirm

. B ACKGROUND O n November 21, 2020 , Appellant committed the offense of theft of property valued at le ss than $2,500.00
, and subsequently posted a $10,000.00 bond to secure his release from the Smith County Jail

. 1 He was indicted for the offense on September 9 , 2021 , and his bond
increased to $30,000.00

. For reason of insufficien t bond, o n Sept ember 23, an arrest warrant issued for Appellant ( who was already serving a state jail sentence for an unrelated offense )

. Appella nt was served with the arrest warrant while in the custody of Collin County on Apri l 1, 2022, and posted the in creased bond on April 28 , while in the custody of Rockwall County

. On March 29, 2023 , Appellant pleaded “ guilty ” to the theft offense

. The trial court ad

judicated Appellant “ guilty, ” but postponed sentencing based on defense counse l ’ s representation that Appellant ’ s time credi t as calculated by the court was incorr ect

. Bef ore

1 The record is unclear re gard ing ex actly when Appellant was arrested and how long he was confined befo r e pos ting bond. S imilarly, although Appella nt ’ s defense counsel stated that all of Rockwall, Tarran t, Collin, and Wise Coun ties had custody of Appellant during the relevant time p eriod , it is not apparent exactly when he was at each different facility or when he was moved from on e county ’ s custody to another.2 sentencing , Appellant filed a Motion for C redit on Sentence asking the trial court to recalculate
the a mount of time credit. Thereafter, on April 10, the trial court hel d the senten cing hearing, imposed a sentence of twenty

- four months ’ imprisonment , and credited Appellant for twenty

eight days of jail time

. This appeal fol lowed

.

T IME C REDIT
In t wo issues, Appellant contends that the trial court erred by (1) crediting his sentence with only twenty

- eight day s of jail time and (2) entering same in the judgment of conviction

. 2 Applicable Law In all criminal cases, the trial co urt is required to give the defendant credit on his sentence
for presentence jail time

— the time during which h e was “ in jail for the cas e . . . from the time of
his arrest and confinement until his sentence by the trial court[

. ] ” T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.03 § 2(a)(1) (West 2023)

. Based on Article 42.03 ’ s plain language, “the credit at issue
relates not just to any time the def end ant spent in carcerated before conviction.” Collins v. State , 318 S.W.3d 471, 473 (Tex. App.

— Amarillo 2010, pet. ref ’ d)

. “Rather, it is the time one is incarcerated for the case in which he is ultimately tried and convicted.” Id. The statute ’ s language d oes not authori ze time credit in one case for confinement in another case. In re
Ralston , No. 12

- 22

- 00060

- CR, 2022 WL 1121050, at *1 (Tex. App.

— Tyler Apr. 14, 2022) (orig. proceeding ) (mem. op., n ot designated for publication )

. In other words , A rticle 42.0 3

“ requires tha t the trial court credit a defendant ’ s sentence only for time spent in jail between
arrest and confin ement and subsequent sentence on a particular charge

. ” Cooper v. State , No.
05

- 19

- 00229

- CR, 2020 WL 3496365, at *3 (Tex. App.

— Dallas June 29 , 2 020 , no pet. ) (mem. op., not designated for publication) (emphasis in original) (citing Ex parte Crossley , 586 S .W.2d 545, 546 (Tex. Crim. App. 1979) )

. When a person is confined ( either physically or constructively ) by an other jurisdiction, he
is confin ed on a particu lar charge only if a detainer or “ hold ” is lodged against him by that jurisdiction. Ex parte Bynum , 772 S.W.2d 113, 114 (Tex. Crim. App. 1989) (op. on reh’g)

. The

2 Typically, the correct avenue to seek additional presentence jail time credit is th rough a motion for judgment nunc pro t u nc, but w hen ( as here) the alle ged failu re to award credit involves the ex ercise of judicial reasoning, a judgment nunc pro tunc is not the proper remedy and an app ellate court may address the merits of the claim

. See Benefield v. State , No. 02

- 14

- 00099

- C R, 2015 WL 4606273, at *7 n.10 (Tex. App.

— F ort Worth July 30, 2015 , pet. r e f ’ d ) (mem. op., n o t desi gn at ed for publication ) ; Blackerby v. State , No. 03

– 11

– 00272

– CR, 2012 WL 6097306, at *3 (Tex. App.

— A ustin Dec. 5, 2012, no pet.) (mem. op., not desi gn at ed fo r publicat ion)

.3 rationale for allowing a time credit under a detainer is that the hold results in a “change i n the basis for (a prisoner ’ s) confinement.” Id. at 115. I f no such detainer is filed, the defend ant must show by som e o the r evidenc e that the incarceration in another jurisdiction is for the same case. H

annington v. State , 832 S.W.2d 355, 356 (Tex. Crim. App. 1992)

. A nalys is Appellant appears to suggest that he should be credited for t ime he spent i ncarcerated from Septemb er 23, 2021 (the date the Smit h County arrest warrant issued) , until April 28, 202 2 ( the date Appell ant posted the increased bond) , because the warrant constitute d a “ hold ” from Smith County for the theft offense. Ap pellant further submits that “ if notice of the hold

. . . should have be en pro vided [to another ju risdiction] but was not[, ] ” the lack of su ch notice may
have “ caused [Appellant] to have a reduced time credit. ” That is, he claims that because Smith County did not prompt ly inform the relevant jur isdiction or j urisdic tions of the alleged “ hold , ” Appellant should receive additio nal time credit fo r the delay. The State does not dispute that Appellant i s entitled to credit for the time elapsed between when App ellant was serv ed wit h the Smith County wa rrant f or the subject theft offense and when he posted the increased bond.
Howeve r, t he State disagr ees tha t Smith County ’ s issuance of an arrest warrant for the theft
offense began Appellant ’ s confinement for that offense

. Texas courts that have examined the issue have determined that issuance of an arrest

warrant related to one offen se while the in dividual is incarcer ated in another jurisdiction o n a second offense , without a detainer or hold, d oes not trigger the accumulation o f jail time credit
for the first offense. 3 In Acosta v. State , the State moved to re voke a criminal defenda n t ’ s community supervision for violating his probationary conditions in May of 2001. Acosta v.
State , No. 08

- 01

- 00509

- CR, 2003 WL 22 451496, at *1 ( Tex. App.

— El Paso Oct. 28, 20 03 , no pet. ) (mem. op., not designate d for publication)

. The hearing o n the St ate ’ s motion to rev oke
occurred in De cember 20 01, at which Aco sta pleaded “ true ” to the violation and the trial court
sentenced him t o two years ’ im prisonment. Id. at *1. A costa argued that he should receive time
credit f rom the da te the arrest war rant is sued until his sente ncing , a period during which he was
incarcerated a t a federal prison facility

. Id. at *1

- 2. Acosta ’ s probation o fficer testifie d that a capias warrant did issu e in May 20 01, but it was not received at the federal prison facility until

3 Although both cases discussed hereafter are unp ublished , w e may take guida n ce from unpublished opinions to “aid in developing reasoning that may be employed.” Carrillo v. State , 98 S.W.3d 789, 794 (Tex. App.

— Amarillo 2003, pet. ref ’ d).4 October 2001, because the probation office had difficulty locating Acosta within the federal prison system. Id. at *1. Our sister c ourt reaso ned t hat u ntil the federal facility bec ame aware of the warrant, the adverse effects that accompany the filin g of a detainer could not h ave occurred , and the basis for Acosta ’ s confinement did not change

. Id. at * 2 (citing Bynum , 772 S.W.2d at
1 15 ) (hold from another jurisdiction may deny a pri soner privileges and opportunities such as trusty status or early paro le)

. Therefore, Texas did n ot obtain constructive custody o f Acosta
until the date o n which the federal facility received the warrant. Id. at * 3.
Sim ilarly, in Bertrand v. State , the app ellant was arrested in Hardin County in Ma rch
2013 for unau thorized us e of a vehicle , posted bail and was released from custody

. Bertrand v.
State , No. 09

- 14

- 00374

- CR, 2015 WL 2125266, at *1 (Tex. App.

— B eaumont Ma y 6, 2015 , no pet. ) (mem. op., not designat e d for publication)

. He was arrested in Hardin County again in
Octobe r 2013 for public intoxicati on and a separate charge from Harris County and was thereafter first released to the Harris County author ities , then rel eased to the Jefferson Count y authoriti es on other unrelated charges , and then turned over to the Texas Depa rtment of Criminal
Justice

. Id. In December 2013, Bertrand was indicted for the unau thorized use of a vehicle charge in Hardin Cou n ty ; a capias wa rrant issued and was served upon him on D ecember 23 , but Hardin County never issued a hold or detaine r to an y other jurisdiction

. Id. Har din County
authorities finally took Bertrand into custod y for the unau thorized use of a vehicle charge in June
20 14

. Id. The appellate court found that the time Bertran d spent in custody prior to June 2014
was all for unrel ated o ffenses , and that he was no t entitled t o credit toward his sentence for any
of that time

. Id. at * 3

- 4

. The court did not find relevant that t he Hardin County authorities

“ knew ” he was alr eady in carcerate d , because without a detainer or hold, the adv erse ef fects
described as a concer n in Bynum could not have occurred. Id. at * 3

- 4

. Further, Bertrand did not present any evidence t hat the time se rved prior to June 2014 was “ directly attributab le ” to the Hardin County vehicle charge. Id. at *4

. Appella nt admits that Smith County did not p lace a hold or detainer on him related to this

case with any of Rockwall, Tarran t, Collin, or Wi se Counties , a n d he offers no evidence that any portion of his i ncarceration prior to April 2 8 , 2022, was for his theft con viction in Smith County

. Appellant ’ s situation in this case is similar to those of the appellants in Acost a and Bertrand in
that the mere issuance o f a warrant did not change the basis of his conf inement in any other jurisdiction

. His incarceration for se parate, unrelated offe nses in other counti es at the tim e the5 arrest warrant issued ( and thereafter until he was sentenced for the t heft offense in S mith County ) d oes not prove that those separate terms of incarceration were for this cas e , rather than

any o f the other causes fro m the other counties

. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.03 § 2(a)(1)

. The record before us provides no basis to credit Appellant with more than th e twenty

eight days of j ail time credited to him in the judgmen t. To the extent A ppellant claims tha t th e Smith County authorities had some duty to iss ue a formal detainer ( or otherwise inform the other relevant jurisdictions of the warrant ’ s issuance ) , we disagree. E ven presumi ng that Smith County authorit ies knew Appellant ’ s locatio n at a given time, th eir kn owl edge of App ellant ’ s incarce ration in another county on a separate offense
does not “ change the basis for his confineme nt, nor does it alter his status. ” See Gonzalez v.
State , No. 08

- 10

- 00 130

- CR, 2011 WL 2348478, at *2 (Tex. App.

— El Paso June 8, 2011 , no
p et. ) (mem. op., not designated for publication)

. We conclude that the trial court did not err either by crediting App ellant ’ s sentence with twenty

- eight days of jail tim e, o r by entering t his amount of time credit in the judg ment of
conviction. Accordingly, we overrule Appellant ’ s first and second issues.

D ISPOSITION Having overruled Appellant ’ s two issues, we a ffirm the judgment of th e trial court.

B RIAN H OYLE Justice
Opinion de livered November 8 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 8 , 2023

NO. 12

- 23

- 00127

- CR

BA RDUL AJRO , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct .No. 241

- 1569

- 21 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in th e judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be c ertif ied to the court
below for observance.

Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle

, J., and Neeley, J.